Pettis v. Jones

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:23-cv-00458-MOC

AUSTIN DEVON PETTIS, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU JONES, et al., )

)

Defendants. )

___________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint [Doc. 1]

filed under 42 U.S.C. § 1983, see 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff is proceeding in

forma pauperis. [Docs. 2, 7].

I. BACKGROUND

Pro se Plaintiff Austin Devon Pettis (“Plaintiff”) is currently detained at the Mecklenburg

County Jail (the “Jail”) in Charlotte, North Carolina. He filed this action pursuant to 42 U.S.C. §

1983 on July 25, 2023, against Defendants FNU Jones, Jail Sergeant; D. Peterson, Tactical

Response Unit (TRU) Team Officer; FNU Smith, Deputy Sheriff; FNU Simpson, TRU Team

Officer; and Gary McFadden, Sheriff, in their individual and official capacities.1 [Doc. 1].

Plaintiff alleges as follows. On September 20, 2022, at approximately 2:30 p.m. at the Jail,

Plaintiff was attacked by Defendant Jones while Plaintiff’s hands were handcuffed behind his

back. Defendants Peterson, Simpson, and Smith were present “and did not provide [Plaintiff]

safety and security while [Defendant] Jones punched [Plaintiff] continuously in the face and

1 Plaintiff wrote his Complaint in pencil, and it is very difficult to read. [See Doc. 1]. Plaintiff is

admonished to submit any further pleadings and documents to the Court in pen whenever possible.

body.” [Id. at 6]. “Officer Mr. Smith” photographed Plaintiff’s injuries at 3:00 p.m.2 [Id.].

Defendant McFadden “condoned through policy, both formal and informal, the assault and battery

of plaintiff as well as the conflict of interest by conducting use of force investigation, while being

involved with the incident of use of force in his supervisor capacity.” [Id. at 5].

Plaintiff claims violation of his rights under the Eighth and Fourteenth Amendments for

Defendants’ “failure to protect” and “use of force.” [Id. at 4]. Plaintiff claims he suffered physical

injuries, and he seeks monetary relief, including punitive damages. [Id. at 8].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to

determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or]

fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under

§ 1915A the Court must conduct an initial review and identify and dismiss the complaint, or any

portion of the complaint, if it is frivolous, malicious, or fails to state a claim upon which relief may

be granted; or seeks monetary relief from a defendant who is immune to such relief.

In its frivolity review, this Court must determine whether the Complaint raises an

indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as

fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,

a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, the liberal construction requirement will not permit a district court to ignore a clear

failure to allege facts in his Complaint which set forth a claim that is cognizable under federal law.

Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

2 In addition to the named Defendants, Plaintiff also listed “Mr. D. Smith” as a Defendant on the single

summons he submitted with his Complaint. [See Doc. 1-1]. Plaintiff, however, did not name this individual

as a Defendant in this action and his allegations do not support a claim against him. The Court, therefore,

will not address him further.

III. DISCUSSION

To state a claim under § 1983, a plaintiff must allege that he was deprived of a right secured

by the Constitution or laws of the United States, and that the alleged deprivation was committed

by a “person” acting under color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S.

166, 143 S.Ct. 1444 (2023).

A. Official Capacity Claims

Suits against an officer in his official capacity “generally represent only another way of

pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473

U.S. 159, 165, 105 S.Ct. 3099 (1985) (1985) (quoting Monell v Dep’t of Soc. Servs. of the City

of New York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 (1978)). The Office of Sheriff is not

liable under § 1983 for an employee’s acts “unless action pursuant to official municipal policy of

some nature caused [the] constitutional tort.” Collins v. City of Harker Heights, 503 U.S. 115,

120-21, 112 S.Ct. 1061, 1066 (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036). That is, “[f]or

a governmental entity to be liable under section 1983, the official policy must be the moving force

of the constitutional violation.” Moore v. City of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14,

21 (1997) (internal quotation marks and citations omitted). “Thus, the entity’s ‘policy or custom’

must have played a part in the violation of federal law.” Id. (quoting Monell, 436 U.S. 658, 694,

98 S.Ct. at 2037-38).

Here, Plaintiff sues all Defendants in their official capacities. The official capacity claims

against Defendants Jones, Peterson, Smith, and Simpson, however, are duplicative of the official

capacity claim against Defendant McFadden. As such, the Court will dismiss the official capacity

claims against Defendants Jones, Peterson, Smith, and Simpson. As for the official capacity claim

against Defendant McFadden, Plaintiff alleges that he “condoned” the assault on Plaintiff through

“formal and informal policy.” Taking Plaintiff’s allegations as true and giving him the benefit of

every reasonable inference, his official capacity claim against Defendant McFadden based on a

policy condoning violence against detainees is not clearly frivolous and survives initial review.

B. Excessive Force

The Fourteenth Amendment “protects a pretrial detainee from the use of excessive force

that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To state an

excessive force claim, a pretrial detainee must show only that the force “purposely or knowingly

used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389 (2015).

The standard for assessing a pretrial detainee’s excessive force claim is “solely an objective one.”

Id. In determining whether the force was objectively unreasonable, a court considers the evidence

“from the perspective of a reasonable officer on the scene, including what the officer knew at the

time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396).

Taking Plaintiff’s allegations as true and giving him the benefit of every reasonable

inference, Plaintiff’s Fourteenth Amendment excessive force claim against Defendant Jones

survives initial review as not clearly frivolous.

C. Failure to Protect

“A failure-to-protect claim brought by a pretrial detainee constitutes a due process claim

under the Fourteenth Amendment to the United States Constitution.” McFadden v. Butler, No.

TDC-16-0437, 2018 WL 1394021, at *4 (D. Md. Mar. 19, 2018) (citing Smith v. Sangamon Cty.

Sheriff’s Dep’t, 715 F.3d 188, 191 (7th Cir. 2013)). “Due process rights of a pretrial detainee are

at least as great as the Eighth Amendment protections available to the convicted prisoner.” Hill v.

Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992) (citations omitted). “Thus, the standards for a

Fourteenth Amendment failure-to-protect claim are the same as those for a comparable claim

brought by a convicted prisoner under the Eighth Amendment.” Id. (citations omitted). To show

deliberate indifference under the Eighth Amendment, a plaintiff must allege that the prison official

had actual knowledge of an excessive risk to the plaintiff’s safety. Danser v. Stansberry, No. 13-

1828, 2014 WL 2978541, at *5 (4th Cir. Sept. 12, 2014). In other words, the prison official “must

both be aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

Further, the deprivation alleged must be, objectively, sufficiently serious.” Id. at 235-36 (citation

and internal quotation marks omitted); see Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 723 (4th

Cir. 2010) (“[A] prisoner must allege a serious or significant physical or emotional injury resulting

from the challenged conditions.”) (quoting Odom v. S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th

Cir. 2003))).

Taking Plaintiff’s allegations as true and giving him the benefit of every reasonable

inference, Plaintiff’s claims against Defendants Peterson, Smith, and Simpson based on the failure

to protect him from harm survive initial review as not clearly frivolous.

D. Individual Capacity Claim Against Defendant McFadden

Plaintiff also sues Defendant McFadden in his individual capacity. The doctrine of

respondeat superior, however, does not apply in actions brought under § 1983. See Monell, 436

U.S. at 694. Rather, to establish liability under § 1983, a plaintiff must show that the defendant

“acted personally” to cause the alleged violation. See Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th

Cir. 1977) (citation omitted). In the context of a failure to protect claim, a plaintiff must prove not

only that “prisoners face a pervasive and unreasonable risk of harm from some specific source, but

he must show that the supervisor’s corrective inaction amounts to deliberate indifference or ‘tacit

authorization of the offensive [practices].’” Nichols v. Maryland Correctional Institution—Jessup,

186 F.Supp.2d 575, 583 (D. Md. Feb. 1, 2002) (citing Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.

1984) (internal citation omitted)).

Here, Plaintiff alleges that Defendant McFadden’s employees violated Plaintiff’s rights,

not any personal participation by Defendant McFadden, other than a vague claim about the

conduct of a use of force investigation “while being involved in the incident.” This allegation is

too vague to state a claim for relief and does not implicate a constitutional right in any event. As

such, Plaintiff, therefore, has failed to state a claim against Defendant McFadden in his individual

capacity and this claim will be dismissed.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s individual capacity excessive force claim against

Defendant Jones; individual capacity failure to protect claims against Defendants Peterson, Smith,

and Simpson; and official capacity claim against Defendant McFadden survive initial review as

not clearly frivolous. Plaintiff’s remaining claims will be dismissed for Plaintiff’s failure to state

a claim for relief.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff’s Fourteenth Amendment excessive

force claim against Defendant Jones and Fourteenth Amendment failure to protect claims against

Defendants Peterson, Smith, and Simpson in their individual capacities only and Plaintiff’s official

capacity claim against Defendant McFadden survive initial review in accordance with this Order.

Plaintiff’s remaining claims are DISMISSED.

The Clerk is instructed to mail five (5) blank summonses to Plaintiff to fill out and

separately identify each Defendant, and then return the summonses to the Court. Plaintiff is

required to provide the necessary information for the U.S. Marshal to effectuate service on the

Defendants. When the Court receives the summonses from Plaintiff, the Clerk shall direct the U.S.

Marshal to effectuate service upon all Defendants.

IT IS SO ORDERED.

Signed: November 20, 2023

Koren

Max O. Cogburn if

United States District Judge he