Crump v. Carver

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:22-cv-00541-MR

RAMAR DION BENJAMIN CRUMP, )

)

Plaintiff, )

)

vs. )

) MEMORANDUM OF

BEN CARVER, et al., ) DECISION AND ORDER

)

Defendants. )

_______________________________ )

THIS MATTER comes before the Court on Defendants Ben Carver,

David E. Cothron, Dean Locklear, Katy Poole, and Saint T. Tapp’s Motion to

Dismiss. [Doc. 27]. Also pending is the Plaintiff’s pro se “Request for

Injunction.” [Doc. 31].

I. BACKGROUND

The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983 while

he was a pretrial detainee at the Mecklenburg County Jail, complaining of

incidents that allegedly began at the Marion Correctional Institution and at

the Scotland Correctional Institution.1 The Complaint passed initial review

1 The Scotland CI is located in the Middle District of North Carolina. [See Doc. 9 at 1,

n.1]. The Plaintiff is presently incarcerated at the Foothills Correctional Institution in the

Western District of North Carolina.

on the Plaintiff’s due process claims against: Ben Carver, the warden of

Marion CI; Saint Tapp, a unit manager at Marion CI; David Cothron, the

assistant superintendent of programs at Marion CI; and Dean Locklear and

Katy Poole, facility administrators at Scotland CI. [Doc. 9]. The Court

exercised supplemental jurisdiction over the Plaintiff’s North Carolina

negligence claims against the Defendants. [Id.].

The Defendants have now filed a Motion to Dismiss the Complaint

pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil

Procedure. [Doc. 27]. The Plaintiff was informed of his right to respond to

the Motion to Dismiss pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th

Cir. 1975). [Doc. 29]. The Plaintiff filed a Response [Doc. 32], and the time

to reply has expired.

Also pending is the Plaintiff’s “Request for Injunction” [Doc. 31], in

which he asks the Court to enjoin his present prison facility from delaying

and reviewing his outgoing legal mail.

II. STANDARDS OF REVIEW

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal where

the court lacks jurisdiction over the subject matter of the lawsuit. “The plaintiff

has the burden of proving that subject matter jurisdiction exists.” Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir.

1999). Moreover, “a federal court is obliged to dismiss a case whenever it

appears the court lacks subject matter jurisdiction.” Lovern v. Edwards, 190

F.3d 648, 654 (4th Cir. 1999). “A dismissal for lack of standing—or any other

defect in subject matter jurisdiction—must be one without prejudice, because

a court that lacks jurisdiction has no power to adjudicate and dispose of a

claim on the merits.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.

OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).

A defendant may raise a “facial challenge” to subject matter jurisdiction

by asserting “that a complaint simply fails to allege facts upon which subject

matter jurisdiction can be based.” Kerns v. United States, 585 F.3d 187, 192

(4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).

When a defendant makes a facial challenge to subject matter jurisdiction,

“the plaintiff, in effect, is afforded the same procedural protection as he would

receive under a Rule 12(b)(6)” motion. Id. Thus, “the facts alleged in the

complaint are taken as true, and the motion must be denied if the complaint

alleges sufficient facts to invoke subject matter jurisdiction.” Id.

B. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), the central issue for

resolving a motion to dismiss is whether the complaint states a plausible

claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009).

In considering a defendant’s motion, the Court accepts the plaintiff’s

allegations as true and construes them in the light most favorable to the

plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

255 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92.

Although the Court accepts well-pled facts as true, the Court is not

required to assume the truth of “bare legal conclusions.” Aziz v. Alcolac, Inc.,

658 F.3d 388, 391 (4th Cir. 2011). “The mere recital of elements of a cause

of action, supported only by conclusory statements, is not sufficient to survive

a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d

435, 439 (4th Cir. 2012).

The claims need not contain “detailed factual allegations,” but must

contain sufficient factual allegations to suggest the required elements of a

cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);

see also Consumeraffairs.com, 591 F.3d at 256. Namely the complaint is

required to contain “enough facts to state a claim to relief that is plausible on

its face.” Twombly, 550 U.S. at 570; see also Consumeraffairs.com, 591 F.3d

at 255. “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009); see also Consumeraffairs.com, 591 F.3d at 255. The mere possibility

that a defendant acted unlawfully is not sufficient for a claim to survive a

motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588

F.3d at 193. Ultimately, the well-pled factual allegations must move a

plaintiff’s claim from possible to plausible. Twombly, 550 U.S. at 570;

Consumeraffairs.com, 591 F.3d at 256.

III. PLAINTIFF’S ALLEGATIONS

The Plaintiff alleges that the North Carolina Supreme Court vacated

his “active sentence” on December 18, 2020, while he was incarcerated in

the NCDAC.2 [Doc. 1 at 5, 12-14]; see State v. Crump, 376 N.C. 375, 851

S.E.2d 904 (Dec. 18, 2020) (reversing Mecklenburg County Superior Court

convictions for assault with a deadly weapon with intent to kill, possession of

a firearm by a convicted felon, and conspiracy to commit armed robbery).

The Plaintiff further alleges that, between December 18, 2020 through July

2021, there were no warrants, charges, or notice of reinstatement of charges,

and there was no appeal by the State. [Doc. 1 at 14]. During that time, the

Defendants knew or should have known that he was eligible for release as

of December 18, 2020. [Id. at 12-13]. However, they did not investigate his

right to release, or serve him with a notice of his rights or a detainer. [Id.].

2 Formerly the North Carolina Department of Public Safety (NCDPS).

The Plaintiff alleges that he informed Defendant Tapp in mid-January

2021 that the sentence had been vacated, and provided him with copies of

the state court order, certification, and docket sheet, but that Tapp failed to

forward the matter to his supervisors; that Defendant Cothron was informed

of the issue by his subordinates at the Plaintiff’s behest around that same

time, but Cothron failed to speak to the Plaintiff, inquire into the matter, or

inform his superiors; that the Plaintiff informed Defendant Carver of the

matter via a letter that received no response; that Defendant Locklear was

presented a copy of the court order when the Plaintiff arrived at Scotland CI

on March 19, 2021, but he did not speak to the Plaintiff or inquire into the

matter, and said to “just let Raleigh handle it”; and that Poole should have

known that the Plaintiff was entitled to release, but never served him with a

notice of detainer or notice of prisoner’s rights to proceed. [Id. at 12-14].

The Plaintiff claims that “[e]ach Defendant was a state actor for which

the State of North Carolina was responsible for, who purported to act on

behalf of the State in serving a government function, and whom each in

acting out their function were willful participants in joint action with one

another in depriving plaintiff of his constitutional right to Due Process….” [Id.

at 13].

The Plaintiff claims that his “false imprisonment” past the date he

should have been released from custody caused various injuries, including:

severe mental and emotional distress; Major Depressive Disorder and Post

Traumatic Stress Disorder that require treatment; bruises and minor cuts;

and dangerous conditions in maximum custody. [Id. at 5].

IV. DISCUSSION

A. Exhaustion of Administrative Remedies

The PLRA requires a prisoner to exhaust his administrative remedies

before filing a § 1983 action. 42 U.S.C. § 1997e(a). The PLRA provides, in

pertinent part, that “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” Id. In Porter v.

Nussle, the Supreme Court held that the PLRA’s exhaustion requirement

applies to all inmate suits about prison life. 534 U.S. 516, 532 (2002). The

Court ruled that “exhaustion in cases covered by § 1997e(a) is now

mandatory.” Id. at 524 (citation omitted). The Porter Court stressed that,

under the PLRA, exhaustion must take place before the commencement of

the civil action to further the efficient administration of justice. Id.

In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion

requirement requires “proper” exhaustion: “Administrative law ... requir[es]

proper exhaustion of administrative remedies, which ‘means using all steps

that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo

v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no

question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.

199, 211 (2007) (citing Porter, 534 U.S. at 524). Because exhaustion of

administrative remedies is an affirmative defense, defendants have the

burden of pleading and proving lack of exhaustion. Id. at 216.

A prisoner, however, need only exhaust those remedies actually

available to him. Ross v. Blake, 578 U.S. 632, 635 (2016). “Available” means

“capable of use for the accomplishment of a purpose” and that which “is

accessible or may be obtained.” Id. at 642 (internal quotation marks and

citation omitted). Exhaustion is excused “if a prisoner, through no fault of his

own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d

717, 725 (4th Cir. 2008). The Plaintiff, however, must show that

administrative remedies were not available. Graham v. Gentry, 413 F. App’x

660, 663 (4th Cir. 2011).

Finally, it is well-settled that a prisoner may not exhaust his

administrative remedies during the pendency of a Section 1983 action;

rather, he must fully exhaust all steps of the administrative process before

filing his lawsuit. See Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir.

2016); French v. Warden, 442 F. App’x 845, 846 (4th Cir. 2011).

Here, the NCDAC’s Administrative Remedies Procedures (ARP)

establishes a three-step procedure governing submission and review of

inmate grievances. Moore, 517 F.3d at 721. Inmates are required to exhaust

administrative remedies with the NCDAC in accordance with ARP. Id. An

inmate does not exhaust his administrative remedies with the NCDAC until

he completes all three steps of the ARP. Id.

In support of the Motion to Dismiss, the Defendants assert that the

Plaintiff was aware that he was required to exhaust his administrative

remedies, and that the Plaintiff admitted in his Complaint that he failed to do

so before commencing this action. [Doc. 28 at 27; see Doc. 1 at 6-8]. The

Defendants do not address, let alone refute, the Plaintiff's allegation that he

failed to exhaust through no fault of his own because, inter alia: he was told

that any grievance would not be processed if filed; and the ARP cannot be

used to address sentencing challenges. [Doc. 1 at 8; Doc. 32 at 6-7]. As

such, the Plaintiff has sufficiently alleged that, through no fault of his own, he

was prevented from availing himself of otherwise available administrative

remedies. See Moore, 517 F.3d at 725. The Court, therefore, will deny the

Defendants’ Motion to Dismiss for lack of exhaustion. See, e.g., McClary v.

Kalinski, No. 5:18-cv-00102-MR, 2019 WL 3956150, at *3 (W.D.N.C. Aug.

21, 2019) (denying defendant's motion to dismiss where plaintiff claimed that

he attempted to file a grievance but that it “got ripped up” by a staff member).

B. Standing

A dispute is not a case or controversy if the plaintiff lacks standing.

Raines v. Byrd, 521 U.S. 811, 818 (1997). To establish standing, “a plaintiff

must show (i) that he suffered an injury in fact that is concrete, particularized,

and actual or imminent; (ii) that the injury was likely caused by the defendant;

and (iii) that the injury would likely be redressed by judicial relief.” TransUnion

LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-561 (1992)). In other words, a plaintiff must have

a sufficient “personal stake in the alleged dispute” and have a particularized

injury that a court can remedy. Raines, 521 U.S. at 819 (internal quotation

marks and citation omitted).

The Defendants seek dismissal under Rule 12(b)(1) because the

“Moving Defendants do not determine where inmates are housed or when

they are released from State custody.” [Doc. 28 at 12]. The Defendants

argue that, because they lacked the authority to release the Plaintiff from

custody, they did not cause him any injury, and any injury that Plaintiff may

have suffered is not redressable in this lawsuit.3 [Id. at 12-13].

The Plaintiff does not allege in the Complaint that any Defendant had

the authority to release him from incarceration. [See generally Doc. 1]. He

presently argues that the Defendants had a “responsibility” to ensure that he

was timely released from prison as “reasonable jailers.” [Doc. 32 at 1-5]. In

support of this argument, he cites North Carolina law,4 the state court Order

vacating his conviction, and general supervisory liability and negligence

principles. [Id.]. He does not, however, clearly allege facts demonstrating

that the Defendants actually had the ability to release him. See Spokeo, Inc.

v. Robins, 578 U.S. 330, 338 (2016) (“Where … a case is at the pleading

stage, the plaintiff must clearly allege facts demonstrating each element [of

Article III standing].”) (citation and internal quotation marks omitted); see also

3 The Defendants also argue that the Plaintiff failed to demonstrate that he was injured

from being held in NCDAC instead of at MCJ. [Doc. 28 at 9-10]. The Court disagrees

with the Defendants’ characterization of the Plaintiff’s claim. The Court interprets the

Complaint as claiming overincarceration, not incarceration at the wrong location. [See

Doc. 1 at 12-13 (referring to false imprisonment and the right to immediate release)]. This

claim does not warrant further discussion, however, because the Court nevertheless

concludes that the Plaintiff has failed to demonstrate standing.

4 The Plaintiff cites N.C. Gen. Stat. § 15-10.1, which addresses detainers; § 15a-711(c),

which addresses the right to request a speedy trial on a detainer; and § 7A-27(a), which

addresses appeals that lie directly in the North Carolina Supreme Court.

N.C. Gen. Stat. Ann. § 148-4 (“[t]he Secretary of the Department of Adult

Correction shall have control and custody of all prisoners serving sentence

in the State prison system….”).

The Plaintiff’s vague and conclusory allegations that the Defendants

should have acted pursuant to their general responsibilities as jailers, but

failed to do so, are insufficient. Id. The Plaintiff has, therefore, failed to

demonstrate causation or redressability and the Defendants’ Motion to

Dismiss will be granted for lack of standing. See Wright & Miller 13A Fed.

Prac. & Proc. Juris. § 3531.5 (3d ed.) (“Causation may provide one of the

useful means of addressing the question whether the plaintiff has sued the

proper defendant…. If this defendant has not caused the injury, a remedy

directed against him will not relieve the injury.”).

C. Failure to State a Claim

To establish liability under 42 U.S.C. § 1983, a plaintiff must show that

the defendants “acted personally” to cause the alleged violation. See

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). As

such, the doctrine of respondeat superior does not apply in actions brought

under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

A supervisor can only be liable where (1) he knew that his subordinate “was

engaged in conduct that posed a pervasive and unreasonable risk of

constitutional injury;” (2) his response showed “deliberate indifference to or

tacit authorization of the alleged offensive practices;” and (3) there was an

“affirmative causal link” between her inaction and the constitutional

injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation

marks omitted).

The Defendants argue that the Plaintiff has not alleged any facts

showing that the Defendants’ actions deprived him of due process or that

they owed him a duty such that they were negligent under North Carolina

law. [Doc. 28 at 16-24].

As the Court explained supra, the Plaintiff has failed to adequately

allege that the Defendants had the authority to release him from custody.

Accordingly, he has failed to adequately demonstrate that the Defendants

owed him any process, deprived him of any right, or injured him under color

of state law. See Iqbal, 556 U.S. at 678 (“naked assertions devoid of further

factual enhancement” are not sufficient to survive a motion to dismiss). For

the same reasons, he has failed to adequately demonstrate that the

Defendants owed him a duty under North Carolina law such that they were

negligent for failing to carry out a duty. See Stein v. Asheville City Bd. of

Educ., 360 N.C. 321, 626 S.E.2d 263, 267 (2006) (“In the absence of a legal

duty owed to the plaintiff,” a defendant “cannot be liable for

negligence”)(quoting Cassell v. Collins, 344 N.C. 160, 472 S.E.2d 770

(1996), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615,

507 S.E.2d 882 (1998)); see also Steele v. City of Durham, 782 S.E.2d 331,

334 (N.C. Ct. App. 2016) (whether a legal duty exists is a question of law for

the court to decide). Accordingly, the Defendants’ Motion to Dismiss will be

granted for failure to state a claim.

D. Qualified Immunity

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation marks

omitted).

Here, because the Plaintiff has not adequately alleged that any

Defendant violated a constitutional right, they are also entitled to qualified

immunity. Accordingly, the Defendants’ Motion to Dismiss will also be

granted on this ground as well.

E. Request for Injunction

Finally, the Plaintiff has filed a “Request for Injunction” in which he asks

the Court to enjoin his present prison, Foothills CI, from delaying and

reviewing his outgoing legal mail. [Doc. 31].

Courts generally lack authority to enjoin third parties not before it. See

Fed. R. Civ. P. 65(c)(2). “A court ordinarily does not have power to issue an

order against a person who is not a party and over whom it has not acquired

in personam jurisdiction.” Wright & Miller, supra, § 2956; R.M.S. Titanic, Inc.

v. Haver, 171 F.3d 943, 957 (4th Cir. 1999) (“Injunctive relief, by its very

nature, can only be granted in an in personam action commenced by one

party against another in accordance with established process.”). No

Foothills CI employee is a defendant in this action; therefore, the Plaintiff’s

request for injunctive relief with respect to the Foothills CI is denied.

V. CONCLUSION

For the reasons stated herein, the Defendant's Motion to Dismiss is

granted on the grounds that the Plaintiff lacks standing and has failed to state

a claim upon which relief can be granted. The Plaintiff's Request for

Injunction is denied. The Clerk will be instructed to close this case.

IT IS, THEREFORE, ORDERED that:

1. | The Defendants’ Motion to Dismiss [Doc. 27] is GRANTED, and

the Plaintiff's Complaint is hereby DISMISSED.

2. The Plaintiff's “Request for Injunction” [Doc. 31] is DENIED.

The Clerk is respectfully instructed to close this case.

IT IS SO ORDERED.

Signed: February 7, 2024

Martifi Reidinger ee

Chief United States District Judge AS

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