Orr v. Cothron

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:24-cv-00160-MR

ERIC CHRISTOPHER ORR, )

)

Plaintiff, )

vs. ) ORDER

)

)

DAVID COTHRON, 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)(2) and 1915A. Plaintiff paid the filing fee in this matter. [7/2/2024

Docket Entry].

I. BACKGROUND

Pro se Plaintiff Eric Christopher Orr (“Plaintiff”) is a prisoner of the State

of North Carolina currently incarcerated at Maury Correctional Institution in

Maury, North Carolina. On May 28, 2024, he filed this action pursuant to 42

U.S.C. § 1983, based on alleged events at Marion Correctional Institution

(“Marion”) in Marion, North Carolina. [Doc. 1]. Plaintiff names the following

Defendants: David Cothron, identified as an Assistant Superintendent over

programs at Marion; Derek Price, Kevin Freeman, Saint Tapp, and Alecia

Conner, all identified as Unit Managers at Marion; Melissa Becker, identified

as a Case Manager at Marion; and Cindy Haynes, identified as a Program

Supervisor at Marion. [Id. at 1-4]. Plaintiff alleges as follows.

On August 3, 2021, Plaintiff was referred to Restrictive Housing for

Control Purposes (RHCP) at Tabor Correctional Institution for excessive

write-ups for two “A infractions,” dated July 5, 2021, and July 6, 2021,

respectively. [Id. at 5]. On August 11, 2021, Plaintiff saw the “FCC1 board”

to explain that the write-ups were “not true.” The FCC agreed with the RHCP

recommendation. On August 26, 2021, Plaintiff told the “DCC2 board” that

the write-ups were “not true.” The DCC board agreed with the “icon

placement” for 180 days, but also verified that Plaintiff would be released

from RHCP and returned to general population if one of the two write-ups

were dismissed. [Id.]. On September 2, 2021, the July 6, 2021 write-up was

“sent back from Raleigh” to be reinvestigated. Plaintiff’s rights were violated,

presumably during this reinvestigation, because “they” did not speak to the

staff member witness Plaintiff requested. [Id.].

On September 16, 2021, Plaintiff was sent to Marion for placement in

the Rehabilitative Diversion Unit (RDU). On September 29, 2021, Plaintiff

1 Presumably the Facility Classification Committee.

2 Presumably the Director’s Classification Committee.

saw the Disciplinary Hearing Officer (DHO) at Marion, where “[t]he witness

spoke on [Plaintiff’s] behalf and the write up was dismissed.” [Id.]. On

October 9, 2021, Plaintiff submitted a grievance “pertaining to the situation,”

which was accepted by Defendant Price. On October 26, 2021, Defendant

Price responded, denying Plaintiff “[his] rights and privileges.” [Id.]. Plaintiff

presumably appealed the denial of his grievance, and, on November 16,

2021, Defendant Cothron responded, also denying Plaintiff “[his] rights and

privileges.” [Id.]. Defendants Price and Cothron stated that Plaintiff’s

assignment to RHCP qualified him for the RDU. [Id. at 6]. The July 6, 2021

write-up that qualified Plaintiff for the RDU, however, had been dismissed on

September 29, 2021. Plaintiff qualified for medium custody, but “staff refused

to correct when it was brought to their attention.” [Id.].

From September 16, 2021, to September 12, 2022, Plaintiff “was in

chains and shackles” when escorted to and from the shower and the

telephone. By September 2022, Plaintiff’s time in RDU should have

concluded, but he remained on “23/1” status with limited phone access until

June 20, 2023. [Id. at 5]. Because of a COVID-19 outbreak in RDU and

Plaintiff’s reduced recreation time, Plaintiff’s blood pressure had to be

monitored closely for a year, resulting in an increase in his medication. [Id.

at 6]. RDU was overcrowded “with no bedspace in a[n] unhealthy

environment.” [Id.].

Plaintiff claims that Defendants Price and Cothron violated his

Fourteenth Amendment rights by their failure to remedy Plaintiff’s situation

in response to his grievance. [Id. at 6]. Plaintiff alleges that his Eighth

Amendment rights were violated by his conditions of confinement at Marion.

[Id.]. For injuries, Plaintiff claims he suffered “constitutional injury” through

the deprivation of his rights, “hazardous and unhealthful conditions,” and

false imprisonment. [Id. at 7]. Plaintiff purports to seek $100,000 in punitive

damages. [Id. at 9].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, 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, § 1915A requires an initial

review of a “complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity,” and

the court must identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint 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 from 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).

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).

“[T]he Constitution creates no entitlement to grievance procedures or

access to any such procedure voluntarily established by a state.” Adams v.

Rice, 40 F.3d 72, 75 (4th Cir. 1994). “An inmate thus cannot bring

a § 1983 claim alleging denial of a specific grievance procedure.” Booker v.

S.C. Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017). Taking Plaintiff’s

allegations as true and giving him the benefit of every reasonable inference,

Plaintiff has failed to state a claim under the Fourteenth Amendment. That

is, Plaintiff alleges only that Defendant Price accepted Plaintiff’s grievance

regarding “the situation” and that Defendants Price and Cothron both

responded to it and “denied [Plaintiff’s] rights and privileges.” There is no

functional difference between denying access to a specific grievance

procedure and denying relief sought in an accepted grievance. The Court,

therefore, will dismiss this claim.3

The Eighth Amendment protects prisoners from inhumane methods of

punishment and from inhumane conditions of confinement. Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “The Eighth Amendment ‘does

not prohibit cruel and unusual prison conditions.’” Thorpe v. Clarke, 37 F.4th

926, 940 (4th Cir. 2022) (quoting Strickler v. Waters, 989 F.2d 1375, 1381

(4th Cir. 1993)). “It asks instead whether the conditions of confinement inflict

harm that is, objectively, sufficiently serious to deprive of minimal civilized

necessities.” Id. (citation omitted). “Prison conditions may be harsh and

3 To the extent Plaintiff seeks to state a Fourteenth Amendment due process claim based

on the conduct of the reinvestigation of the July 6, 2021 write-up, his allegations are too

vague and conclusory to state a claim for relief. Moreover, Plaintiff also alleges that, after

“the witness” spoke on his behalf before the DHO at Marion, the July 6, 2021 write-up

was dismissed.

uncomfortable without violating the Eighth Amendment prohibition against

cruel and unusual punishment.” Dixon v. Godinez, 114 F.3d 640, 642 (7th

Cir. 1997). Extreme deprivations are required. Hudson v. McMillian, 503

U.S. 1, 9 (1992).

To establish an Eighth Amendment claim, an inmate must satisfy both

an objective component—that the harm inflicted was sufficiently serious—

and subjective component—that the prison official acted with a sufficiently

culpable state of mind. Williams, 77 F.3d at 761. The Supreme Court has

stated that “a prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement unless

the official knows of and disregards an excessive risk to inmate health or

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he 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.”

Id. A plaintiff must also allege “a serious or significant physical or emotional

injury resulting from the challenged conditions.” Strickler v. Waters, 989 F.2d

1375, 1381 (4th Cir. 1993).

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

reasonable inference, Plaintiff has failed to state an Eighth Amendment

conditions of confinement claim against any Defendant. Plaintiff fails to

allege personal participation by any Defendant relative to Plaintiff’s

conditions of confinement. That is, Plaintiff alleges that he remained in RDU

for nearly a year after he had qualified for medium custody, but he fails to

allege who was responsible for his continued placement there. Moreover,

even if Plaintiff had so alleged, the conditions alleged by Plaintiff do not rise

to the level of an extreme deprivation necessary to state an Eighth

Amendment claim based on conditions of confinement. Assuming Plaintiff

improperly remained in RDU, Plaintiff alleges only that he was on lockdown

for 23 hours a day and was shackled during his movements to the shower

and telephone for a period of one year and that he remained on “23/1” for

nine more months. Plaintiff has also failed to allege “a serious or significant

physical or emotional injury resulting from the challenged conditions,”

Strickler, 989 F.2d at 1381, or, for that matter, that any Defendant was

subjectively aware of the substantial risk of harm to Plaintiff. See Thorpe v.

Clarke, 37 F.4th 926, 933 (4th Cir. 2022) (“Eighth Amendment liability comes

into play only where a corrections officer appreciates the harm confinement

conditions impose yet chooses to disregard it[.]”). Rather, Plaintiff alleges

only that, due to the COVID-19 outbreaks in RDU and reduced recreation

time, he “was placed on blood pressure medication that increased.” [Doc. 1

at 6].

Finally, 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).

Plaintiff, however, makes no allegations against Defendants Freeman, Tapp,

Conner, Becker, or Haynes. Plaintiff, therefore, has failed to state any claim

for relief against these Defendants in any event and they will be dismissed.

Because Plaintiff has failed to state a claim for relief, Plaintiff’s

Complaint fails initial review, and the Court will dismiss it without prejudice.

The Court, however, will allow Plaintiff to amend his Complaint to state a

claim for relief.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiff’s

Complaint fails initial review and will be dismissed without prejudice. The

Court will allow Plaintiff thirty (30) days to amend his Complaint, if he so

chooses, to properly state a claim upon which relief can be granted in

accordance with the terms of this Order. Any amended complaint will be

subject to all timeliness and procedural requirements and will supersede the

Complaint. Piecemeal amendment will not be permitted. Should Plaintiff fail

to timely amend his Complaint in accordance with this Order, the Court will

dismiss this action without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff's Complaint fails initial

review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B) for Plaintiff's

failure to state a claim for relief and shall be DISMISSED WITHOUT

PREJUDICE in accordance with the terms of this Order.

IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days in

which to amend his Complaint in accordance with the terms of this Order. If

Plaintiff fails to so amend his Complaint, the matter will be dismissed without

prejudice.

IT |S FURTHER ORDERED that Defendants Freeman, Tapp, Conner,

Becker, and Haynes are hereby DISMISSED as Defendants in this matter.

The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §

1983 form.

IT IS SO ORDERED.

Signed: July 30, 2024

Martifi Reidinger ee

Chief United States District Judge AS

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