ORTIZ v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTONIO MEDRANO ORTIZ, )

)

Plaintiff, )

)

v. ) 1:24CV764

)

TAMIKA SMITH, et al., )

)

Defendant(s). )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, a prisoner of the State of North Carolina housed at Scotland Correctional

Institution, submitted a pro se complaint under 42 U.S.C. § 1983 and requests permission to

proceed in forma pauperis pursuant to 28 U.S.C. § l915(a). The Complaint names as

Defendants a nurse employed at Scotland Correctional, Kerri A. Cable, and seven officers

or administrators at the prison, Tamika Smith, Charlie T. Locklear, William L. Bullard, Sgt.

Bernie, Officer Barkley, Sgt. Jacobs, and Sgt. Adams. Plaintiff seeks damages and injunctive

relief.

Because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer

or employee of a governmental entity,” this Court has an obligation to “review” this

Complaint. 28 U.S.C. § 1915A(a). “On review, the court shall . . . dismiss the complaint,

or any portion of the complaint, if [it] – (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A(b).

Applicable here, plaintiff “fails to state a claim upon which relief may be granted,”

28 U.S.C. § 1915A(b)(1), when the complaint does not “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility

and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). This

standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. In other words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id.1

For the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C.

§ 1915A(b) because it fails to state a claim on which relief may be granted.

The Complaint contains allegations related to several somewhat connected events

occurring between November 26, 2023 and April 24, 2024. The Complaint describes

1Although the Supreme Court has reiterated that “[a] document filed pro se is to be liberally construed and a

pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted), the United States

Court of Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’s requirement that a pleading

contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal

quotation marks omitted) (applying Twombly standard in dismissing pro se complaint); accord Atherton v. District of

Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent

standards than formal pleadings drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’ that

permits the court to infer ‘more than the mere possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal,

556 U.S. at 697, respectively)).

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Plaintiff as a 54-year old dialysis patient with a number of medical problems and a CPAP

machine to aid him in sleeping. (Docket Entry 3 at 3.)2 It adds that he is a non-smoker, does

not use drugs, and does not associate with a gang. (Id.) In April of 2023, Plaintiff

transferred to Scotland Correctional from a medical unit at Central Prison in Raleigh in order

to receive dialysis treatment. (Id.) The Complaint alleges that Scotland correctional has high

levels of gang violence and that Plaintiff was housed in a “small area compressed with 83

other inmates” who smoked drugs and tobacco products. (Id.) Plaintiff filed a grievance

claiming that he was “ADA approved” and wanted to move to area without as much tobacco

smoke. (Id.) However, no move occurred.

On November 26, 2023, another inmate attacked Plaintiff while he slept, damaging

Plaintiff’s eye. (Id. at 4.) Plaintiff approached Defendant Adams and told her. (Id.) He was

then escorted to the infirmary and, later, taken to a local hospital which then sent him to a

second hospital. (Id. at 4-5.) Doctors at that hospital determined that Plaintiff needed

surgery but they could not do it until the next day. (Id. at 6.) Officers then returned Plaintiff

to prison where Defendant Bernie admitted Plaintiff to restrictive housing and placed him

in a room without a plug for his CPAP machine. (Id.) Plaintiff also allegedly asked

Defendant Bernie for cleaning supplies to disinfect the room, but Defendant Bernie never

moved him to another room or brought cleaning supplies. (Id. at 7.) Some time later,

Plaintiff’s eye became infected and he began to have fever, chills, and diarrhea. (Id.)

2 Citations to page numbers in the record refer to those in the Court’s electronic filing system, not those

handwritten by Plaintiff.

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For reasons that are not clear, Plaintiff did not receive surgery on his eye the next day.

Instead, he went to dialysis treatment. (Id.) The pain in his eye was allegedly severe and

caused the alarm on the dialysis machine to sound, so Plaintiff declared a medical emergency

due to the pain and was taken to the infirmary. (Id. at 8.) Upon arrival at the infirmary, staff

assessed Plaintiff and an unidentified medical provider ordered an assistant to give Plaintiff

Tylenol for his pain before leaving to see other patients. (Id.) Defendant Cable, a nurse at

the prison, saw Plaintiff and asked about the situation. (Id.) A guard explained it before

Defendant Cable then asked Plaintiff about the nature of his emergency. (Id. at 9.) After

Plaintiff explained the pain in his eye, Defendant Cable allegedly told him that it did not

constitute a medical emergency and told the guard to take Plaintiff out. (Id. at 9-10.) At that

point, however, the assistant arrived with a small cup containing four pills. (Id. at 10.)

Defendant Cable allegedly stopped her from handing it to Plaintiff, stated that Plaintiff was

not supposed to receive four pills, threw three of the pills away, and offered the remaining

pill to Plaintiff. (Id.) Plaintiff’s statement of facts is silent as to whether or not he took the

pill, but he attempted to convince her that he was supposed to receive all of the pills. (Id.)

Defendant Cable allegedly shook her head and had the guard take Plaintiff back to his

housing before he could get the attention of the provider who ordered the medicine. (Id.)

At some point, Plaintiff returned to regular housing in the same unit where the original

assault occurred. (Id. at 15.) On February 23, 2024, he allegedly informed Defendant.

Jacobs that he wanted to go to a different location because he did not want to be where he

was assaulted, he did not want to be around tobacco smoke and drugs, and he was “ADA

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approved [and] neeed[ed] to be accommodated.” (Id.) He allegedly repeated this request to

Defendant Jacobs on February 26, 2024, adding that he “had issues” with his bunkmate,

Kevin Osbourne, a heavy tobacco and drug user who “want[s] to take it out on others every

time he does not have something to smoke.” (Id. at 15-16.) Defendant Jacobs allegedly

refused to move Plaintiff, so Plaintiff then made the same request to Defendant Adams on

February 28, 2024, although he did not mention Osbourne. (Id. at 16.) Defendant Adams

allegedly replied, “‘I don’t move nobody.’” (Id.) On March 7, 2024, Plaintiff returned from

eating to discover that his personal property locker had been forced open. (Id.) He then

inquired about his property to Osbourne who allegedly attacked him, causing Plaintiff to first

defend himself, but then run before being attacked with a hard object. (Id.) Plaintiff was

treated somewhat at the prison before being transferred by helicopter to a hospital for an

emergency operation. (Id. at 16-17.) Plaintiff filed grievances which were denied. (Id. at

17.)

Finally, on April 24, 2024, Defendant Officer Barkley took Plaintiff to dialysis. (Id.)

Plaintiff saw one technician at the door assessing another patient, but saw his usual

technician already waiting for him inside. (Id. at 17-18.) As he began to walk in, Defendant

Barkley told him to wait. (Id.) Plaintiff explained that the first technician was only assessing

her patients and that his technician was waiting. (Id. at 18.) Defendant Barkley allegedly

approached Plaintiff in a “threatening manner” while pointing his finger at Plaintiff’s

forehead, saying “let me tell you something, let me tell you something” and pushing Plaintiff

with his belly. (Id.) One of the pushes allegedly caused Plaintiff to fall. (Id.) As he tried

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to get up, his face touched Defendant Barkley’s “man organs” but Defendant Barkley

allegedly still pushed against him. (Id.) Plaintiff looked around to see if there were cameras

filming the incident and, seeing none, he later wrote a grievance demanding that the prison

install cameras in the dialysis unit. (Id.) He also requested an investigation, which was

conducted by Defendant Smith. (Id. at 18-19.) The results of that investigation are not set

out in the Complaint, but it alleges that Plaintiff exhausted the grievance process for this

incident without any relief. (Id. at 19.)

Based on the facts just alleged, the Complaint claims that Defendants violated

Plaintiff’s rights under the Eighth Amendment of the United States Constitution and the

Americans with Disabilities Act (ADA). (Docket Entry 2 at 3.) It seeks $500,000 in

compensatory and punitive damages from each Defendant, declaratory relief that they

violated Plaintiff’s rights, and injunctive relief in the form of a court order directing the

transfer of Plaintiff to a non-smoking facility, the installation of cameras in the dialysis unit

of Scotland Correctional, and the provision to Plaintiff of “ADA equipment” in the form of

over-the-head headphones. (Id. at 9-10.)

As an initial matter, the Complaint nominally attempts to raise claims under the ADA.

However, “the ADA . . . [does] not provide any causes of action against individual

defendants in their individual capacities.” Keith-Foust v. North Carolina Central Univ., No.

1:15CV470, 2016 WL 4256952, at *13 (M.D.N.C. Aug. 11, 2016) (unpublished). Further,

to the extent that Plaintiff seeks to proceed directly against a state agency or to present

official capacity claims against individual Defendants, those statutory disability-related

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claims raise complex issues regarding sovereign immunity. See generally United States v.

Georgia, 546 U.S. 151 (2006); Chase v. Baskerville, 508 F. Supp. 2d 492 (E.D. Va. 2007).3

In this instance, the Court need not grapple with those issues because Plaintiff’s disability

claim fails for a more basic reason:

[T]he ADA [ ] mandates that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The

Supreme Court has held that this provision applies to state prisoners. See Pa.

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) ( “[T]he plain text of Title

II of the ADA unambiguously extends to state prison inmates.”). In order to

state a violation of Title II, a plaintiff must allege that: 1) he or she is a

qualified individual with a disability; and 2) he or she is being excluded from

participation in, or being denied the benefits of some service, program, or

activity by reasons of his or her disability. See Powell v. Nat’l Bd. of Med.

Exam’rs, 364 F.3d 79, 85 (2d Cir.2004); Atkins v. County of Orange, 251 F.

Supp. 2d 1225, 1231 (S.D.N.Y.2003). The second prong requires the disabled

plaintiff to allege that his or her mistreatment “was motivated by either

discriminatory animus or ill will due to disability.” Garcia v. S.U.N.Y. Health

Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir.2001). This animus

requirement reflects the purpose of Title II, which is “to eliminate

discrimination on the basis of disability and to ensure evenhanded treatment

between the disabled and the able-bodied.” Doe v. Pfrommer, 148 F.3d 73, 82

(2d Cir.1998).

Elbert v. New York State Dep’t of Corr. Servs., 751 F. Supp. 2d 590, 594-95 (S.D.N.Y.

2010) (internal parallel citation omitted). Here, the Complaint does not contain facts

establishing that Plaintiff is disabled within the meaning of the ADA. Further, it does not

identify any service, program, or activity from which Defendants allegedly excluded him or

3 Nor can Plaintiff maintain a claim under § 1983 against a state agency or individual defendants employed by

a state agency in their official capacity except (as to the latter) for injunctive relief. See generally Will v. Michigan Dep’t

of State Police, 491 U.S. 58 (1989).

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any facts supporting a finding that Defendants’ actions were motivated by animus or ill will

due to Plaintiff’s alleged disability. Therefore, the Complaint does not state any claim for

relief under the ADA.

Turning now to Plaintiff’s claims under § 1983, the first three Defendants listed in the

Complaint are Tamika Smith, Charlie T. Locklear, and William L. Bullard. The Complaint

appears to contain no allegations at all regarding Defendant Bullard and, therefore, clearly

fails to state any claim against him. As for Defendants Smith and Locklear, the Complaint

contains the above allegation that Smith performed the investigation of the alleged incident

between Plaintiff and Defendant Barkley. It also states that both of these Defendants handled

prison grievances. (Docket Entry 2 at 7.) These Defendants did not somehow violate

Plaintiff’s rights by conducting an investigation or answering grievances. Plaintiff has no

right to any particular outcome for an investigation or any right to an investigation, even a

criminal investigation, enforceable under § 1983. Gomez v. Whitney, 757 F.2d 1005, 1006

(9th Cir.1985); see also Day v. Idaho Dep’t of Corr., No. 99-35427, 1999 WL 1269339 (9th

Cir. Dec. 27, 1999) (unpublished) (applying Gomez in prison setting). Similarly, he has no

right to any particular outcome for grievances he filed or any substantive right to a grievance

process at all. Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008) (no substantive

right to a grievance procedure); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (no right to

any grievance procedure or to access any procedure voluntarily created by the State).

Therefore, the Complaint states no claim against Defendants Smith or Locklear based on an

investigation or their handling of grievances. It is also possible that Plaintiff named these

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three Defendants based on their positions as supervisors at Scotland Correctional. If so, this

attempt to state a claim also fails because theories of respondeat superior or liability

predicated solely on a defendant’s identity as a supervisor do not exist under § 1983.

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). For all of these reasons, the Complaint fails to

state any viable claims against Defendants Smith, Locklear, and Bullard.

The next Defendant listed in the Complaint is Defendant Bernie. As previously set

out, it alleges that when Plaintiff returned to Scotland Correctional after his initial injury and

trip to a hospital, Defendant Bernie placed Plaintiff in a cell where he could not use his

CPAP machine and he did not provide Plaintiff with requested cleaning supplies so that he

could disinfect the cell to help prevent infection in his injured eye. To establish his claim,

Plaintiff must plead facts showing that Defendant Bernie acted with deliberate indifference

to his serious medical needs Estelle v. Gamble, 429 U.S. 97, 104 (1976); Iko v. Shreve, 535

F.3d 225, 241 (4th Cir. 2008). More specifically,

[a] medical need qualifies as serious if it “has been diagnosed by a physician

as mandating treatment or ... is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” [Iko, 525 F.2d at 241]

(internal quotation marks omitted). A defendant displays deliberate

indifference where he possesses knowledge of the risk of harm to an inmate

and knows that “his actions were insufficient to mitigate the risk of harm to the

inmate arising from his medical needs.” Id. (emphasis and internal quotation

marks omitted); see also Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir.

2016) (“To prove deliberate indifference, plaintiffs must show that ‘the official

kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.’ ”

(brackets in original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))).

“[D]eliberate indifference entails something more than mere negligence, ...

[but] is satisfied by something less than acts or omissions for the very purpose

of causing harm or with knowledge that harm will result.” Farmer, 511 U.S.

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at 835. “It requires that a [defendant] actually know of and disregard an

objectively serious condition, medical need, or risk of harm.” De’lonta v.

Johnson, 708 F.3d 520, 525 (4th Cir. 2013) (internal quotation marks omitted).

A plaintiff can satisfy this standard by showing “ ‘that a [defendant] knew of

a substantial risk from the very fact that the risk was obvious.’ ” Scinto, 841

F.3d at 226 (quoting Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015)).

Durand v. Charles, No. 1:16CV86, 2016 WL 7495811, at *4 (M.D.N.C. Dec. 30, 2016)

(unpublished), report and rec. adopted, 2017 WL 389108 (M.D.N.C. Jan 26, 2017).

Plaintiff previously filed a lawsuit naming Defendant Bernie as a defendant based on

Defendant Bernie assigning him to housing where he could not use his CPAP machine on

another occasion. The Court dismissed those claims because Plaintiff failed to allege facts

that would establish that Defendant Bernie was deliberately indifferent to a serious medical

need or that Plaintiff was physically harmed by any temporary loss of the use of the CPAP

machine. Ortiz v. Pinkney, No. 1:24CV262, 2024 WL 2190100, at *2 (M.D.N.C. May 1,

2024) (unpublished), report and rec adopted, 2024 WL 2188903 (M.D.N.C. May 15, 2024)

(unpublished), aff’d, 2024 WL 4579408, (4th Cir. Oct 25, 2024) (unpublished). Plaintiff’s

present claim based on the temporary loss of the CPAP machine fails to state any claim upon

which relief can be granted for those same reasons and should be dismissed. As for the

allegation regarding the cleaning supplies, the Complaint does not contain facts

demonstrating that the lack of supplies constituted a serious medical need known or obvious

to Defendant Bernie. Certainly, Plaintiff’s eye injury was an obvious medical need, but it

was being addressed by other medical providers. There is no allegation that those providers

concluded that Plaintiff’s housing should be disinfected or that Defendant Bernie knew of

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any such conclusion. The Complaint also does not allege facts demonstrating that the

condition of the housing was such that Defendant Bernie would have known of any excessive

risk to Plaintiff. Therefore, the current Complaint fails to state any claim as to Defendant

Bernie.

The Complaint next lists Defendant Cable on the grounds that she denied Plaintiff

proper pain medication when he visited the infirmary on November 27, 2023. In order to

state such a claim, Plaintiff again must set out facts satisfying the standards set out above.

He fails to do so. The Complaint alleges that another provider ordered pain medication for

Plaintiff, that an assistant brought four pills at once, that Defendant Cable threw three of the

pills away, and that she only gave one to Plaintiff while stating that he was not supposed to

receive four pills. A medical record submitted by Plaintiff in support of the Complaint states

that Plaintiff was prescribed Tylenol four times a day by a nurse practitioner but that he

erroneously believed he was supposed to receive four tablets each time instead of one.

(Docket Entry 4-4 at 8.) Cable consulted with the nurse practitioner. (Id.) She then

attempted to provide Plaintiff with the one tablet of Tylenol, he refused it saying “‘get out

of my face.’” (Id.) Based on these facts, the Complaint does not state any claim for relief

against Defendant Cable. As an initial matter, Plaintiff refused the medication offered by

Defendant Cable, which raises questions concerning the seriousness of his medical need and

Defendant Cable’s responsibility for any continuing pain he suffered. Even putting aside

those issues, the allegations in Complaint and the attached medical exhibit support at most

a conclusion that Defendant Cable attempted to provide Plaintiff with the medication she

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believed he had been prescribed, but that she misunderstood the prescription. If true, this

might amount to negligence or medical malpractice on her part, but not deliberate

indifference. Therefore, the Complaint does not state any claim for relief under § 1983 as

to Defendant Cable and the claim against her should be dismissed.

The Complaint next lists Defendant Barkley based on his allegedly bumping Plaintiff

to the floor and continuing to bump him when Plaintiff attempted to get up. This appears to

be an attempt at stating a claim based on a use of excessive force. Regarding excessive force,

“[a]fter incarceration, only the unnecessary and wanton infliction of pain constitutes cruel

and unusual punishment forbidden by the Eighth Amendment.” Ingraham v. Wright, 430

U.S. 651, 670 (1977) (internal citations and quotations omitted). “When prison officials

maliciously and sadistically use force to cause harm, contemporary standards of decency

always are violated . . . whether or not significant injury is evident.” Hudson v. McMillian,

503 U.S. 1, 9 (1992). The primary inquiry thus becomes “whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Id. at 7. The Fourth Circuit has noted “four non-exclusive factors to assist courts in

assessing whether an officer has acted with ‘wantonness’: (1) the need for the application of

force; (2) the relationship between the need and the amount of force that was used; (3) the

extent of any reasonably perceived threat that the application of force was intended to quell;

and (4) any efforts to temper the severity of a forceful response.” Iko, 535 F.3d at 239

(internal quotations omitted). Further, the Eighth Amendment’s prohibition of cruel and

unusual punishments necessarily excludes from constitutional recognition de minimis uses

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of physical force, provided that the use of force is not of a sort repugnant to the conscience

of mankind.’ An inmate who complains of a ‘push or shove’ that causes no discernible

injury almost certainly fails to state a valid excessive force claim.” Wilkins .v Gaddy, 559

U.S. 34, 37-38 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal citations

and some internal quotation marks omitted).

According to the facts alleged in the Complaint, Defendant Barkley gave Plaintiff a

direct order which Plaintiff attempted to ignore. The Complaint explains why Plaintiff

believed the order to be a bad or erroneous one. However, there was nothing illegal or

harmful about it and Plaintiff could have easily complied instead of disputing what

Defendant Barkley told him. Instead, he challenged the order. Defendant Barkley allegedly

responded by pointing at Plaintiff and bumping him with his belly, which caused Plaintiff

to fall. However, nothing in the Complaint supports a conclusion that the fall was Defendant

Barkley’s intent. Further, in attempting to stand up, Plaintiff made contact with Defendant

Barley’s clothed mid-section. Although Barkley did continue to bump Plaintiff at that point,

the Complaint does not contain facts to support any sexual intent by Defendant Barkley as

opposed to a continued desire to use minimal force to communicate to Plaintiff that he was

not to disobey or dispute Defendant Barkley’s orders. Doubtless, the described situation was

embarrassing to Plaintiff, but he suffered no physical harm and embarrassment does not

violate the Constitution. In the end, the Complaint alleges the exact type of push or shove

that does not state a valid excessive force claim because it excluded from the Eighth

Amendment’s protections. In any event, Plaintiff’s lack of physical injury from this incident

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means that he could not receive damages because a prisoner cannot seek damages for mental

injuries without a showing of physical harm. 42 U.S.C. § 1997e. Plaintiff is not entitled to

any compensatory damages and no other relief is appropriate based on the facts alleged. In

particular, Plaintiff requests that the Court order that Scotland Correctional install security

cameras in the dialysis area where the incident allegedly occurred. However, the balance

between general security and the privacy of prisoners receiving medical treatment is a

decision for prison authorities, not the Court. The single alleged incident which did not

result in any injury to Plaintiff could not justify the Court entering an order altering that

balance. For all of these reasons, the Complaint fails to state any claim for relief based on

the incident with Defendant Barkley.

Finally, the Complaint names Sgt. Jacobs and Sgt. Adams as Defendants based on

Plaintiff’s housing location at the time Osbourne assaulted him. According to the Complaint,

Plaintiff asked both of these Defendants to change his housing assignment for various

reasons. It is initially worth noting that Defendant Adams allegedly responded to Plaintiff’s

request that she does not move people. Based on this, it is not clear she even had the power

to transfer Plaintiff. However, even if she did, the Complaint does not state any claim for

relief based on the fact that she and Defendant James did not move him. There is a general

duty on the part of prison officials to protect inmates from assaults by other inmates. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). However, not every assault gives rise to a

constitutional violation on the part of prison officials. Instead, an inmate must show that he

was incarcerated under conditions posing a substantial risk of serious harm and that prison

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officials demonstrated deliberate indifference to the inmate’s health and safety. Id. Here,

Plaintiff alleges no facts showing that he was an inmate particularly likely to be assaulted,

that Osbourne was known to be violent or prone to assault others as opposed to simply being

disagreeable when he could not get drugs or tobacco, or that animosity existed between

Plaintiff and Osbourne such that there was an excessive risk of Plaintiff being assaulted. See,

e.g., id. (involving a vulnerable inmate who was transsexual); Brown v. North Carolina

Department of Corrections, 612 F.3d 720 (4th Cir. 2010) (involving an inmate assaulted after

being placed in a vulnerable position by guards who knew of a grudge held by another

inmate). His allegations appear to be more consistent with negligence, at most. However,

simple negligence fails to implicate the rights secured by the Constitution or the laws of the

United States. See, e.g., Davidson v. Cannon, 474 U.S. 344, 348 (1986) (failure to take due

care, as opposed to deliberate indifference to possible harm, is not the sort of governmental

abuse which the Due Process Clause was designed to prevent); Estelle v. Gamble, 429 U.S.

97, 106, 104 (1976) (only deliberate indifference on part of supervisory official to potential

harm can offend the “evolving standards of decency” in violation of the Eighth Amendment).

Plaintiff must allege facts showing deliberate indifference to a clear risk to his safety and he

does not do so in the present Complaint.

The second reason for Plaintiff’s requested transfer was to move him to an area with

less second hand tobacco smoke. He again refers to his use of a CPAP machine and having

rights under the ADA in raising this claim. As noted above, the Complaint is utterly devoid

of any facts stating a claim under the ADA. It also does not set out facts showing that any

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second-hand smoke somehow prevented Plaintiff from sleeping properly with his CPAP or

caused him to suffer a particular health problem. Further,

imates . . . have no constitutional right to be housed in any particular prison or

housing unit. Meachum v. Fano, 427 U.S. 215 (1976). In decisions concerning

housing of specific prisoners, the courts must defer to the expertise and

discretion of prison officials who are much better equipped to analyze prison

security needs; judicial inquiry must remain limited to whether a particular

prison system or regulation violates constitutional or federal law. See Block

v. Rutherford, 468 U.S. 576 (1984).

Garrett v. Angelone, 940 F. Supp. 933, 942 (W.D. Va. 1996), aff’d, No. 96-7488, 107 F.3d

865 (table) (4th Cir. 1997) (unpublished). The Complaint also fails to identify any potential

alternative housing that Defendants Jacobs or Adams had the authority to move him into.

The possession and use of tobacco products is banned as a matter of statutory law in North

Carolina prisons and is subject to disciplinary action. See N.C. Gen. Stat. § 148-23.1.

Therefore, if inmates were indeed smoking in Plaintiff’s housing area, it was an occurrence

that would be both noticeable and forbidden, which raises questions concerning how often

it could actually happen. Those questions aside, the Complaint contains no allegations

establishing that any housing area available to Plaintiff provided a different situation, i.e. that

inmates in a different housing unit did not also break the law and use tobacco and drugs if

an opportunity arose. Therefore, it fails to demonstrate that Defendants Jacobs and Adams

could have remedied the alleged situation but failed to do so.

Finally, Plaintiff may be attempting to raise a cruel and unusual punishment claim as

to his general housing conditions. There are very high standards for this type of cruel and

unusual punishment claim.

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In order to establish that [he] has been subjected to cruel and unusual

punishment, a prisoner must prove (1) that “the deprivation of [a] basic human

need was objectively ‘sufficiently serious,’” and (2) that “ subjectively ‘the

officials act[ed] with a sufficiently culpable state of mind.’” Strickler v.

Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (second alteration in original)

(quoting Wilson [v. Seiter], 501 U.S. [294,] 298 [(1991)]). Only extreme

deprivations are adequate to satisfy the objective component of an Eighth

Amendment claim regarding conditions of confinement. See Hudson [v.

McMillian], 503 U.S. [1,] 8-9 [(1992)]. In order to demonstrate such an

extreme deprivation, a prisoner must allege “a serious or significant physical

or emotional injury resulting from the challenged conditions,” Strickler, 989

F.2d at 1381, or demonstrate a substantial risk of such serious harm resulting

from the prisoner's exposure to the challenged conditions, see Helling [v.

McKinney], 509 U.S. [25,] 33-35 [(1993)]. The subjective component of an

Eighth Amendment claim challenging the conditions of confinement is

satisfied by a showing of deliberate indifference by prison officials. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[D]eliberate indifference

entails something more than mere negligence ... [but] is satisfied by something

less than acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.” Id. at 835. It requires that a prison official

actually know of and disregard an objectively serious condition, medical need,

or risk of harm. See id. at 837; Shakka v. Smith, 71 F.3d 162, 166 (4th

Cir.1995).

De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal parallel citations omitted).

The current Complaint does not contain allegations satisfying these standards or facts

establishing that Defendants Jacobs and Adams were aware of any such conditions. It fails

to state a claim for relief against them or any other Defendants and should be dismissed

accordingly.

As a result, Plaintiff’s request to proceed in forma pauperis should not be

countenanced, with the exception that in forma pauperis status shall be granted for the sole

purpose of entering this Order and Recommendation.

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Plaintiff has submitted the Complaint for filing, however, and, notwithstanding the

preceding determination, § 1915(b)(1) requires that he make an initial payment if funds exist

for such a payment. A review of Plaintiff’s in forma pauperis application reveals that they

do not. Therefore, the Court will not order any initial partial payment, but will instead order

that Plaintiff’s custodian withdraw funds from Plaintiff’s prison trust account as they become

available.

IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole

purpose of entering this Order and Recommendation.

IT IS FURTHER ORDERED that Plaintiff’s trust officer shall be directed to pay to

the Clerk of this Court 20% of all deposits to his account starting with the month of

December of 2024, and thereafter each time that the amount in the account exceeds $10.00

until the $350.00 filing fee has been paid.

IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A

for failing to state a claim upon which relief may be granted.

This, the 12th day of November, 2024.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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