Dalenko v. Stephens et al
Filing
125
ORDER granting in part and denying in part 100 Motion to Dismiss for Failure to State a Claim; denying 102 Motion for Entry of Default; denying 104 Motion to Strike; denying 112 Motion for Extension of Time to Amend; denying 115 Motion For Relief; granting 123 Motion for Extension of Time to File. The parties are reminded to read the order in its entirety for detailed information. Signed by Senior Judge James C. Fox on 2/26/2014. Copy sent to the plantiff via US Mail. (Edwards, S.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-122-F
CAROL DALENKO,
Plaintiff,
v.
DONALD W. STEPHENS, et al.
Defendants.
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ORDER
This matter is before the court on the Motion to Dismiss for Failure to State a Claim [DE100] filed Defendants Donald E. Harrison and "unnamed prison officers and guards." Also pending
before the court are the Plaintiffs Motion for Entry ofDefault [DE-l 02], Motion to Strike [DE-l 04],
Motion to Extend Time to Amend Claims with Request for Clarification [DE-112], Motion for
Relief[DE-115], and Amended Motion to Extend Time [DE-123]. For the reasons set forth below,
Plaintiffs Motion for Entry of Default [DE-l 02], Motion to Strike [DE-l 04], Motion for Extension
of Time to Amend [DE-l 04] and Motion for Relief [DE-115] are all DENIED; Plaintiffs Motion
for Extension of Time [DE-123] is ALLOWED; and Defendants' Motion to Dismiss [DE-100] is
DENIED in part and ALLOWED in part.
I. PERTINENT PROCEDURAL AND FACTUAL HISTORY
Plaintiff, proceeding pro se, initiated the instant action by filing a Complaint [DE-l] on
March 7, 2012, alleging that Defendants Donald W. Stephens, Shannon R. Joseph, William R.
Pittman, Kenneth C. Titus, Sanford L. Steelman, Jr., Barbara A. Jackson, DonnaS. Stroud, all state
judicial officers, acted under color of state law to deprive her of property, civil liberties, and freedom
- - - - - - - -
without prior notice or meaningful opportunity to be heard in violation of her due process rights
under the Fourteenth Amendment throughout the course oflitigation in state court. Compl. [DE-l].
She alleged that she is entitled to declaratory relief "to protected her federally guaranteed rights in
state superior court" and sought damages against Defendants individually. !d.
On May 22,2012, Plaintiff filed a "Joined Complaint" [DE-9] alleging claims against North
Carolina Court of Appeals Judges Robert C. Hunter, James A. Wynn, Jr., and Sam Ervin, IV.
Specifically, Plaintiff alleged Judges Hunter, Wynn, and Ervin deprived her rights in the course of
her appeal in state court litigation, and she asserted she was entitled to declaratory relief against these
defendant "to protect her rights on appeal in state court" and she sought damages against each
defendant.
In response to the filing of the Joined Complaint [DE-9], the court issued an order on May
25,2012, observing that Dalenko may file an amended complaint once as matter of course pursuant
to Federal Rule of Civil Procedure 15(a), and she appears to have attempted to do this through the
filing of the "Joined Complaint." May 25, 2012 Order [DE-13]. The court observed that "[r]ather
than filing a completely separate document with new allegations and newly-named defendants,
however, Dalenko should have just filed one amended complaint which contains her allegations and
claims against all the defendants." !d. Accordingly, the court ordered Plaintiff to file within 21 days,
"one amended complaint which lists all of the defendants in the caption and contains all of her
allegations and claims." !d.
Plaintiff apparently took this Order to be an invitation to file, without leave, a complaint
which not only named the defendants in the Original Complaint and Joined Complaint, but also
included additional defendants and claims, including those ostensibly asserted in litigation before
7
Senior United States District Judge Malcolm Howard in Dalenko v. Stephens, et al., 5:1 0-CV -432-H
(hereinafter Stephens 1), which was dismissed by Judge Howard in an order filed on July 7, 2011 for
lack of jurisdiction. Stephens 1., 5:10-CV-432-H, July 7, 2011, Order [DE-60]. Additionally,
Plaintiff included allegations that Defendant F. Blare Williams, Assistant Clerk for theWake County
Superior Court, refused to docket a new action for libel against new parties relating to her prior civil
action for libel in Wake County until Plaintiff complied with a 2001 Gatekeeper Order issued by the
Wake County Superior Court. She also alleged that Wake County Sheriff Donald Harrison and
"unnamed" prison officers and guards violated her rights while she was confined in theWake County
Jail from November 2 to November 9, 2009. After receiving leave of court, Plaintiff filed another
amended complaint, denominated "Amended Complaint (II)" [DE-36], making substantially similar
allegations. Summons were issued for Donald Harrison and unnamed prison officers and guards on
July 11,2012 [DE-32].
The state judicial defendants moved to dismiss the claims against them. In an order filed on
January 8, 2013 [DE-94], the court allowed the state judicial defendants' motion to dismiss, and
specifically dismissed Plaintiffs claims against them on the basis of collateral estoppel, the RookerFeldman doctrine, judicial immunity, and quasi-judicial immunity.
Defendant Harrison, on behalf of himself and any unnamed prison guards, also moved to
dismiss the complaint against them, on the basis of insufficient service of process, which the court
denied in an order filed on June 28, 2013 [DE-98]. Harrison and the "unnamed prison officers and
guards" filed their Answer [DE-99] and a Motion to Dismiss for Failure to State a Claim [DE-l 00]
on July 17,2013. That same date, Plaintifffiled a Motion for Entry of Default [DE-102], and one
day later, she filed a Motion to Strike [D E-1 04] the Answer and Motion to Dismiss filed by Harrison.
3
Thereafter, Plaintiff filed a "Motion to Extend Time to Respond or Otherwise Plead in
Response Re:" Harrison's motion to dismiss. The Clerk of Court allowed the motion, and granted
Plaintiff through September 11,2013, to file a response to the motion to dismiss. See August 7, 2013
Order [DE-108]. On September 11, 2013, Plaintiff filed her response [DE-110] to the motion to
dismiss, along with a motion for extension of time to file a memorandum in support of her response
to the motion to dismiss [DE-111]. She also filed a "Motion to Extend Time to Amend Claims With
Request for Clarification" [DE-112], wherein she asks for additional time "to 'plead in response' to
[Harrison's] Motion to Dismiss, by amending the claims against [Harrison and the unnamed prison
guards] once of due course under Rule 15(a)(1)(B)."
On November 7, 2013, Plaintiff filed a Motion for Relief pursuant to Rule 60(b)(l) and (6)
[DE-115], asking the court to reconsider its earlier decision dismissing her claims against the the
state judicial defendants. She then sought, and received, two extensions of time to file a
memorandum in support of her Motion for Relief, which she filed on November 22, 2013 [DE-120].
On January 3, 2014, she filed a "Supplemental Memorandum" [DE-122] in support of her Motion
for Relief. She then filed an Amended Motion to Extend Time [DE-123] to deem her Supplemental
Memorandum timely filed.
4
II. MOTION FOR ENTRY OF DEFAULT AND MOTION TO STRIKE
Under Rule 55(a) of the Federal Rules of Civil Procedure, an entry of default is appropriate
"[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk shall enter the party's
default." Fed. R. Civ. P. 55(a). Here, Plaintiff filed the Motion for Entry of Default the same day
that Harrison and the unnamed guards filed the Answer and the Motion to Dismiss. Because these
Defendants have not failed to plead or otherwise defend, entry of default is not appropriate under
Rule 55(a). Plaintiffs Motion for Entry of Default [DE-102] is accordingly DENIED.
Plaintiff, nevertheless, also moves to strike the Answer and Motion to Dismiss, on the basis
that they were filed two days late. 1 Rule 12(f) allows a district court to "strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent or scandalous matter." FED. R. CIV.
P. 12(f). Motions to strike "are generally viewed with disfavor 'because striking a portion of a
pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory
tactic."' Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting A.
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE§ 1380 (2d ed.
1990)).
As Harrison notes, Rule 12(f) does not explicitly allow for the striking of untimely pleadings.
Additionally, this court is mindful of Fourth Circuit's admonition that "the clear policy of the
1
The court denied Harrison's Motion to Dismiss for Insufficient Service on June 28, 2013;
accordingly, under Federal Rule 12(a)(4)(A), Harrison's Answer to Plaintiff's Amended Complaint II
was due within fourteen days. When considered in conjunction with Federal Rule 6(d), the deadline for
Harrison to file the Answer and Motion to Dismiss was Monday, July 15, 2013. See Fed. R. Civ. P. 6(d)
("When a party may or must act within a specified time after service and service is made under Rule
5(b)(2)(C), (D), (E) or (F), 3 days are added after the period would otherwise expire under Rule 6(a).").
Harrison filed the Answer and Motion to Dismiss on July 17, 2013.
5
[Federal] [R]ules [of Civil Procedure] is to encourage the disposition of claims on their merits."
United States v. Moradi, 673 F.2d 725, 727-28 (4th Cir. 1982) (citing Reizakis v. Loy, 490 F.2d
1132, 1135 (4th Cir. 1974)). The court, therefore, declines to strike the Answer and Motion to
Dismiss, especially when Plaintiff cannot credibly claim she has been prejudiced by the 48-hour
delay in filing. See Khadka v. Rajamani, No. 1:08cv1320 (JCC), 2009 WL 910849, at *2 (E.D. Va.
April 1, 2009) (denying the plaintiffs Rule 12(±) motion to strike an answer filed one day late
because "its tardiness did not prejudice [the plaintiff] in the least" and allowing "the motion to strike
would allow the plaintiff to avoid resolving this case on the merits"). Moreover, based on the
reasons 2 stated in Harrison's opposition to Plaintiffs Motion to Strike, the court finds it appropriate
to deem the Answer and Motion to Dismiss as timely filed. Cf Fed. R. Civ. P. 55(c) ("For good
cause shown, the court may set aside an entry of default .... ); Colle ton Preparatory Acad, Inc. v.
Hoover Universal, 616 F.3d 413, 420 (4th Cir. 2010) (observing that Rule 55(c)'s good cause
standard is "more forgiving" than Rule 6(b)'s excusable neglect standard). Plaintiffs Motion to
Strike [DE-104] is accordingly DENIED.
III. MOTION TO DISMISS
Harrison, along with any "unnamed" parties whose identity is unascertained, moves to
dismiss Plaintiffs claims against them pursuant to Rule 12(b)(6) for failure to state a claim.
As a preliminary matter, the court notes that in addition to opposing the motion to dismiss
on the merits, Plaintiff also argues that Defendants have waived their right to file such a motion
2
Harrison's counsel asserts that he moved to the new Wake County Justice Center on Friday,
June 28, 2013-the same day the court issued its order on the Motion to Dismiss for Insufficient Service
of Process-and then inadvertently calculated the time for filing his responsive pleading as running from
July 1, 2013. See Response [DE-107] p. 3.
6
under Rule 12(g) and under the doctrine of laches. The court finds Plaintiffs argument regarding
laches to be without merit.
As to Rule 12(g), Plaintiff is correct that Rule 12(g)(l) provides that a Rule 12 motion may
be joined to any other motion under the rule, and Rule 12(g)(2) imposes a limitation on filing
successive motions, by providing that "[e]xcept as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a defense or
objection that was available to the party but omitted from its pre-answer motion." Fed. R. Civ. P.
12(g) (emphasis added). Accordingly, "Rule 12(g) requires the defendant to consolidate any Rule
12(b) defenses he may have in a single pre-answer motion." 5B CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE & PROCEDURE§ 1351 (3rd. ed. 2004). Because Harrison and the
unnamed guards previously filed a motion to dismiss pursuant to Rule 12(b)(4) and (5), see [DE-83],
Plaintiff contends that these Defendants have waived their right to file a Rule 12(b)( 6) motion now.
Plaintiff overlooks Rule 12(h)(2), however, which provides that a Rule 12(b)( 6) motion may
be raised in any pleading, by motion for judgment on the pleadings, or at trial. Here, Harrison and
the unnamed guards raised their affirmative defenses discussed in the motion to dismiss in the
Answer [DE-99]. Under the plain terms of Rule 12(g)(2) and Rule 12(h)(2), the court finds that
Harrison and the unnamed guards have not waived their Rule 12(b)( 6) defense, 3 and the court will
accordingly consider the merits of the motion.
3
Even if it were somehow improper for Defendants to file the second motion to dismiss, the
court would, alternatively, construe the motion as one for judgment on the pleadings pursuant to Rule
12(c). See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (treating a Rule 12(b)(6)
motion filed after the defendants' answer was filed as a motion for judgment on the pleadings pursuant to
Rule 12(c)). This, however, has no practical effect on the court's analysis, as the same standard is applied
for a Rule 12(b)(6) or a Rule 12(c) motion. See id. ("[V]iewing the Defendants' motion as a Rule( c)
motion does not have a practical effect upon our review, because we review the court's dismissal de novo
and in so doing apply the standard for a Rule 12(b)(6) motion.").
7
A.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to challenge the sufficiency of
the allegations in the complaint. A motion to dismiss under this rule determines only whether a
claim is stated on the facts alleged; "it does not resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses." Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.
1992). In order to survive a motion to dismiss, the complaint must 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) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating
whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiffl,]" but does not consider "legal conclusions, elements of a
cause of action, and bare assertions devoid of further factual enhancement .... " Nemet Chevrolet,
Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,255 (4th Cir. 2009). Nor does the court accept as
true "'unwarranted inferences, unreasonable conclusions, or arguments."' !d. (quoting Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009)). When considering a
motion to dismiss, the court must keep in mind that" a prose complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551
U.S. at 93 (internal citation omitted). Notwithstanding the courts obligation to liberally construe a
prose plaintiffs allegations, however, the court cannot ignore a clear failure to allege facts which
set forth a claim cognizable in a federal district court. See Weller v. Dep't ofSoc. Servs., 901 F.2d
387,391 (4th Cir. 1990).
8
B.
Facts
The facts, as alleged in Amended Complaint II and pertinent to Plaintiffs claims, are as
follows. On November 2, 2009, Plaintiff was ordered imprisoned for being in civil contempt for
violation of a gatekeeping order in state court. See Amended Complaint (II) [DE-36] p. 4. According
to Plaintiff, she
was held in unusual solitary confinement in Wake County Jail. She was cruelly
deprived of ordinary rights of inmates. Her urgent medical needs were neglected after
she fell unconscious with high blood pressure on 11/4/2009. Guards (3) asked her,
"Are you dead yet?", then slammed her cell door leaving her injured on the floor,
saying, "Let us know if you die!"
Id
Plaintiff also alleges:
106. Sheriff Harrison, and "Unnamed" guards and officers in the Wake County Jail
under his supervision, subjected Dalenko to cruel and unusual punishment when she
was calm and totally cooperative at all times, by holding her in solitary confinement
under 24 bright lights, deprived her of ordinary rights of inmates without cause,
including access to the canteen, a water cup, exercise, and recreation, and attempted
to persuade her to take drugs (Klonopin).
107. SheriffHarrison, and "Unnamed" guards and officers in the Wake County Jail
under his supervision, were grossly and willfully negligent to Dalenko' s health care
and needs in a manner that exacerbated her cruel and unusual treatment: ( 1) when on
her first physical exam on day 1, it was clear she needed immediate professional
medical care when her blood pressure was dangerously high (176/98); (2) when she
asked the meds nurse for a piece of bread or cooking to take with her Aleve for her
arthritis because the Aleve was burning a hole in her stomach, and the Lieutenant
who opened the cell door for the nurse refused the request, even though the nurse
argued that "she needs it"; (3) when on day 3, she collapsed on the floor, said she
needed help when 3 guards entered after a couple ofhours asking her, "Are you dead
yet?", then slammed the cell door leaving her lying on the floor without assistance
or immediate medical care, saying in jest, "Let us know if you die.", not knowing
from one day to the next when or if she would be released.
!d. pp. 20-21. Plaintiffbrings a claim under 42 U.S.C. § 1983, alleging that Defendants violated her
rights "guaranteed under the First, Fourth-Eighth, and Fourteenth Amendments, U.S. Const." Jd. p.
23.
C.
Discussion
Harrison and the "Unnamed" guards advance three separate arguments in support of their
motion to dismiss. First, they contend that Plaintiff was required to exhaust her administrative
remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, and has failed to do so. They
also contend that Plaintiff has failed to allege a waiver of immunity, and therefore any claim in tort
against Harrison in his official capacity must be dismissed. Finally, they argue that Plaintiff has
failed to allege sufficient facts to state a claim. The court will address the contentions in tum.
1.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA") provides that"[ n ]o action shall be brought with
respect to prison conditions under section 1983 ... by a prisoner confined in jail, prison, or other
correctional facility until such administrative remedies are exhausted." 42 U.S.C. § 1997e(a).
"Prisoner" is defined by the PLRA to mean "any person incarcerated for detained in any facility who
is accused of, convicted of, sentence for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S. C.
§ 1997e(h). In an unpublished opinion, the Fourth Circuit has stated that a former prisoner who has
been released is no longer considered incarcerated or detained for purposes of the exhaustion of
administrative remedies requirement. See Cofieldv. Bowser, 247 F. App'x 413,414 (4th Cir. 2007)
(per curiam) (unpublished opinion). This is in accord with every other circuit court of appeals that
has addressed the issue. See Lesesne v. Doe, 712 F.3d 584, 877-88 (D.C. Cir. 2013); Talamantes v.
10
Leyva, 575 F.3d 1021, 1023-24 (9th Cir. 2009); Norton v. City ofMarietta, 432 F.3d 1145, 1150-51
(lOth Cir. 2005); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005); Ahmedv. Dragovich, 297
F.3d 201, 210 (3d Cir. 2002); Grieg v. Goord, 169 F.3d 165, 167 (2d Cir. 1999). Accordingly, "it
is plaintiffs status at the time he filed the lawsuit that is determinative as to whether the§ 1997e(a)
exhaustion requirement applies." Cofield, 247 F. App'x at 414.
Here, there is no indication that Plaintiff was a prisoner in custody of a jail or prison when
she filed any of the complaints in this action. As such, the PLRA's exhaustion of administrative
remedies requirement does not apply to this action, and Plaintiffs claims against Harrison and the
unnamed guards will not be dismissed for failure to exhaust.
2.
Immunity
Harrison also moves to dismiss any claims asserted against him in his official capacity arising
in tort. It is true that under North Carolina law, "[t]he docetrine of sovereign immunity bars actions
against public officials sued in their official capacities." Beckv. City ofDurham, 154 N.C. App. 221,
229, 573 S.E.2d 183, 190 (2002). It is also true that sheriffs are considered public officials for
purposes of sovereign immunity. Summey v. Barker, 142 N.C. App. 688,691 544 S.E.2d 262,265
(2001). Accordingly, courts have dismissed a plaintiffs common law state claims asserted against
a public official in his official capacity where the plaintiff has failed to allege that the official has
waived his sovereign immunity. See, e.g., Robinson v. Bladen County Sheriff Dep 't,, No. 7:1 0-CV146-BO, 2010 WL 4054389, at *4 (E.D.N.C. Oct. 14, 2010) (dismissing the plaintiffs state law
claims against sheriff and sheriff deputies in their official capacities where plaintiff failed to allege
waiver of sovereign immunity through the purchase of liability insurance or through the purchase
of a surety bond).
11
In this case, however, Plaintiff has not alleged any state law claims against Harrison. The
motion to dismiss is DENIED as moot as to this argument. 4
3.
Failure to state a claim
As Harrison and the unnamed guards note, Plaintiff is asserting a claim under§ 1983 alleging
they violated her rights under the Eighth Amendment of the Constitution. They contend Plaintiff
has failed to allege sufficient facts to state a claim against them. In assessing this argument, the court
finds it appropriate to differentiate between the claims asserted against Harrison, and those asserted
against the unnamed guards.
a.
Section 1983 claim against Harrison
Plaintiff asserts her § 1983 claim against Harrison in both his official and individual
capacities. The § 1983 claim against Harrison in his official capacity is treated as an action against
the Sheriffs Office as an entity. See Kentucky v. Graham, 473 U.S. 159, 165066 (1985). A local
government entity, like a Sheriffs Office, cannot be held liable under § 1983 on a respondeat
superior theory ofliability. See Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 694 (1978). Rather,
to establish liability of the entity, a plaintiff must allege facts showing that: ( 1) a government actor
4
Plaintiff has filed a "Motion to Extend Time to Amend Claims with Request for Clarification"
[DE-112], wherein she seeks additional time to "plead in response" to the Motion to Dismiss filed by
Harrison and unnamed prison guards, in order to allege facts pertinent to immunity. For the reasons
discussed above, immunity is not an issue. Additionally, Plaintiff apparently is under the
misapprehension that she may still file an amended complaint "once as a matter of course." See Fed. R.
Civ. P. 15(a)(l)(B) (providing that a party may amend its pleading once as a matter of course within 21
days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b)).
Plaintiff amended the complaint "once as a matter of course" on May 22, 2012, when she filed the
"Joined Complaint" [DE-9] in this action. She no longer has the right to amend "as a matter of course"
and must instead have the opposing party's written consent or seek leave of court. See Fed. R. Civ. P.
15(a)(2); see also AntiCancer, Inc. v. Fujifilm Medical Sys. U.S.A., (S.D. Cal. Jan. 19, 2010) ("The
language of Rule 15 states parties may amend 'once as a matter of course,' not once per defendant as a
matter of course.") (emphasis in original). The Motion to Extend Time [DE-112] is therefore DENIED.
12
deprived the plaintiff of her federal rights; and (2) the harm was the result of municipal policy or
custom. !d. "This requirement limits municipal liability under section
1983 to those actions for which the municipality is actually responsible by distinguishing between
acts attributable to the municipality and acts attributable only to municipal employees." Hill v.
Robeson County, 733 F. Supp. 2d 676,683 (E.D.N.C. 2010) (citing Ed. ofCounty Comm 'rs ofBryan
Countyv. Brown, 520 U.S. 397,403-04 (1997) andRiddickv. Sch. Bd. ofPortsmouth, 238 F.3d 518,
523 (4th Cir. 2000)). A policy or custom for which a local government entity may be held liable may
arise in four ways:
(1) through an express policy, such as written ordinance or regulation; (2) through the
decisions of a person with final policymaking authority; (3) through an omission,
such as a failure to properly train officers, that "manifest[s] deliberate indifference
to the rights of citizens"; or (4) through a practice that is so "persistent and
widespread" as to constitute a "custom or usage with the force of law."
Lytle v. Doyle, 326 F.3d 463,471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215,218 (4th
Cir. 1999)).
Assuming that Plaintiff has alleged sufficient facts to show a constitutional violation, which
is discussed below, she nevertheless has failed to allege any facts which give rise to the inference
that the constitutional violation was a result of a custom or policy of the Sheriffs Office. She fails
to allege that an express policy caused any constitutional violations. She fails to allege that any
constitutional violation was caused by a decision of Harrison. She fails to allege that the Sheriffs
Office failed, for example, to properly train its sheriff deputies. Finally, she fails to allege facts
showing that a constitutional violation was caused by a widespread practice amounting to a custom
of the Sheriffs Office. In sum, Plaintiff has failed to allege a § 1983 claim against Harrison in his
official capacity.
13
Nor has Plaintiff alleged a claim against Harrison in his individual capacity. "In order for
an individual to be liable under § 1983, it must be affirmatively shown that the official charged acted
personally in the deprivation of the plaintiffs rights." Wrightv. Collins, 766 F.2d 841, 850 (4th Cir.
1985) (internal quotation omitted). There are insufficient factual allegations in Amended Complaint
II, however, to give rise to the inference that Harrison was personally involved in any of alleged
constitutional violations.
Moreover, although Plaintiff implies that Harrison is liable for actions of the guards by virtue
of his status as their supervisor, the doctrine of respondeat superior is inapplicable to § 1983 claims.
Supervisory officials may be held liable in certain circumstances for the constitutional injuries
inflicted by their subordinates, but this liability is not premised on respondeat superior, but rather
upon "a recognition that supervisory indifference or tacit authorization of subordinates misconduct
may be a causative factor in the constitutional injuries they inflict on those committed to their care."
Shaw v. Stroud 13 F .3d 791, 798 (4th Cir. 1994) (internal quotation omitted). In order to establish
supervisory liability under§ 1983, a plaintiff must allege facts showing:
( 1) that the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a pervasive and unreasonable risk of constitutional
injury to citizens like the plaintiff; (2) that the supervisor's response to that
knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) that there was an affirmative
causal link between the supervisor's inaction and the particular constitutional injury
suffered by the plaintiff.
Randall v. Prince George's County, Md., 302 F.3d 188,206 (4th Cir. 2002) (quotations omitted).
Under the first prong, the subordinates' conduct must be "pervasive," "meaning that the conduct is
widespread, or at least has been used on several different occasions." !d. Hence, a plaintiff will not
satisfy the deliberate indifference standard "by pointing to a single incident or isolated incidents[.]"
14
Id Rather, at a minimum, the plaintiff must demonstrate that the supervisor exhibited "continued
inaction in the face of documented widespread abuses." Id Plaintiff has failed to allege any facts
that gives rise to the inference that Harrison had knowledge of a "pervasive" risk of harm to her.
Accordingly, Plaintiff has failed to state a viable claim against Harrison on the basis of supervisory
liability.
Because Plaintiffhas failed to state a claim against Harrison in either his official or individual
capacity, her claims against him are DISMISSED.
b.
Plaintiff's claims against unnamed guards
Turning to Plaintiffs claims against the "unnamed guards" in their individual capacity, 5
Plaintiff contends that the actions of the unnamed guards and prison officials violated her rights
under the Eighth Amendment. 6
5
Plaintiff also asserts a § 1983 claim against the "unnamed" prison officers and guards in their
official capacities. As this court already has observed, however, a plaintiff's claim against a government
official in his official capacity is treated as a claim against the government entity of which the official is
an agent-here, the Office of Sheriff. See Graham, 473 U.S. at 165-66. Also, as this court already has
observed, Plaintiff has failed to allege a plausible claim against the Office of Sheriff. Any claims against
at the "unnamed guards" in their official capacities are therefore DISMISSED.
6
The parties have assumed that the Eighth Amendment, as opposed to the Fourteenth
Amendment, is implicated by Plaintiff's claim. Cf Armstrong v. Squadrito, 152 F.3d 564, 570 (7th Cir.
1998) (noting, but not reaching, the question of whether imprisonment for contempt under Indiana law
invokes the Eighth Amendment); see also Ingraham v. Wright, 430 U.S. 651, 664 (1977) (explaining that
the Eighth Amendment's protections are limited to those persons convicted of crimes); Bell v. Wolfish,
441 U.S. 520, 535 n.l6 ( 1979) (noting that the conditions of confinement of a pretrial detainee are to be
evaluated under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth
Amendment of the United States Constitution). The court will do the same. Regardless, however, the
standards applied in Eighth Amendment conditions of confinement cases, which include denial of
medical treatment, are essentially the same as those applied in cases arising under the Fourteenth
Amendment for pretrial detainees. See Hill v. Nicodemus, 979 F.2d 987, 990 (4th Cir. 1992); see also
Butler v. Fletcher, 465 F.3d 340, 345 ("[D]eliberate indifference is the appropriate standard of
culpability for all claims that prison officials failed to provide pretrial detainees with adequate food,
clothing, shelter, medical care and reasonable safety.").
15
The Eighth Amendment's ban on "cruel and unusual punishment" requires prison officials
to provide humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
"Prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care,
and must 'take reasonable measures to guarantee the safety of the inmates."' Jd (quoting Hudson
v. Palmer, 468 U.S. 517,526-27 (1984)). "The Supreme Court has prescribed a two-part inquiry to
determine whether prison officials' conduct violated their duty under the Eighth Amendment to
provide humane conditions of confinement." Williams v. Branker, 462 F. App'x 348, 353 (4th Cir.
2012) (footnote omitted). "The first part of the inquiry asks whether the conditions of confinement
inflict harm that is, objectively, sufficiently serious to deprive a prisoner of minimal civilized
necessities." Id (citing Farmer, 511 U.S. at 834). Minimal civilized necessities include "adequate
food, clothing, shelter, medical care, or physical safety." Id "Only extreme deprivations are adequate
to satisfy the objective component of an Eighth Amendment claim regarding conditions of
confinement." Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997). "The second part ofthe inquiry
asks whether prison officials subjectively acted with 'deliberate indifference to inmate health or
safety,' meaning that they actually knew of and disregarded the inhumane nature of the
confinement."' Williams, 462 F. App'x at 353 (quoting Farmer, 511 U.S. at 837).
In this case, Plaintiff asserts five different allegations of deprivation. First, she alleges that
despite being "calm and totally cooperative at all times," she was held in "solitary confinement under
24 bright lights, deprived of ... ordinary rights of inmates without cause, including access to the
canteen, a water cup, exercise, and recreation." Amend. Compl. II [DE-36] p. 19. To the extent that
Plaintiff suggests that segregation from the regular Wake County jail population is per se cruel and
unusual punishment, her claim is without support in the law. See In re Long Term Admin.
16
Segregation ofInmates Designated as Five Percenters, 174 F.3d 464,471-72 (4th Cir. 1999). Nor
do her allegations concerning lack of recreation during her confinement, which was at most seven
days, give rise to a plausible claim that she was subject to "an extreme deprivation resulting in the
denial of a minimal necessity oflife." Williams, 462 F. App'x at 354; see also Five Percenters, 174
F .3d at 4 71-72. Furthermore, with regard to her access to the canteen, there is "no constitutional
right of access to a prison gift or snack shop." Tokar v. Armantrout, 97 F .3d 1078, 1083 (8th Cir.
1996). Although Plaintiff alleges that she was denied access to a "water cup," she does not allege
that she was denied water. Finally, although requiring inmates to live in constant illumination can,
under certain circumstances, rise to the level of an Eighth Amendment violation, see Keenan v. Hall,
83 F.3d 1083, 1090-91 (9th Cir. 1996), Plaintiff here has not alleged that the (at most) seven days
she spent under 24-hour lights caused her any injury. See Whitford v. Boglino, 202 F.3d 276, 1999
WL 828598, at *3 (7th Cir. Oct. 15 1999) (unpublished) (finding that plaintiff failed to state an
Eighth Amendment claim where he was housed in a lighted cell for three weeks and failed to allege
that he lost sleep or was otherwise harmed). In sum, Plaintiff has failed to allege sufficient facts
which would give rise to the inference that she suffered a serious deprivation of minimal civilized
necessity.
Plaintiffs second allegations concerns the attempts to persuade her to take Klonopin. See
Amended Compl. II [DE-36] p. 19. Like her previous allegations concerning her solitary
confinement, Plaintiffs has failed to allege facts which satisfy the objective component of an Eighth
Amendment claim. There is no suggestion that she was harmed by anyone who attempted to
persuade her to take Klonopin; the inference is that Plaintiff did not take the medication.
17
Plaintiffs third allegation is that "on her first physical exam on day 1, it was clear she needed
immediate professional medical care when her blood pressure was dangerously high." Amended
Compl. II [DE-36] p. 20. It is undisputed that deliberate indifference to a prisoner's serious medical
needs violates the prisoner's Eighth Amendment rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
To state a claim for such, the serious medical "need must be both apparent and serious, and the
denial of attention must be both deliberate and without legitimate penological objective." Grayson
v. Peed, 195 F.3d 692, 695 (4th Cir. 1999). A '"serious ... medical need' is 'one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention.'" Iko v. Shreve, 535 F.3d 225,241 (4th
Cir. 2008) (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)). "Deliberate
indifference is a very high standard-a showing of mere negligence will not meet it." Grayson, 195
F.3d at 695. When the plaintiff complains that defendant physicians were deliberately indifferent
despite rendering treatment, "the treatment must be so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d
848,851 (4th Cir. 1990).
The implication from Plaintiffs allegations regarding her blood pressure is that
Plaintiff-while ostensibly receiving medical care during the physical exam itself-did not receive
further medical care addressing her blood pressure. Assuming, without deciding, that a blood
pressure reading of 176/98 constitutes a "serious medical need," the court nevertheless concludes
that Plaintiff has failed to state a claim. She does not name as a defendant any of the medical
personnel who allegedly did not pursue further treatment, nor does she identifY any other defendant
who denied her treatment recommended by medical personnel. See Miltier v. Beorn, 896 F.2d 848,
18
854 (4th Cir. 1990) ("It is insufficient to show deliberate indifference to a serious medical need on
the part of the subordinate physicians.").
Turning to Plaintiff's fourth allegation, she asserts that a lieutenant refused to provide her
bread with which to take Alleve, which Plaintiff alleges was "burning a hole" in her stomach. The
court finds that Plaintiffhas failed to allege a medical need which implicates the Eighth Amendment.
See Webb v. McKnight, No. 7:06-cv-00734, 2006 WL 3761382, at *2 (W.D.Va. Dec. 20, 2006)
(finding that plaintiff's complaints of indigestion, constipation, headaches, vomiting and emotional
distress did not constitute a serious medical need); Ross v. McGinnis, No. 94-A-6742, 2004 WL
1125177, at *10 (W.D.N.Y. Mar. 29, 2004) (concludingthatinmate'scomplaintsofabdominalpain,
vomiting heartburn, constipation, body odor, and extreme body heat did not constitute serious
medical need).
The court does find, however, that Plaintiff has stated an Eighth Amendment claim with
regard to her final allegations. Specifically, Plaintiff alleges that on her third day of incarceration,
she collapsed on the floor. 7 After a few hours, three guards entered her cell, and when she told them
she needed help, they responded by asking "Are you dead yet?" and telling her, "Let us know if you
die." Amend. Compl. II [DE-36] p. 20. The court finds that these allegations give rise to a plausible
claim that the three guards were deliberately indifferent to Plaintiff's serious medical needs. See Iko,
535 F.3d at 241 (observing that "even a lay person would infer" from a prisoner's collapse that he
was in need of medical attention).
7
Although Plaintiff does not allege in the Amended Complaint II what caused her to collapse,
she opines in her opposition to the motion to dismiss that she possibly suffered a stroke. See Mem. in
Support of Pl.'s Resp. [DE-114] pp. 1, 7, 8.
19
In sum, Defendants' motion to dismiss is DENIED as to Plaintiff's claims against the three
guards, 8 in their individual capacity, who responded to her collapse. It is ALLOWED in all other
respects to Plaintiff's claims against the "unnamed guards."
IV. MOTION FOR RELIEF
OnNovember7, 2013, Plaintiff filed aMotion for Relief[DE-115] pursuant to Rule 60(b)(1)
and (6) seeking relief from this court's January 8, 2013, Order [DE-94] dismissing her claims against
the state judicial defendants.
She sought, and received, two extensions of time to file a
memorandum in support of the motion, and filed a partial memorandum [DE-120] in support of the
motion on November 22,2013. On January 3, 2014, she filed the remainder ofthe memorandum
[DE-122], and three days later filed an "Amended Motion to Extend Time to File Supplement
Memorandum" [DE-123].
Plaintiff's Amended Motion to Extend Time to file Supplement Memorandum [DE-123] is
ALLOWED. The court has reviewed the Motion for Relief [DE-115], which essentially asks the
court to reconsider its rulings in the January 8, 2013, Order, in light of Plaintiff's further
interpretation ofthe Amended Complaint II and her additional arguments. The court has thoroughly
reviewed Plaintiff's Motion for Relief and supporting materials, and finds it to be without merit. It
is therefore DENIED.
8
These guards are "unnamed." Plaintiff must identify these unnamed guards by the close of
discovery. Failure to identify the unknown parties by the close of discovery will result in their dismissal
from this action without prejudice. See Schiff v. Kennedy, 691 F .2d 196, 198 (4th Cir. 1982) (dismissing
unnamed defendant without prejudice where it does not appear that his identity could be discovered
through discovery or through intervention of the court).
20
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