TURNER v. TURNER et al
Filing
19
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 12/19/2014. RECOMMENDED that Defendant Bunn's Motion to Dismiss for Failure to State a Claim (Docket Entry 11 ) be granted.ORDERED that Attorney Donna Tanner shall file a No tice on or before January 7, 2014, either: (1) setting forth addresses for Defendants Turner, Killough, and Clevenger, at which the Court best could seek to make proper service of process based on reasonable investigation by counsel, which address es may be submitted under seal; (2) stating that she will accept service on behalf of Defendants Turner, Killough, and Clevenger; or (3) stating any other proposal for how the Court reasonably and efficiently could meet its obligation to effect ser vice of process on said Defendants. behalf of Defendants Turner, Killough, and Clevenger; or (3) stating any other proposal for how the Court reasonably and efficiently could meet its obligation to effect service of processon said Defendants.(Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TERRANCE TICO TURNER,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SGT. TURNER, et al.,
Defendants.
1:14CV379
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the undersigned Magistrate Judge for a
recommended ruling on Defendant Bunn’s Motion to Dismiss for
Failure to State a Claim (Docket Entry 11), as well as for review
of
service
of
process
on
Defendants
Turner,
Killough,
and
Clevenger. For the reasons that follow, the Court should grant the
instant Motion and the undersigned Magistrate Judge will direct
Attorney Donna
Tanner
to assist
in
effecting
service
on
the
remaining Defendants.
BACKGROUND
Plaintiff, a North Carolina state prisoner, initiated this
action by filing a pro se form Complaint under 42 U.S.C. § 1983
(Docket Entry 2), alleging deprivation of his rights in connection
with injuries sustained when an inmate in the adjacent cell started
a fire (id. at 3).
Killough,
Officer
The Complaint names Sgt. Turner, Corporal
Bunn,
and
Officer
Clevenger
as
Defendants.
(Id. at 2.)1
It states that Defendants failed to promptly remove
Plaintiff from his cell, and that his resulting exposure to smoke
led to his hospitalization and ongoing health issues.
(Id. at 3.)
In that regard, Plaintiff’s Complaint asserts that Defendants’
alleged inaction amounted to an infliction of cruel and unusual
punishment under the Eighth Amendment.
(See id.)
In support of
the foregoing, the Complaint offers the following factual material:
1) “[o]n January 14, 2012[,] at approximately 7 p.m.[,] while
[Plaintiff] rest[ed] inside [his] cell on the segregation unit of
Orange Correctional Center, [Plaintiff] was suddenly aw[o]ken from
coughing and chok[]ing from thick black smoke filling the air [and]
also an inmate next door to [Plaintiff] yelling and kicking on his
door” (id.);
2) “[t]his particular inmate had allegedly set a fire in his
cell which resulted in [Plaintiff’s] cell and basically the entire
block being consumed in black smoke” (id.);
3)
“being
unable
to
breathe
and
barely
able
to
see[,]
[Plaintiff] immediately got off [his] bunk[,] went to [his] cell
door[,] and got the officer[’]s attention that was next door
dealing with the inmate who set the fire” (id.);
4) “[Plaintiff] requested [that] [Defendants Killough, Bunn,
and Clevenger] please remove [Plaintiff] from [his] cell due to
1
Plaintiff’s Complaint names “Officer Bun” as a Defendant
(Docket Entry 2 at 2); however, the instant Motion identifies
“Bunn” as the correct spelling (Docket Entry 11 at 1 n.1).
-2-
smoke inh[a]lation[,] plus [Plaintiff] was f[ee]ling very dizzy
headed” (id.);
5) “[Defendant] Killough then told [Plaintiff] to go sit down
[and] that [Plaintiff] would be all right” (id.);
6) “[Defendants Killough, Bunn, and Clevenger] then walked
away
from
[Plaintiff’s]
[Plaintiff’s]
request
to
cell
move
door
[him]
[and]
to
totally
safety so
ignored
[he]
could
breathe” (id.);
7) “[s]hortly thereafter [Defendant] Turner entered the block
[to]
assist[]
the
other
officers
with
the
situation
after
[Defendants] Bun[n] and [] Clevenger radioed in and announced a
code blue on the segregation unit” (id.);
8) “[Plaintiff] then got [Defendant] Turner’s attention and he
came to [Plaintiff’s] cell door and [Plaintiff] requested to him to
please
help
[Plaintiff]
and
remove
[him]
from
[his]
cell
. . . because [he] felt [him]self about to black out” (id.);
9)
“[Plaintiff]
also
decla[]red
to
[Defendant
Turner]
a
medical emergency and then he told [Plaintiff] to shut up and go
sit
or
lay
down
on
[the]
bunk
because
he
wasn’t
remov[]ing
[Plaintiff] from his cell . . . [and] he then walked away” (id.);
10) “[the] [l]ast thing [Plaintiff] could remember was trying
to
walk
back
to
[his]
bunk
[and]
[Plaintiff]
then
lost
consciousness falling hitting [his] back on the steel toilet and
sink plus banging [his] head on the cement floor” (id.);
-3-
11) “[w]hen [Plaintiff] regained consciousness [he] was at
U.N.C. Health Care Unit with IVs in [his] arms and the doctor
t[old] [him] [he] had [been] rushed from Orange Correctional Center
to his Health Care Unit from being passed out on the floor of [his]
cell for smoke inh[a]lation” (id.);
12) “[Plaintiff] also had to take cat scans for the knot that
was on [his] forehead” (id.);
13) Plaintiff continues to “suffer with head aches daily, back
pains constantly and depression so [he] consulted with a doctor and
there are problems with [his] head and back so [the] doctor put
[Plaintiff] on medication for [his] head and back pains and also
[his] depression” (id.);
14) “[Plaintiff’s] doctor also stated [that] [Plaintiff] would
be on medication for these problems for the rest of [his] life”
(id.).
Based on the foregoing allegations, Plaintiff seeks $40,000 in
compensatory damages against each Defendant, $15,000 in punitive
damages against each Defendant, as well as recovery of his costs
incurred in bringing this action.
(Id. at 4.)
The undersigned
Magistrate Judge granted Plaintiff’s Application to Proceed In
Forma Pauperis (Docket Entry 3 at 1) and, further, ordered the
United States Marshals Service to serve Plaintiff’s Complaint and
the completed summonses on Defendants (id. at 3).
The Marshals
successfully executed service on Defendant Bunn (Docket Entry 7);
-4-
however, the Orange Correctional Center returned as unexecuted the
summonses issued to Defendants Turner, Killough, and Clevenger
(Docket Entry 6 at 1-3).
In that regard, the Orange Correctional
Center reported to the Marshals that Defendants Turner, Killough,
and Clevenger no longer work at that facility and that Defendant
Killough has retired.
(Id.)
Defendant Bunn now moves to dismiss, asserting: (1) Plaintiff
has failed to state a claim for a violation of his Eighth Amendment
rights; (2) qualified immunity bars Plaintiff’s claim against
Defendant Bunn in his individual capacity; and (3) Plaintiff has
not adequately pled allegations to support relief in the form of
punitive damages.
(Docket Entry 11 at 1-2.)
Plaintiff responded,
describing the facts of his case in greater detail and addressing
Defendant Bunn’s arguments concerning the Eighth Amendment and
punitive damages.
reply.
(Docket Entry 18.)2
Defendant Bunn did not
(See Docket Entries dated Nov. 12, 2014, to present.)
DISCUSSION
Defendant Bunn first contends that “Plaintiff has failed to
state a claim pursuant to Fed[eral] R[ule] [of] Civ[il] P[rocedure]
12(b)(6) for a violation of his Eighth Amendment Rights due to any
2
Plaintiff’s Response additionally identifies “Mr. G.
Soloman” and “Mr. A Hughes” as Defendants (see Docket Entry 18 at
1-2); however, Plaintiff did not include these Defendants in his
Complaint (see Docket Entry 2 at 1-3). Should Plaintiff wish to
name additional Defendants in this action, he must follow the
procedure outlined in Federal Rule of Civil Procedure 15(a).
-5-
action or inaction by Defendant Bunn.”
(Docket Entry 11 at 1.)
Under said Rule, a complaint falls short if it 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)).
This standard “demands more than an unadorned, the-defendantunlawfully-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.
“[D]etermining whether a complaint states on its face a
plausible
claim for
relief
and
therefore
can
survive
a
Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.”
F.3d 186, 193 (4th Cir. 2009).
Francis v. Giacomelli, 588
Moreover, although the Supreme
Court has reiterated the importance of affording pro se litigants
the benefit of liberal construction, Erickson v. Pardus, 551 U.S.
89, 94 (2007), 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 in dismissing
-6-
pro se complaint); accord Atherton v. District of Columbia Office
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
679,
respectively)).
“It is undisputed that the treatment a prisoner receives in
prison and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.”
U.S. 25, 31 (1993).
Helling v. McKinney, 509
“To make a valid claim under the Eighth
Amendment, a prisoner must satisfy two elements.
First, ‘the
deprivation alleged must be sufficiently serious.’” Brown v. North
Carolina Dep’t of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting
Odom v. South Carolina Dep’t of Corr., 349 F.3d 765, 770 (4th Cir.
2003)).
“Second, a prisoner must demonstrate that the prison
official had
a
‘sufficiently
culpable
state of mind.’”
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
regard, “the
requisite
“state
of
mind is
indifference’ to inmate health or safety.”
(quoting Wilson, 501 U.S. at 297).
one
of
Id.
In that
‘deliberate
Odom, 349 F.3d at 770
“In other words, ‘the test is
whether the guards know the plaintiff inmate faces a serious danger
to his safety and they could avert the danger easily yet they fail
-7-
to do so.’”
Brown, 612 F.3d at 723 (quoting Case v. Ahitow, 301
F.3d 605, 607 (7th Cir. 2002)).
Even assuming that Plaintiff has satisfied the first prong by
alleging serious and ongoing injuries from his exposure to smoke,
Plaintiff’s claim against Defendant Bunn fails under the second
prong because Plaintiff has not pleaded any facts to support an
inference that Defendant Bunn had a “sufficiently culpable state of
mind,” id.
The Complaint’s only references to Defendant Bunn
consist of the allegations: (1) that Plaintiff got the attention of
Defendant Bunn (along with Defendants Clevenger and Killough); (2)
that Defendant Bunn (along with Defendant Clevenger) subsequently
walked away; and (3) that Defendant Bunn (along with Defendant
Clevenger)
“radioed
segregation unit.”
in
and
an[n]ounced
a
code
(See Docket Entry 2 at 3.)
blue
on
the
In that regard,
Plaintiff’s Complaint contains no factual allegations that remotely
bear on Defendant Bunn’s state of mind, let alone support an
inference of deliberate indifference to Plaintiff’s safety.
Furthermore,
although
Plaintiff
alleges
that
Defendants
Killough and Turner responded to his call for help and spoke
directly to him, Plaintiff does not offer any factual material to
support
the
contention
that
Defendant
Bunn
Plaintiff’s request for removal from his cell.
actually
heard
(See id.; see also
Docket Entry 18 at 2-3 (Plaintiff’s statement of facts in response
to the instant Motion).)
In that regard, Defendant Bunn’s alleged
-8-
involvement in the incident appears to have been so minimal as to
preclude a § 1983 claim under the Eighth Amendment.
“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 plaintiff’s rights.”
Wright v. Collins, 766 F.2d 841, 850
(4th Cir. 1985) (internal quotation marks omitted).
Plaintiff’s
allegations, even liberally construed, simply do not support the
position that Defendant Bunn “kn[e]w [] [P]laintiff face[d] a
serious danger to his safety and [Defendant Bunn] could [have]
avert[ed] the danger easily yet [he] fail[ed] to do so,” Brown, 612
F.3d at 723 (internal quotation marked omitted).
Under these
circumstances, Plaintiff’s Complaint fails to state a claim under
the Eight Amendment.
Next, Defendant Bunn asserts that “Plaintiff’s claims against
[]
Defendant
[Bunn]
in
his
individual
capacit[y]
should
be
dismissed pursuant to the doctrine of qualified immunity.” (Docket
Entry 11 at 1.)3
“Qualified immunity from § 1983 claims ‘protects
government officials from liability for civil damages insofar as
3
Plaintiff contends that “[e]ach Defendant is sued
indiv[i]dually and in his official capacity.” (Docket Entry 18 at
2.) However, state sovereign immunity bars a claim for damages
against state officers in their official capacities, see Kentucky
v. Graham, 473 U.S. 159, 169 (1985) (“The Court has held that,
absent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal
court. This bar remains in effect when State officials are sued
for damages in their official capacity.” (internal citation
omitted)), and Plaintiff’s Complaint appears to seek only money
damages (see Docket Entry 2 at 4).
-9-
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’”
Doe ex rel. Johnson v. South Carolina Dep’t of Soc.
Servs., 597 F.3d 163, 169 (4th Cir. 2010) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (some internal quotation marks
omitted).
Put simply, qualified immunity “ensures that officials
are not unfairly strung up for money damages as a result of bad
guesses in gray areas [and] [i]t encourages capable citizens to
join the ranks of public servants by removing the threat of
constant litigation.”
Braun v. Maynard, 652 F.3d 557, 560 (4th
Cir. 2011) (internal citation and
quotation marks omitted).
Accordingly, “[q]ualified immunity is ‘an immunity from suit rather
than a mere defense to liability.’”
Pearson, 555 U.S. at 236
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
For that
reason, the United States Supreme Court “‘repeatedly has stressed
the importance of resolving immunity questions at the earliest
possible stage in litigation.’” Id. (quoting Hunter v. Bryant, 502
U.S. 224, 227 (1991)).
“Determining whether qualified immunity applies involves a
two-prong inquiry: ‘whether the facts make out a violation of a
constitutional right’ and ‘whether the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.’” West
v. Murphy, 771 F.3d 209, 213 (4th Cir. 2014) (quoting Pearson, 555
U.S. at 232 (internal ellipsis omitted)).
-10-
“However, it is within
[the Court’s] discretion to decide ‘which of the two prongs of the
qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.’”
Doe ex rel.
Johnson, 597 F.3d at 169 (quoting Pearson, 555 U.S. at 236).
The
Supreme Court has observed that, “[w]hen qualified immunity is
asserted at the pleading stage, the precise factual basis for the
plaintiff’s claim or claims may be hard to identify.” Pearson, 555
U.S. at 239-40.
Under such circumstances, a court may properly
proceed to the second prong to avoid “an uncomfortable exercise
where the answer to whether there was a violation may depend on a
kaleidoscope of facts not yet fully developed . . . .”
Id. at 240
(internal quotation marks, brackets, and ellipsis omitted).
Accordingly, in this case, the Court need not first consider
whether a violation of a constitutional right has actually occurred
under the first prong to conclude that no violation of a clearly
established
right
has
occurred
under
the
second
prong.
“A
Government official’s conduct violates clearly established law
when, at the time of the challenged conduct, ‘the contours of a
right are sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)).
The Supreme Court has
“not require[d] a case directly on point, but existing precedent
must have placed the statutory or constitutional question beyond
-11-
debate.”
Id.
Moreover, “[t]he universe of existing precedent is
not unlimited [and] [c]ourts “‘ordinarily need not look beyond the
decisions of the Supreme Court, [the relevant] court of appeals,
and the highest court of the state in which the case arose.’”
West, 771 F.3d at 213 (quoting Lefemine v. Wideman, 672 F.3d 292,
298 (4th Cir. 2012)).
In the instant case, according to Plaintiff, Defendant Bunn
(along with Defendants Turner, Killough, and Clevenger) had to
respond to a fire caused by another prisoner that threatened the
safety of the entire segregation unit.
3.)
(See Docket Entry 18 at 2-
That such a circumstance evidently required prison staff to
act quickly and consider the safety of numerous prisoners and
guards
alike
violation.
weighs
For
against
instance,
finding
in
a
case
a
clearly
involving
established
a
prisoner
deliberately shot by a guard without warning in the course of a
prison riot, the Supreme Court stated that, “in making and carrying
out decisions involving the use of force to restore order in the
face of a prison disturbance, prison officials undoubtedly must
take into account the very real threats the unrest presents to
inmates and prison officials alike, in addition to the possible
harms to inmates against whom force might be used.”
Whitley v.
Albers, 475 U.S. 312, 320 (1986), abrogated on other grounds by
Wilkins v. Gaddy, 559 U.S. 34 (2010).
The Supreme Court then
concluded that no violation of the prisoner’s Eighth Amendment
-12-
rights had occurred and reinstated the district court’s entry of a
directed verdict for the prison officials.
(Id. at 326-28.)
In response to the instant Motion, Plaintiff cites several
cases
in
which
“court[s]
have
acknowledged
violations
of
prisoners[’] Eighth Amendment rights based on ‘air quality.’”
(Docket Entry 18 at 4 (citing Talal v. White, 403 F.3d 423 (6th
Cir. 2005) and Alvarado v. Litscher, 267 F.3d 648 (7th Cir.
2001)).)
However, these claims involved exposure to secondary
tobacco smoke over extended periods of time, brought by prisoners
with special medical needs which were known to and apparently
ignored by prison staff.
267 F.3d at 651.
See Talal, 403 F.3d at 427-28; Alvarado,
In contrast, the instant case presented a short-
term exposure to smoke as a result of a fire started by an inmate,
an emergency to which the prison staff had little time to consider
their response.
F.3d
at
213
imperfections.
(See Docket Entry 2 at 3.)
(“Qualified
immunity
takes
See also West, 771
cognizance
of
human
Implicit in the idea that officials have some
immunity for their acts, is a recognition that they may err and
that it is better to risk some error and possible injury from such
error than not to decide or act at all.” (internal quotation marks
and ellipsis omitted)).
Plaintiff cites another case for the
proposition that “[p]rison official are responsible for protecting
inmates from and against fire hazards.”
(Docket Entry 18 at 4
(citing Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985)).)
-13-
In
that case, the Ninth Circuit affirmed a district court’s conclusion
that
a
prison’s
substandard
fire
prevention
(amongst
other
hazardous conditions) violated the Eighth Amendment, see Hoptowit,
753 F.2d at 783-84, circumstances not alleged here (see Docket
Entry 2 at 3; Docket Entry 18 at 2-3).
not identified
any
Defendant
committed
Bunn
adequate
basis
a
Put simply, Plaintiff has
to
clearly
Plaintiff’s Eighth Amendment rights.
support
a
established
finding
that
violation
of
In sum, qualified immunity
protects Defendant Bunn and the Court should dismiss Plaintiff’s
claims against Defendant Bunn.
Defendant
Bunn
finally
asserts
that
“Plaintiff’s
claims
against [him] for punitive damages should be dismissed for failure
to adequately plead allegations rising to the level of punitive
relief.”
assess
(Docket Entry 11 at 3.)
punitive
damages
in
an
“‘[A] jury may be permitted to
action
under
§
1983
when
the
defendant’s conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the
federally protected rights of others.’”
Smith v. Pepersack, Nos.
98-1842, 98-1843, 194 F.3d 1305 (table), 1999 WL 760218, at *5 (4th
Cir. 1999) (unpublished) (quoting Smith v. Wade, 461 U.S. 30, 56
(1983)). Moreover, “the callous indifference required for punitive
damages is essentially the same as the deliberate indifference
required for a finding of liability on the § 1983 claim.”
v.
Dyke,
814
F.2d
941,
948
(4th
-14-
Cir.
1987).
Cooper
Given
that
equivalence, as discussed above, Plaintiff’s Complaint fails to
allege
facts
to
support
the
contention
that
Defendant
Bunn
demonstrated deliberate indifference, the Complaint also fails to
state a claim for punitive damages.
As a final matter, the Court has an obligation to undertake
further steps to effect service on Defendants Turner, Killough, and
Clevenger before considering dismissal as to those Defendants for
insufficient service of process. See generally Greene v. Holloway,
No. 99-7380, 210 F.3d 361 (table), 2000 WL 296314, at *1 (4th Cir.
Mar. 22, 2000) (unpublished).
For this reason, the undersigned
Magistrate Judge will direct Attorney Donna Tanner of the North
Carolina Department of Justice to assist the Court in meeting that
obligation.
Accordingly, Attorney Tanner shall file a notice with
the
either:
Court,
(1)
providing
the
best
possible
address
(determined after reasonable inquiry) where the Marshals Service
may
make
proper
service
on
Defendants
Turner,
Killough,
and
Clevenger; (2) stating that she can and will accept service on
behalf of Defendants Turner, Killough, and Clevenger; or (3)
setting forth an alternate proposal for how the Court reasonably
and efficiently could meet its obligation to effect service of
process on said Defendants.
The undersigned Magistrate Judge
thanks Attorney Tanner for her assistance in streamlining service
issues related to these Defendants.
-15-
CONCLUSION
Defendant Bunn has established grounds for relief pursuant to
Federal Rule of Civil Procedure 12(b)(6).
IT IS THEREFORE RECOMMENDED that Defendant Bunn’s Motion to
Dismiss for Failure to State a Claim (Docket Entry 11) be granted.
IT IS FURTHER ORDERED that Attorney Donna Tanner shall file a
Notice on or before January 7, 2014, either: (1) setting forth
addresses for Defendants Turner, Killough, and Clevenger, at which
the Court best could seek to make proper service of process based
on reasonable investigation by counsel, which addresses may be
submitted under seal; (2) stating that she will accept service on
behalf of Defendants Turner, Killough, and Clevenger; or (3)
stating any
other
proposal
for
how
the
Court
reasonably
and
efficiently could meet its obligation to effect service of process
on said Defendants.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 19, 2014
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