Ross v. Conner et al

Filing 12

ORDER: 1) Plas 1 Complaint survives initial review as to Dfts Conner, Mason, and Piercy. Remaining Dfts are dismissed. 2. The 3 and 9 MOTION to Appoint Counsel are DENIED. 3) The 4 and 10 MOTION for Order to Show Cause/MOTION for Preliminary Injunction and MOTION for Temporary Restraining Order, are DENIED. 4) Clerk shall send Pla summons forms to fill out so that service may be made on Dfts Conner, Mason, and Piercy. Once the Court receives the summons, the USM shall effectuate service. Signed by Chief Judge Frank D. Whitney on 10/15/2014. (Pro se litigant served by US Mail.) (klb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14-cv-98-FDW
TERRENCE JAVARR ROSS,

)
)
Plaintiff,
)
)
vs.
)
)
RANDY CONNER, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983, (Doc. No. 1); on Plaintiff’s two separate Motions to Appoint Counsel,
(Doc. Nos. 3; 9); on Plaintiff’s Motion for Order to Show Cause, Motion for Preliminary
Injunction, and Motion for Temporary Restraining Order, (Doc. No. 4); and on Plaintiff’s
Motion to Show Cause for a Preliminary Injunction, and Motion for Temporary Restraining
Order, (Doc. No. 10).
I.

BACKGROUND

Pro se Plaintiff Terrence Javarr Ross, a North Carolina state court inmate currently
incarcerated at Mountain View Correctional Institution in Spruce Pine, North Carolina, filed this
action on April 21, 2014, pursuant to 42 U.S.C. § 1983. On June 19, 2009, Plaintiff was
convicted of, among other things, being a habitual felon in Cleveland County Superior Court.
Here, Plaintiff brings various claims against Defendants, including excessive force in violation of
his constitutional right not to be subjected to cruel and unusual punishment under the Eighth
Amendment to the U.S. Constitution, failure to protect in violation of the Eighth Amendment,
1

and unreasonable search and seizure in violation of the Fourth Amendment, arising out of an
alleged incident on May 14, 2013, when Defendant Conner allegedly used excessive force
against Plaintiff and tried to extract DNA from Plaintiff through the use of force and without a
search warrant that allowed use of force. In his Complaint, Plaintiff names the following persons
as Defendants: (1) Randy Conner, identified as a detective with the Shelby Police Department;
(2) Derwin Briscoe, identified as a captain in the Cleveland County Sheriff’s Department; (3)
Officer Mason, identified as a detention officer with the Cleveland County Sheriff’s Department;
(4) Officer Piercy, identified as a detention officer with the Cleveland County Sheriff’s
Department; (5) Duane D. Terrell, identified as an administrator with Marion Correctional
Institution; and (6) Captain McLaughlin, identified as a captain with Marion Correctional
Institution.
Specifically, Plaintiff alleges in the Complaint that on May 6, 2013, Defendant Randy
Conner came to Marion Correctional Institution where Plaintiff was incarcerated. (Doc. No. 1 at
4). Plaintiff was told someone wanted him in medical. Plaintiff went to medical, where he was
told to go into one of the exam rooms. Plaintiff walked into an exam room, where Defendant
Conner told him that he had come to get a DNA sample from Plaintiff to test a gun found in
2008. (Id. at 4). Plaintiff informed Defendant Conner that he already gave a DNA sample.
Defendant Conner told Plaintiff that he “can give it to me now or I’ll get you back to Shelby and
beat it out of you.” (Id. at 5). Plaintiff refused again. Defendant Conner then attempted to have
the corrections staff assist him in taking a DNA sample by force. The corrections staff refused
and Defendant Conner then left the prison. When Plaintiff returned to his cell he notified
Defendant McLaughlin, the officer in charge, about what had taken place and asked about what
process would need to be taken to press charges against Defendant Conner for the threats he
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made against Plaintiff.
Plaintiff alleges that on May 14, 2013, he was brought to Cleveland County on a writ of
habeas corpus ad prosequendum. (Id. at 6). When Plaintiff arrived at the county jail, he
contacted his court-appointed lawyer Thomas Wilson, who informed Plaintiff that he had not
been made aware that Plaintiff was being brought back on a writ. (Id.). Plaintiff alleges that, on
that same day, Defendant Mason came to Plaintiff’s cell, shackled him, and told him someone
was there to see him. Defendant Mason walked Plaintiff up front and sat him on a bench in front
of the control room. Defendant Conner exited the control room and then put Plaintiff in
handcuffs. (Id. at 6). Defendant Conner then gave Plaintiff what Conner said was a court order
for Plaintiff’s DNA. Plaintiff refused to give his DNA. Defendant Conner grabbed Plaintiff by
the arm and tried to make him go with him by force. (Id. at 7). Defendant Conner instructed
Defendants Mason and Piercy to grab Plaintiff. Plaintiff was still seated on the bench, fully
handcuffed and shackled. (Id.). Defendant Mason held Plaintiff down on his left side, and
Defendant Piercy held Plaintiff down on the right side. Defendant Conner grabbed Plaintiff by
his nose, cutting off his oxygen supply. Defendant Conner then beat Plaintiff’s head into a
cement wall numerous times and he then struck Plaintiff in the face numerous times with a
closed fist. (Id. at 8).
Plaintiff alleges that, throughout the entire incident, Plaintiff informed Defendants Mason
and Piercy that what they were doing was contrary to the law. Defendant Conner got back on the
elevator and left. Defendant Mason instructed Defendant Piercy to call someone. Several
minutes later, Defendant Piercy returned, informing Defendant Mason that he had spoken with
Defendant Captain Briscoe. Defendant Briscoe had stated that what Plaintiff had told them was
the truth—i.e., that Conner was not allowed to use force against Plaintiff to obtain DNA. (Id. at
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9). Defendant Conner then returned and stated, “You ready for some more?” Defendant Mason
informed Defendant Conner that he would not be allowed to touch Plaintiff again. (Id.). At that
point, Defendant Conner screamed, “It does not matter if I have to lose my job. You’re going to
spend the rest of your life in prison.” (Id.).
Plaintiff alleges that on May 14, 2013, while serving lunch in cell block B-2,
Defendant Mason looked at his cell phone and stated, “I had to turn my phone off he was
calling so much. This ain’t the first time this has happened. Last time I had to fight him.
He’s probably going to be at my house waiting on ‘me.’” (Id.). Plaintiff alleges that on
May 15, 2013, Defendant Briscoe told Plaintiff that what took place the day before was
contrary to the law. (Id. at 9-10). While back in Cleveland County on a writ, Plaintiff
requested to be able to press charges against the Defendants who were involved in the
assault. Lieutenant Stearns told Plaintiff that, per direct orders from Defendant Briscoe,
Plaintiff would not be able to press charges. (Id. at 10).
Based on the above factual allegations, Plaintiff purports to bring various legal
claims against Defendants. As to Defendant McLaughlin, Plaintiff alleges that
McLaughlin failed to protect Plaintiff from a substantial risk of harm from Conner, in
violation of Plaintiff’s Eighth Amendment rights. (Id. at 13). As to Defendant Briscoe,
Plaintiff alleges that, as captain and head administrator over the Cleveland County
Detention Center, Defendant Briscoe administered policy and was complacent with the
work environment directly under his control; thus, allowing the beating of Plaintiff by
Conner, in violation of Plaintiff’s Eighth Amendment rights. (Id. at 14). As to
Defendants Mason and Piercy, Plaintiff alleges that they used excessive force against
Plaintiff when they restrained him on Conner’s orders, and that they are both liable for
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failing to intervene when Defendant Conner began beating Plaintiff, in violation of
Plaintiff’s Eighth Amendment rights. (Id. at 15). As to Defendant Conner, Plaintiff
alleges that Defendant Conner’s use of force in an attempt to extract a DNA sample was
an unreasonable search and seizure in violation of Plaintiff’s Fourth Amendment rights.
(Id. at 16). Plaintiff also alleges that Defendant Conner used excessive force, as Plaintiff
“was fully restrained in handcuffs and shackles at the time he was beaten by Defendant
Randy Conner.” (Id.). Finally, as to Defendant Terrell, Plaintiff alleges that Defendant
Terrell is liable for failing to investigate the incident and for failing to protect Plaintiff
from a substantial risk of harm, in violation of Plaintiff’s Eighth Amendment rights. (Id.
at 17-18). Plaintiff states that even after he filed his grievance based on the alleged
beating, he was sent back to the Cleveland County Detention Center twice on an
application and writ of habeas corpus ad prosequendum, where he was again exposed to
the same risk of harm. (Id. at 18). Plaintiff seeks declaratory relief as well as
compensatory and punitive damages. (Id. at 19).
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint
to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review and identify and dismiss the complaint,
or any portion of the complaint, if it is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or seeks monetary relief from a defendant who is immune to such relief.
In its frivolity review, this Court must determine whether the Complaint raises an
indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such
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as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, the liberal construction requirement will not permit a district court to
ignore a clear failure to allege facts in his Complaint which set forth a claim that is cognizable
under federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION

A. Initial Review of Plaintiff’s Claims
1. Plaintiff’s Eighth Amendment Claims against all Defendants
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” U.S.
CONST. amend. VIII, and protects prisoners from the “unnecessary and wanton infliction of
pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986). To establish an Eighth Amendment claim,
an inmate must satisfy both an objective component–that the harm inflicted was sufficiently
serious–and a subjective component–that the prison official acted with a sufficiently culpable
state of mind. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
Plaintiff brings various Eighth Amendment claims against Defendants based on excessive
force, failure to protect, and failure to intervene. First, as to the excessive force claims against
the various Defendants, the Court must consider such factors as the need for the use of force, the
relationship between that need and the amount of force used, the extent of the injury inflicted,
and, ultimately, whether the force was “applied in a good faith effort to maintain or restore
discipline, or maliciously and sadistically for the very purpose of causing harm.” Albers, 475
U.S. at 320-21. Furthermore, the Supreme Court has recently reiterated that “[a]n inmate who is
gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury.” Wilkins v. Gaddy, 559 U.S.
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34, 38 (2010). In Wilkins v. Gaddy, the Supreme Court observed:
This is not to say that the “absence of serious injury” is irrelevant to the Eighth
Amendment inquiry. “[T]he extent of injury suffered by an inmate is one factor
that may suggest ‘whether the use of force could plausibly have been thought
necessary’ in a particular situation.” The extent of injury may also provide some
indication of the amount of force applied. As we stated in Hudson, not “every
malevolent touch by a prison guard gives rise to a federal cause of action.” “The
Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily
excludes from constitutional recognition de minimis uses 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.
Injury and force, however, are only imperfectly correlated, and it is the latter that
ultimately counts.
Id. at 37-38 (citations omitted).
As for Plaintiff’s claims based on failure to protect and failure to intervene against the
various Defendants, the Supreme Court has held that prison officials’ negligent failure to protect
an inmate from assaults by other prisoners does not rise to the level of an unconstitutional
violation. Davidson v. Cannon, 474 U.S. 344, 348 (1986). To show deliberate indifference, a
plaintiff must allege that the prison official had actual knowledge of an excessive risk to the
plaintiff’s safety. Danser v. Stansberry, No. 13-1828, 2014 WL 2978541, at *5 (4th Cir. Sept.
12, 2014). In other words, the prison official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The Court first finds that Plaintiff’s claims do not survive initial review as to Defendants
Terrell, Briscoe, or McLaughlin. First, as to Defendant Terrell, who was the administrator at
Marion Correctional Institution at all relevant times, Plaintiff does not allege any personal
involvement by Defendant Terrell, and he cannot be held liable for the alleged acts of the other
officers because liability under § 1983 cannot be based on respondeat superior. See Monell v.
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Department of Soc. Servs., 436 U.S. 658, 694 (1978) (stating that under § 1983, liability is
personal in nature, and the doctrine of respondeat superior does not apply). Although Plaintiff
alleges that Defendant Terrell failed to investigate the matter, there was, in fact, an investigation
into the matter as a result of the filing of Plaintiff’s grievance. Furthermore, although Plaintiff
suggests that Defendant Terrell should be held liable for failure to protect because after the
alleged beating incident Plaintiff was returned to the Cleveland County Detention Center,
Plaintiff does not allege that he was harmed in any way as a result of this. In sum, Defendant
Terrell will be dismissed as a defendant on initial review.
Next, as to Defendant McLaughlin, who was at all relevant times the incident supervisor
and officer in charge at Marion, Plaintiff alleges that he complained to McLaughlin after Conner
came to Marion Correctional Institution on May 6, 2013, seeking a DNA sample from Plaintiff.
Plaintiff alleges that he asked McLaughlin what he needed to do to press charges against
Defendant Conner for communicating threats. Plaintiff alleges that McLaughlin is liable for
failing to take measures to protect Plaintiff after Plaintiff complained about Conner’s threats.
Here, Plaintiff has simply not alleged that Defendant McLaughlin has knowledge of an excessive
risk to Plaintiff’s safety and that he was deliberately indifferent to that risk. At most, Plaintiff
alleges that Defendant’s lack of action following Plaintiff’s complaint about Conner constituted
negligence, and this is not enough to constitute an Eighth Amendment violation for failure to
protect. Thus, McLaughlin will be dismissed as a defendant.
Next, as to Defendant Briscoe, who was the head administrator of the Cleveland County
detention centers at all relevant times, the only personal participation alleged as to Briscoe is
that, after Conner allegedly beat Plaintiff, Briscoe informed officers Mason and Piercy that
Plaintiff was right in stating that what Conner was doing was unlawful. Here, Plaintiff simply
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does not allege facts giving rise to a claim against Briscoe for failure to protect Plaintiff from a
substantial risk of harm. Thus, Briscoe will be dismissed as a defendant.
Finally, as to Defendants Mason and Piercy, taking Plaintiff’s allegations as true for the
purposes of initial review, the Court finds that Plaintiff states an Eighth Amendment claim
against Mason and Piercy based on excessive force and failure to intervene. Plaintiff has also
sufficiently stated a claim against Defendant Conner for excessive force in violation of the
Eighth Amendment.
2. Plaintiff’s Fourth Amendment Claim against Defendant Conner
In addition to bringing an excessive force claim against Defendant Conner, Plaintiff also
alleges that Defendant Conner violated Plaintiff’s Fourth Amendment rights based on an
unreasonable search and seizure. As noted, Plaintiff alleges that Conner restrained him and used
excessive force against Plaintiff in an attempt to extract DNA from Plaintiff. Plaintiff alleges
that Conner showed him a warrant that Conner said authorized him to take Plaintiff’s DNA, but
Plaintiff alleges that the warrant did not allow the use of force in extracting DNA. Plaintiff
alleges that after he refused to give Conner his DNA, Conner then restrained and beat Plaintiff in
an attempt to extract DNA from Plaintiff. Here, taking Plaintiff’s allegations as true, and
drawing all inferences in his favor, the Court finds that Plaintiff has stated a Fourth Amendment
claim for unreasonable search and seizure against Defendant Conner.1 See United States v.

1

The Court recognizes the holding by the Fourth Circuit Court of Appeals in Rendelman v.
Scott, 378 Fed. Appx. 309, 313, 2010 WL 2000976, at *3 (4th Cir. 2010), that the “the State’s
right to obtain the DNA sample from designated inmates must necessarily carry with it the right
to use a reasonable degree of force that is sufficient to ensure compliance.” See also United
States v. Bullock, 71 F.3d 171, 175-77 (5th Cir. 1995) (holding that use of force to obtain blood
and hair samples from a criminal suspect for DNA purposes did not violate the Fourth
Amendment and noting that the suspect had no right to refuse to comply with the search
warrant). Here, if Defendant Conner had a valid search warrant allowing him to extract
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Kincade, 379 F.3d 813, 821 n.15 (9th Cir. 2004) (observing that a compelled DNA extraction is
a “search” for Fourth Amendment purposes).
B. Plaintiff’s Motion to Appoint Counsel
Next, as for Plaintiff’s two motions to appoint counsel, Plaintiff alleges that the prison
where he is incarcerated has no law library, that he has limited knowledge of the law, that the
issues are complex, and that he has been unable to obtain an attorney on his own to represent
him. See (Doc. Nos. 3; 9). There is no absolute right to the appointment of counsel in civil
actions such as this one. Therefore, a plaintiff must present “exceptional circumstances” in order
to require the Court to seek the assistance of a private attorney for a plaintiff who is unable to
afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Notwithstanding
Plaintiff’s contentions to the contrary, Plaintiff has not shown exceptional circumstances
justifying appointment of counsel at this time. Therefore, Plaintiff’s motions to appoint counsel
will be denied. If this action proceeds to trial, however, the Court will consider appointment of
counsel to represent Plaintiff during the trial proceedings.
C. Plaintiff’s Motion to Show Cause for a Preliminary Injunction, and Motion for
Temporary Restraining Order
Finally, as to Plaintiffs’ two motions for a preliminary injunction (and a motion for
temporary restraining order), a preliminary injunction is an extraordinary remedy afforded before
trial at the discretion of the district court. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517,

Plaintiff’s DNA then Defendant Conner would have had the right to use reasonable force in
order to ensure compliance with the search warrant. However, here, Plaintiff specifically alleges
that Defendant Conner used excessive force. Furthermore, there is simply not enough
information before the Court to adjudicate the Fourth Amendment claim on Plaintiff’s Complaint
alone because the search warrant was not attached to the pleadings.
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524-26 (4th Cir. 2003). It is an extraordinary remedy never awarded as of right. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In each case, courts “must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542
(1987).

“[C]ourts of equity should pay particular regard for the public consequences in

employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24. To obtain a
preliminary injunction, the plaintiff must establish (1) that he is likely to succeed on the merits;
(2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in his favor; and (4) that an injunction is in the public interest. Real
Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009).
First, Plaintiff seeks an order from the Court prohibiting Defendants “from contacting
and or interacting with [Plaintiff] short of impeding judicial hearings or the judicial process.”
(Id.). Reviewing Plaintiff’s motion based on the above factors, Plaintiff is not entitled to a
preliminary injunction from the Court ordering Defendants to have no contact with him or
interact with him during the course of this action. Here, Plaintiff has been transferred from
Marion Correctional Institution to Mountain View Correctional Institution in Spruce Pine, North
Carolina. Plaintiff is incarcerated, which means that he is not likely to have contact with
Defendants, most of whom are in Shelby, North Carolina. The Court has considered the four
relevant factors in determining whether to issue a preliminary injunction, and the Court finds that
these factors do not warrant a preliminary injunction. Most significantly, Plaintiff has not shown
he is likely to suffer irreparable harm in the absence of preliminary relief. Thus, the Court will
deny Plaintiff’s motion for an order prohibiting Defendants from contacting Plaintiff during this
action.
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In support of his motions for a preliminary injunction, Plaintiff also states that he seeks an order
from the Court ordering Defendants not to destroy any surveillance video evidence of the
incident on May 14, 2013. (Doc. No. 4 at 2). In the motion, Plaintiff states that Marion
Correctional Institution has a policy of destroying surveillance video evidence within one year of
the recording. Plaintiff seeks an order from this Court ordering Defendants not to destroy any
surveillance video. The Court find that an order requiring Defendants not to destroy video
evidence is unnecessary because Defendants already have a duty to preserve evidence. Under
the doctrine of spoliation, parties have a duty to preserve (including a duty to not destroy)
evidence when litigation is filed or becomes reasonably anticipated. See Silvestri v. Gen. Motors
Corp., 271 F.3d 583, 591 (4th Cir. 2001); Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494,
509 (D. Md. 2009). To fulfill the duty to preserve relevant evidence, “[o]nce a party reasonably
anticipates litigation, it is obligated to suspend its routine document retention/destruction policy
and implement a “litigation hold” to ensure the preservation of relevant documents.” Id. at 511.
Here, if Defendants destroy any exculpatory evidence they will be subject to sanctions.
However, because they are already under a duty to preserve evidence, an order from this Court is
not necessary. Accord Wright v. Webber, C/A No. 1:11-2199-TLW-SVH, 2011 WL 6112371, at
*3 (D.S.C. Nov. 10, 2011) (“Plaintiff has not shown that he will suffer irreparable damage if an
injunction does not issue, as Defendants already have a legal duty to preserve existing evidence
when a lawsuit is filed.”); McNair v. Ozmint, C/A No. 3:07-3470-HFF-JRM, 2008 WL 2128121,
at *4 (D.S.C. May 20, 2008) (denying a motion for a temporary restraining order to preserve
cassette tapes because there already existed a duty to preserve material evidence).
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
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1915A, as to Defendants Conner, Mason, and Piercy, but the remaining Defendants will be
dismissed.2 Furthermore, Plaintiff’s motions to appoint counsel and motions for a preliminary
injunction and for a temporary restraining order are denied.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review under § 1915(e) and 28
U.S.C. § 1915A as to Defendants Conner, Mason, and Piercy. The remaining
Defendants are dismissed from this action.
2. Plaintiff’s Motions to Appoint Counsel, (Doc. Nos. 3; 9), are DENIED.
3. Plaintiff’s Motion for Order to Show Cause, Motion for Preliminary Injunction, and
Motion for Temporary Restraining Order, (Doc. No. 4), and Plaintiff’s Motion to
Show Cause for a Preliminary Injunction and Temporary Restraining Order, (Doc. No
10) are DENIED.
4.

The Clerk shall send Plaintiff summons forms to fill out so that service may be made
on Defendants Conner, Mason, and Piercy. Once the Court receives the summons,
the U.S. Marshal shall effectuate service on Defendants at the addresses provided by
Plaintiff.
Signed: October 15, 2014

2

This ruling does not prevent Defendants from moving to dismiss this action based on any
affirmative defenses, abstention principles, etc. Furthermore, although the Court does not have
sufficient information before it to determine the issue at this stage, Plaintiff’s claims may be in
part or in whole barred by the principles in Heck v. Humphrey, 512 U.S. 477 (1994).
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