Michelson v. Duncan et al
Filing
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ORDER DISMISSING CASE WITHOUT PREJUDICE; and granting Pltf's 2 AFFIDAVIT - 1983 Application IFP. Signed by Chief Judge Frank D. Whitney on 2/27/17. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00050-FDW
CHRISTOPHER LEE
MICHELSON,
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Plaintiff,
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v.
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VAN DUNCAN; STEPHEN
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COON, Asheville Police Detective;
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MARK GAGE, ATF Special Agent;
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RON MOORE, Buncombe County
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District Attorney; ROGER
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THEODORE SMITH, Buncombe
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County Attorney at Law,
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Defendants.
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_________________________________)
ORDER
THIS MATTER is before the Court on consideration of Plaintiff’s pro se complaint,
filed pursuant to 42 U.S.C. § 1983. For the reasons that follow, Plaintiff’s complaint will be
dismissed.
According to Plaintiff’s complaint, on or about July 31, 2015, he was detained in the
Buncombe County Jail. On March 20, 2016, Plaintiff claims he was assaulted after an unnamed
deputy sheriff ordered a hit on his life. Plaintiff contends he spoke with Defendants Gage and
Coon while in the Buncombe County Jail on September 11, 2015, and informed them that he
believed his life was in grave danger. Apparently, Plaintiff’s attorney, Defendant Smith,
accompanied him to a hearing in district court on an undisclosed date to address the perceived
threat. Following the hearing, Plaintiff believed that he would be moved for his safety; however
it appears that he was not moved prior to the attack.
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District courts are required to review a complaint under Section 1983 when a prisoner
“seeks redress from a governmental entity or officer or employee of a governmental entity.” 28
U.S.C. § 1915A(a). The statute further provides that “the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief.” § 1915A(b)(1) & (2).
In conducting this review, the Court must determine whether the complaint raises an
indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such
as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). While a
pro se complaint must be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), this
requirement of liberal construction will not permit a district court to ignore a clear failure to
allege facts in the complaint which set forth a claim that is cognizable under federal law. Weller
v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, the Court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986).
To be sure, the Eighth Amendment imposes a duty on prison officials “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (quoting Cortes-Quinones v. Jiminez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert.
denied, 488 U.S.C. 823 (1988)). To establish a claim under § 1983 for failure to protect from
violence, an inmate must show; (1) “serious or significant physical or emotional injury resulting
from the challenged conditions,” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)
(quoting Strickler v. Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)); and (2) that the prison
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official has a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834. Simply put, in order
to succeed on a claim of deliberate indifference to Plaintiff’s safety, Plaintiff must show that the
Defendants knew of and disregarded an excessive risk to Plaintiff’s health or safety, were aware
of facts from which the inference could be drawn that a substantial risk of serious harm existed,
and drew that inference. Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (citing Farmer, 511
U.S. 825 at 837).
Plaintiff’s complaint fails to state a claim for relief. First, assuming Plaintiff did inform
Defendants Gage and Coon that he believed he was in danger that was seven months before he
was apparently assaulted. Second, Plaintiff does not identify the deputy sheriff that allegedly
ordered a hit on him by name. Third, Defendants Gage and Coon have no responsibility
regarding Plaintiff’s housing within the Buncombe County Jail as that is the exclusive province
of Van Duncan, who is the present sheriff of Buncombe County. Finally, Plaintiff fails to fairly
allege any facts against Defendants Smith or Moore that could support a § 1983 claim.
Moreover, private attorneys are not state actors and are therefore not amendable to suit in a §
1983 proceeding, see Polk Cnty. v. Dodson, 454 U.S. 312 (1981); and district attorneys are
immune from suit in a § 1983 proceeding. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
Based on the foregoing, the Court finds that Plaintiff’s complaint should be dismissed for
failure to state a claim. 28 U.S.C. § 1915A(b)(1).
IT IS, THEREFORE, ORDERED that Plaintiff’s application to proceed in
forma pauperis is GRANTED. (Doc. No. 2).
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE. (Doc. No. 1).
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The Clerk of Court is respectfully directed to close this civil case.
SO ORDERED.
Signed: February 27, 2017
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