Burr v. Macon County Sheriffs Office et al
ORDER that Pltf's 1 Complaint survives initial review as to all Defts except for the Macon County Sheriff's Office. Clerk shall send Pltf summons forms to fill out so service may be made on remaining Defts. Once the Court receives the summons forms, U.S. Marshal shall effectuate service on Defts in accordance with Rule 4 of F.R.Cv.P. Signed by Chief Judge Frank D. Whitney on 2/14/2018. (Pro se litigant served by US Mail.) (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
JOSHUA L. BURR,
MACON COUNTY SHERIFF’S OFFICE, et al., )
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983, (Doc. No. 1). 28 U.S.C. § 1915(e)(2). Plaintiff has been granted in
forma pauperis status. (Doc. No. 13).
Pro se Plaintiff Joshua L. Burr, a North Carolina inmate incarcerated at Mountain View
Correctional Institution in Spruce Pine, North Carolina, filed this action on March 16, 2017,
pursuant to 42 U.S.C. § 1983. Plaintiff has named the following four Defendants: (1) Macon
County Sheriff’s Office; (2) Scott Marron, identified as a sergeant/medical officer at the sheriff’s
office; (3) Justin Crane, identified as a corporal at the sheriff’s office; and (4) Dale Clouse,
identified as an employee at the sheriff’s office. Plaintiff alleges that Defendants Clause and
Crane used excessive force against Plaintiff in violation of Plaintiff’s Eighth Amendment rights
while he was incarcerated as a pre-trial detainee at the Macon County Detention Center. Plaintiff
alleges the following facts to support his claim:
On 3/7/2017 at approximately 9:00 a.m. after trying to get the attention of the
medical officer (Dale Clause) by tapping on the door, since the food flat was
closed due to me being on “lockdown” for an argument the night before Officer
Clause came in my cell and told me to put my hands behind my back which I did
advising that it hurt to do so due to a spinal injury that I received the previous
year by being assaulted by an inmate Kris Prince while in the custody of MCSO,
Officer Clause took me upstairs via the elevator while jerking on the cuffs took
and to a holding cell 238, and put me in a restraining chair with my hands behind
my back and puling the straps as tight as he could and for almost 3 hours. I was
retightened in that chair by Officer Justin Crane and Office Mace pulling the
straps with all the strength they had, this caused me extreme pain and discomfort
due to my injury until my shoulders were throbbing and shooting pain, up my
arms and neck. I advised them by yelling that it hurt and to please put my hands
in the straps (soft cuffs) on the side. They kept my arms behind my back, while
Scott Marron sat in a chair in front of my cell and folded his arms watching me.
They are aware of my condition, which is worsened as a result in pain and
stiffness affecting my dexterity with my hands. It has caused me great anxiety
and depression as well as the physical damage. I will have no chance of
continuing my trade as an electronic technician/fiber/optic tech/installer.
(Doc. No. 1 at 3-4). Plaintiff seeks declaratory and injunctive relief, as well as
compensatory damages. (Id. at 4).
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
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).
Here, based on his factual allegations, it appears that Plaintiff purports to bring a claim
against Defendants Crane and Clause for excessive force, with a failure to intervene claim
against Defendant Marron. 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).1 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). In
adjudicating an excessive force claim, 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 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,
130 S.Ct. 1175, 1178-79 (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
Because Plaintiff was a pre-trial detainee, Plaintiff’s excessive force claim is properly brought
under the Fourteenth Amendment Due Process clause. However, the analysis is the same as
Eighth Amendment excessive force claims.
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
Id. at 1178-79 (citations omitted).
Next, as to Plaintiff’s claim against Defendant Marron based on failure to intervene to
stop the alleged excessive force, law enforcement officials may be held liable in Section 1983
actions in which the officials “fail or refuse to intervene when a constitutional violation such
as an unprovoked beating takes place in [their] presence.” Ensley v. Soper, 142 F.3d 1402, 1407
(11th Cir. 1998); see also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). To succeed on a
theory of what is sometimes called “bystander liability,” a plaintiff must show that the defendant
police officer: (1) knows that a fellow officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act. Randall
v. Prince George’s Cnty., 302 F.3d 188, 204 (4th Cir. 2002).
The Court finds that, taking Plaintiff’s allegations as true for the purposes of initial
review, and construing all inferences in Plaintiff’s favor, this action survives initial screening as
to all Defendants except for the Macon County Sheriff’s Office, which is not a legal entity
subject to suit in this Section 1983 action. Revene v. Charles Cnty. Com'rs, 882 F.2d 870, 874
(4th Cir. 1989) (“The separate claim against the ‘Office of Sheriff’ was rightly dismissed on the
basis that this ‘office’ is not a cognizable legal entity separate from the Sheriff in his official
capacity and the county government . . . .”).
In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A as to all Defendants except for the Macon County Sheriff’s Office.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review as to all Defendants except
for the Macon County Sheriff’s Office.
2. The Clerk shall send Plaintiff a summons forms to fill out so that service may be
made on the remaining Defendants. Once the Court receives the summons forms, the
U.S. Marshal shall effectuate service on Defendants in accordance with Rule 4 of the
Federal Rules of Civil Procedure.
Signed: February 14, 2018
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