Battle v. NC Dept. of Public Safety - Prisons et al

Filing 32

ORDER that the 14 Amended Complaint shall proceed against Defts Bailey, Bell, Clark, Coble, Crisp, DAmico, Geouge, Hall, Hensley, Jones, Litaker, Porshia, Quintero, Swink, Tate, Taylor, Thompson, and Waltz for deliberate ind ifference to a serious medical need; against Defts Bailey, Geouge, Hensley, and Porshia for retaliation; and against supervisor Defts Anderson, Beaver, Chapman, Glick, Penland, Pittman, Taylor, and Watson for failing to stop their subordinates' misconduct, survives initial review under 28 U.S.C. § 1915; remaining claims are dismissed pursuant to 28 U.S.C. § 1915(a)(2)(e)(ii); Motion for a Preliminary Injunction incorporated in the 14 Complaint is DENIED; Pltf's 20 "E mergency Preliminary Injunction and Restraining Order," is DENIED; Clerk of Court shall commence procedure for waiver of service as set forth in LR 4.3 for Defts Anderson, Beaver, Bell, Chapman, Coble, Crisp, Glick, Hall, Jones, Litaker, Penland , Quintero, Swink, Tate, Thompson, and Waltz, who are current or former employees of NC DPS; U.S. Marshal shall use all reasonable efforts to locate and obtain service on Deft Taylor, and if U.S. Marshal is unable to obtain service on Deft Taylor, U .S. Marshal shall inform the Court of reasonable attempts to obtain service. Clerk of Court is respectfully instructed to mail a copy of 14 Amended Complaint, 23 Sealed Notice containing Deft Taylor's last known address, and this Order to the U.S. Marshal. Signed by Chief Judge Frank D. Whitney on 9/26/2018. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-174-FDW
KENNETH ANTHONY BATTLE,

)
)
Plaintiff,
)
)
vs.
)
)
NORTH CAROLINA DEPARTMENT OF
)
PUBLIC SAFETY, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint,
(Doc. No. 14), and on Plaintiff’s “Emergency Preliminary Injunction and Restraining Order,”
(Doc. No. 20). Plaintiff is proceeding in forma pauperis. See (Doc. No. 9). The Amended
Complaint is the operative pleading.1
I.

BACKGROUND

Pro se incarcerated Plaintiff has filed a civil rights suit pursuant to 42 U.S.C. § 1983 with
regards to incidents surrounding his latex allergy that allegedly occurred at the Avery-Mitchell
Correctional Institution.2 The Complaint passed initial review for deliberate indifference against
Defendants Clark, Porshia, Hensley, and D’Amico for exposing him to latex despite knowing of
his medically documented latex allergy, against Defendants Porshia, Hensley, Geouge, Taylor, and
Bailey for retaliation, and against supervisors Taylor, Pittman, and Watson for being either
personally involved in the violations or for knowing of their officers’ and staff’s actions and failing

1

Defendants Geouge and Hensley previously sought an extension of time to file an Answer to the
“Complaint.” See (Doc. Nos. 30, 31). They are cautioned that the Amended Complaint is the operative pleading.
2

Plaintiff currently resides at the Johnston Correctional Institution.

1

to stop them.
Plaintiffs names the following employees of Alexander C.I. as Defendants in the
Amended Complaint for incidents that allegedly occurred in 2018 and are ongoing: Assistant Unit
Manager Stephanie A. Hall, Facility Administrator Ken Beaver, Assistant Superintendent of
Programs Mr. Anderson, Unit Manager Mr. Crisp, Provider Dr. Williams Jones, Nurse
Manager Ms. Chapman, Lead Nurse Mr. Bell, Investigator Christopher P. Murry, Shift
Supervisor Sgt. Waltz, Shift Officer Swink.
He names the following employees of Albemarle C.I. as Defendants for incidents that
allegedly occurred in 2016: Assistant Superintendent of Programs William Glick III, Unit
Manager Michael D. Thompson, Lead Nurse S. Litaker, Facility Provider Dr. Coble.
He names the following employees of Avery-Mitchell C.I. as Defendants for incidents
that allegedly occurred in 2015 and 2016: Shift Supervisor Sgt. Tate, Shift Supervisor Lt.
Quintero, Assistant Superintendent of Programs Jason Penland, Assistant Superintendent of
Custody Gregory Taylor, Assistant Unit Manager Mark Randall Geouge, Physician Assistant
Keith D’Amico, Correctional Officer Clark, Correctional Officer Porshia, Correctional Officer
Hensley, Correctional Officer Bailey, Correctional Officer Captain Pittman, and Correctional
Officer Captain Watson.
Construing the Amended Compliant liberally and accepting the allegations as true, Plaintiff
has suffered from a severe latex allergy since 2014, for which he had a medical “490” card when
he arrived at Alexander C.I. (Doc. No. 14 at 15). The allergy precludes Plaintiff from using the
plastic/nylon mats or pillows that prisons provide for bedding. Plaintiff has had a doctor’s order
for cloth-only mattresses and pillows since 2014. Using plastic/nylon mats and pillows causes skin
reactions including severe pain, redness, bruising, itching, irritation, cracking, and peeling with
2

sores.
Alexander C.I.
Defendant Hall, who is “in authority,” failed to follow Dr. Jones’ order regarding the
severe latex allergy and Plaintiff’s need for cloth mattresses and pillows. She had Dr. Jones
“change or delete any and all of [Plaintiff’s] latex treatment and precautions so the facility would
not have to purchase cloth mattresses and pillows….” (Doc. No. 14 at 15). This forced Plaintiff to
sleep on the plastic/nylon mats and pillows or nothing at all.
Defendant Beaver, the facility administrator, was notified by letter about Plaintiff’s
attempt to get a preliminary injunction and temporary restraining order, that Plaintiff was trying to
have his cloth mattresses and pillows returned to him. Plaintiff also made Beaver aware of his
staff’s intentional interference and indifferent attitude towards Plaintiff’s medical issues. After
Plaintiff explained the issues to him, Beaver never stepped in to stop his subordinates’ conduct
that continued to pose a pervasive and unreasonable risk to Plaintiff’s health. Beaver sent a
response letter to Plaintiff on June 4, 2018, should have stopped the violations but he refused to
stop his staff’s actions and instructed him to contact medical through the approved methods.
Defendant Anderson, is the supervisor of the medical department. He failed to stop
Defendants Bell, Chapman, and Jones from deliberately and continuously interfering with
Plaintiff’s medical treatment and precautions. Anderson did nothing to stop these practices even
after he knew that his subordinates were engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury.
Defendant Crisp was made aware of Plaintiff’s severe latex allergy and his need for cloth
mattresses and pillows upon Plaintiff’s arrival at the facility. He ignored Plaintiff’s medical needs
and the seriousness of the allergy.
3

Defendant Jones ignored Plaintiff’s prior diagnosis of a latex allergy and the need for cloth
mattresses and pillows. He stopped “all treatment and precautions” that were previously prescribed
by other physicians. (Doc. No. 14 at 17). On May 30, 2018, Plaintiff had an appointment with
Defendant Jones where he reviewed the dermatology reports confirming his latex allergy,
Plaintiff’s medical notes, and a “490” showing that Plaintiff needs cloth mattresses and pillows.
Defendant Jones renewed Plaintiff’s “490” for cloth mattresses and pillows. However, later that
evening, a nurse informed Plaintiff that Jones changed the “490” at the request of Defendants Hall
and Bell, and removed all information about Plaintiff’s latex allergy from his medical “490.”
Defendant Chapman, as nurse manager, failed to adequately and truthfully investigate the
actions of Bell and Jones by changing and stopping Plaintiff’s latex treatment and precautions.
She failed to stop her subordinate from intentionally interfering with Plaintiff’s latex treatment and
failed to inform Defendant Beaver of Defendant Jones’ halting of Plaintiff’s latex treatment.
Defendant Bell personally interfered with the medical treatment that Jones prescribed by
having Jones change the medical “490” to remove any latex treatment and the order for cloth
mattresses and pillows even though Bell knew of Plaintiff’s allergy and the need for cloth
mattresses and pillows. Bell continued to refuse to order the cloth mattresses and pillows even
after Plaintiff showed him positive skin reactions from having contact with the plastic/nylon mats
and pillows.
Defendant Murray refused to adequately and truthfully investigate Plaintiff’s complaints
about his medical needs. Murray’s failure to find a clear solution to Plaintiff’s medical needs has
placed Plaintiff at real and imminent risk of harm or lost life.
Defendant Waltz has acted “tyrannical[ly]” by refusing to adhere to any of Plaintiff’s
doctors’ orders with regards to the latex allergy and by ignoring Plaintiff’s severe latex allergy and
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his need for cloth mattresses and pillows. (Doc. No. 14 at 18).
Defendant Swink ignored the severity of Plaintiff’s latex allergy by refusing to issue
Plaintiff a cloth mattress or pillow.
Albemarle C.I.
Defendant Glick, who is the manager of the Medical Department at Albemarle C.I., failed
to stop Lead Nurse Litaker from interfering with Plaintiff’s medical treatment and precautions
concerning his latex allergy. Even after Glick learned the truth about Plaintiff’s severe latex
allergy, he continued to allow his subordinates to engage in conduct that posed a risk to Plaintiff’s
future health.
Defendant Thompson was made aware of Plaintiff’s severe latex allergy when Plaintiff
arrived at the facility but he refused to adhere to a doctor’s order confirming Plaintiff’s latex allergy
and refused to use non-latex gloves.
Defendant Litaker personally interfered with Plaintiff’s medical treatment by giving false
information to the grievance investigator and manager over medical concerning Plaintiff’s severe
latex allergy and the need for an alert bracelet when she reported that Plaintiff is not allergic to
latex contrary to his diagnosis by a specialist with having a severe latex allergy.
On November 24, 2016, Defendant Coble touched Plaintiff’s stomach while wearing latex
gloves despite knowing about Plaintiff’s severe latex allergy. His actions caused Plaintiff to have
a severe skin reaction on his stomach are of pain, redness, and bruising.
Avery-Mitchell C.I.
Defendants Tate and Quintero, who are both supervisors, failed to provide Plaintiff with
adequate bedding when Plaintiff returned to Avery-Mitchell even though they were aware of
Plaintiff’s latex allergy and his need for cloth mattresses and pillows. Tate and Quintero were
5

aware of Plaintiff’s return to the facility before his arrival which notified them to be prepared with
the proper bedding. They failed to do so and, as a result, Plaintiff was forced to sleep without
bedding.
Defendant Penland is the manager over the Medical Department at Avery-Mitchell. He
failed to stop his staff from intentionally interfering with Plaintiff’s latex medical treatment and
precautions even after he became aware that his subordinates’ conduct.
Defendant Taylor intentionally denied or delayed Plaintiff’s access to medical care and
intentionally interfered with treatment for Plaintiff’s severe latex allergy. He was personally
involved and ignored Plaintiff’s need for help. He was made aware of his officers’ misconduct on
October 25 and January 16, 2016 in the lunch line but he refused to intervene, telling Plaintiff “that
he was told to stay out of the situation.” (Doc. No. 14 at 22).
Defendant Geouge retaliated against Plaintiff by intentionally exposing Plaintiff to latex
while searching his property despite knowing of Plaintiff’s latex allergy and by destroying or
taking a lot of Plaintiff’s food items in retaliation for Plaintiff exercising his First Amendment
rights.
Defendant D’Amico taped latex to Plaintiff’s left arm despite Plaintiff’s prior diagnosis
with a latex allergy in an attempt to test the allergy for himself, which he is not qualified to do.
The latex remained on Plaintiff’s skin for hours which eventually caused Plaintiff to call a medical
emergency due to pain, injury, and scarring.
Defendant Clark ignored Plaintiff’s latex allergy and allowed Plaintiff to be exposed to
latex on the lunch serving line on October 25. When Plaintiff complained about the latex exposure
which was causing an allergic reaction on Plaintiff’s arms and neck, Clark told him to “fill out a
grievance if [he] died.” (Doc. No. 14 at 23).
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Officer Porshia wore latex gloves on November 22 when he searched Plaintiff in the
dining hall despite knowing of Plaintiff’s latex allergy. Plaintiff showed Porshia his “490” card
and offered him non-latex gloves but he refused and continued to search wearing the latex gloves.
On January 17, 2016, Porshia again ignored Plaintiff’s allergy and retaliated by destroying food
and property while searching Plaintiff’s locker.
Defendant Hensley allowed Plaintiff to be exposed to latex on the lunch serving line on
October 25 despite knowing of Plaintiff’s latex allergy. On November 22, Hensley wore latex
gloves when he searched Plaintiff in the dining hall. Plaintiff showed Hensley his “490” card
showing the allergy and offered him non-latex gloves but he refused and continued to search
wearing the latex gloves. On January 17, 2016, Hensley retaliated against Plaintiff by destroying
property and food while he searched Plaintiff’s locker.
Defendant Bailey retaliated against Plaintiff by intentionally exposing Plaintiff to latex on
January 17, 2016, for exercising his First Amendment right to object to the various negatives
actions he was performing or had performed.
Defendant Pittman, as the Officer in Charge, was informed by Plaintiff about the incident
with his subordinates Clark, Hensley and Porsha on October 25, 2016 in the dining hall. Pittman
refused to listen, stating that he did not believe the officers’ alleged actions. He would not consider
inmate witnesses or written statements. He refused to investigate or stop officers’ continued abuse
and retaliation.
Defendant Watson of Internal Affairs at Avery-Mitchell refused to investigate the October
25 incident after Plaintiff informed him about it and provided him with copies of witness
statements. He helped to protect these officers by sweeping the matter under the rug and failing to
stop their actions.
7

As injury, Plaintiff alleges that, when he is touched during searches with latex gloves that
have caused severe skin reactions with pain, redness, bruising, itching, cracking, and peeling with
sores. This also happens when he is made to sleep on plastic/nylon mattresses and pillows. He
then states verbatim “Given triamcinolone acetonide ointment USP, 0.1%, I require cloth
mattresses and pillows to use as bedding, however Alexander C.I. has refused to order them for
me.” (Doc. No. 14 at 14).
Plaintiff requests emergency injunctive relief, compensatory damages, punitive damages,
and any additional relief the Court deems just, proper, and equitable.
II.

PRELIMINARY INJUNCTION

A preliminary injunction is an extraordinary remedy that is never awarded as of right.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Pashby v. Delia, 709 F.3d 307,
319 (4th Cir. 2013). 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. Village of Gambell, 480 U.S. 531, 542 (1987). To obtain a preliminary injunction, a
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. Winter, 555 U.S. at 20; Di Biase v. SPX
Corp., 872 F.3d 224, 229 (4th Cir. 2017). A prisoner’s transfer moots a § 1983 request for
declaratory and injunctive relief when the conditions of which the prisoner claims are unlikely to
recur. See Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047,
1048 n.1 (4th Cir. 1986).
Plaintiff alleges in the Amended Complaint and in his Motion for emergency injunctive
relief that latex gloves are being used at his current institution, Johnson C.I., for everything from
8

cooking and serving food in the dining hall to the medical department, and that he needs cloth
mattresses and pillows. He alleges that, without an emergency injunction, he will “surely suffer
irreparable harm, which has already [begun] to happen.” (Doc. No. 20 at 1).
Plaintiff has failed to establish that he is likely to succeed on the merits. Moreover, his
conclusory claim that he is likely to suffer irreparable harm in the absence of preliminary relief is
too uncertain to support relief. Therefore, Plaintiff’s Motion for Preliminary Injunction
incorporated in the Amended Compliant, and the Motion seeking emergency injunctive relief, will
be denied.
III.

INITIAL REVIEW STANDARD

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a 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). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to
relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
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pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). 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). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
IV.
(1)

DISCUSSION

Deliberate Indifference
“[T]he treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment,” Helling v. McKinney, 509 U.S.
25, 31 (1993). In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places
restraints on prison officials, who may not, for example, use excessive physical force against
prisoners. Hudson v. McMillian, 503 U.S. 1, 1 (1992).
A prison official violates the Eighth Amendment only when two requirements are met.
First, the deprivation alleged must be, objectively, “sufficiently serious,” Wilson v. Seiter, 501
U.S. 294, 298 (1991); see also Hudson, 503 U.S. at 5, and must result in the denial of “the minimal
civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The second
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requirement is subjective and requires that a prison official must have a “sufficiently culpable state
of mind.” Wilson, 501 U.S. at 297, 302-03; Hudson, 503 U.S. at 5, 8.
An actionable deliberate indifference claim does not require proof that the plaintiff suffered
an actual injury. Instead, it is enough that the defendant’s actions exposed the plaintiff to a
“substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added).
The 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, 511 U.S. at
837; Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998).
To state a prima facie case of deliberate indifference to a serious medical need, a plaintiff
must show that he had serious medical needs and that the defendant acted with deliberate
indifference to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir.
2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). 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, 535 F.3d at 241
(internal quotation marks omitted). To constitute deliberate indifferent to a serious medical need,
“the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to
shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848,
851 (4th Cir. 1990), overruled on other grounds by Farmer, 511 U.S. at 825. However, mere
negligence or malpractice does not violate the Eighth Amendment. Miltier, 896 F.2d at 852.
At Alexander C.I., Plaintiff contends that Defendant Jones ignored Plaintiff’s previously
diagnosis latex allergy and need for cloth bedding, stopped all treatment and precautions that had
been prescribed by other doctors, and removed these restrictions from Plaintiff’s “490” card at the
11

request of Assistant Unit Manager Hall and Lead Nurse Bell, even though Jones had dermatology
reports and medical notes confirming Plaintiff’s allergy and showing that he needed cloth bedding.
Defendant Hall interfered with Dr. Jones’ order regarding a severe latex allergy and Plaintiff’s
need for cloth bedding by having Jones change or delete all latex precautions so that the facility
would not have to purchase cloth bedding, which forced Plaintiff to sleep on plastic/nylon or
nothing at all. Defendant Bell interfered with the treatment that Dr. Jones had prescribed by having
Jones change the medical “490” to remove any latex treatment and order for cloth bedding even
though Bell knew of Plaintiff’s allergy and need for cloth bedding. Defendant Crisp was aware of
Plaintiff’s severe latex allergy and need for cloth bedding but ignored Plaintiff’s needs. Bell
continued to refuse to order Plaintiff cloth bedding even after Plaintiff showed him positive skin
reactions from having contact with plastic/nylon bedding. Defendant Waltz refused to adhere to
Plaintiff’s doctors’ orders about his latex allergy and ignored Plaintiff’s need for cloth bedding.
Defendant Swink ignored the severity of Plaintiff’s latex allergy by refusing the issue Plaintiff
cloth bedding.
At Albemarle C.I., Defendant Thompson was made aware of Plaintiff’s severe latex allergy
but refused to adhere to a doctor’s order confirming Plaitniff’s allergy and refused to use non-latex
gloves. Defendant Litaker gave false information to a grievance investigator and manager that
Plaintiff does not have a latex allergy or need an alert bracelet, contrary to Plaintiff’s diagnosis by
a specialist with a severe latex allergy. On November 24, 2016, Defendant Coble touched
Plaintiff’s stomach with latex gloves despite knowing about Plaintiff’s severe latex allergy.
At Avery-Mitchell C.I., Defendants Tate and Quintero failed to provide Plaintiff with cloth
bedding even though they knew of Plaintiff’s latex allergy and need for cloth bedding and had
notice that Plaintiff would be returning to the facility. Defendant Taylor intentionally interfered
12

with Plaintiff’s access to medical treatment and ignored his need for help for his severe latex
allergy. Defendant D’Amico taped latex to Plaintiff’s arm despite his prior diagnosis of a latex
allergy in an attempt to test the allergy, which he is not qualified to do. Defendants Clark and
Hensley ignored Plaintiff’s allergy and allowed him to be exposed to latex on the lunch serving
line on October 25 and, when Plaintiff complained about his allergic reaction, Clark told him to
fill out a grievance if he died. Defendants Geouge, Porshia, Hensley, and Bailey intentionally
exposed Plaintiff to latex while searching his property.
The Court will assume for purposes of this discussion that the alleged latex allergy is a
serious medical need. See, e.g., Mutschler v. SCI Albion CHCA Health Care, 445 Fed. Appx. 617
(3d Cir. 2011) (unpublished) (it was undisputed that the complaint adequately alleged that the
plaintiff’s latex allergy was serious, as he had allegedly suffered pain, blisters, and scarring).
Liberally construing the allegations, Plaintiff has stated a plausible deliberate indifference
claim against Defendants Bailey, Bell, Clark, Coble, Crisp, D’Amico, Geouge, Hall, Hensley,
Jones, Litaker, Porshia, Quintero, Swink, Tate, Taylor, Thompson, and Waltz for exposing
him to latex despite knowing of his medically documented latex allergy.
(2)

Due Process
The Fourteenth Amendment’s Due Process Clause provides that no person shall be

deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. The
first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected
interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and
Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’
the question of what process is required and whether any provided could be adequate in the
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particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not
implicated.” Stone, 855 F.2d at 172.
(a) Property
Where a state employee’s random, unauthorized act deprives an individual of property,
either negligently or intentionally, the individual is relegated to his state post-deprivation process,
so long as the State provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S.
517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986)). However, post-deprivation remedies do not satisfy the due
process requirement where the deprivation complained of is effected pursuant to an established
state procedure rather than a random, unauthorized action. Logan v. Zimmerman Brush Co., 455
U.S. 422 (1982).
Under North Carolina law, an action for conversion will lie against a public official who
wrongfully deprives an owner of his property by an unauthorized act. Gallimore v. Sink, 27
N.C.App. 65, 67, 218 S.E.2d 181, 182 (1975). North Carolina’s post-deprivation remedies are
adequate. N.C. Gen. Stat. § 143-291; see Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983) (due
process is satisfied where North Carolina tort law provides an adequate avenue for relief for state
prisoner).
Plaintiff contends that Defendants Geouge, Taylor, and Bailey took or destroyed property
and food while they searched his cell.
Plaintiff appears to allege that his property loss resulted from a random, unauthorized
action rather than an established state procedure. Adequate post-deprivation remedies exist for
Plaintiff’s alleged property loss, so there is no legal theory which would support this claim. See,
e.g., Smith v. Ledford, 2006 WL 1431666 at *2 (W.D.N.C. May 22, 2006), aff’d, 203 Fed. Appx.
14

484 (4th Cir. 2006) (dismissing plaintiff’s claim that jail administrator confiscated his personal
property upon his departure from the jail and refused to return it, because plaintiff had an adequate
post-deprivation remedy for conversion).
Therefore, to the extent that Plaintiff attempts to state a due process claim for depriving
him of property, it will be dismissed.
(b) Investigation
“The Due Process Clauses generally confer no affirmative right to governmental aid, even
where such aid may be necessary to secure life, liberty, or property interests of which the
government itself may not deprive the individual. See generally DeShaney v. Winnebago County
Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989))). Thus, there is no “fundamental right requiring
prison administrators [to] investigate prisoner complaints.” Mitchell v. Murray, 856 F.Supp. 289,
294 (E.D. Va. 1994); see, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (arrestee
had no constitutional right to internal investigation of excessive force claim); Savage v. County of
Stafford, Va., 754 F.Supp.2d 809 (E.D. Va. 2010) (deputy sheriff’s alleged failure to document
and investigate arrestee’s alibi did not violate due process).
Plaintiff alleges that Defendants Chapman, Murray, Pittman, and Watson refused to
adequately and truthfully investigate Plaintiff’s complaints about various acts of deliberate
indifference and retaliation.
Because there is no constitutional right to an investigation, Plaintiff has failed to state a
claim for § 1983 relief against these Defendants for failure to investigate, and this claim will be
dismissed.
(3)

Retaliation
Prison officials may not retaliate against an inmate for exercising a constitutional right. See
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Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir.1978). To succeed on a retaliation claim, a
plaintiff must first allege that “the retaliatory act was taken in response to the exercise of a
constitutionally protected right....” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Thereafter, a
plaintiff must demonstrate that he suffered some adverse impact or actual injury. See American
Civ. Liberties Union of Md., Inc. v. Wicomico Cnty., 999 F.2d 780, 785 (4th Cir. 1993) (citing
Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th Cir. 1990)). In addition, a
plaintiff must come forward with specific evidence “establish[ing] that but for the retaliatory
motive the complained of incident[s] ... would not have occurred.” Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995); accord Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991) (plaintiff must
show that action would not have occurred “but for” the alleged reprisal); Collinson v. Gott, 895
F.2d 994, 1002 (4th Cir. 1990) (Phillips, J., concurring); McDonald v. Hall, 610 F.2d 16, 18–19
(1st Cir. 1979). In the prison context, such claims are treated with skepticism because “[e]very act
of discipline by prison officials is by definition ‘retaliatory’ in the sense that it responds directly
to prisoner misconduct.” Adams, 40 F.3d at 74.
Plaintiff alleges that, at Avery-Mitchell C.I., Defendants Geouge, Porshia, Hensley, and
Bailey intentionally exposed him to latex and destroying his food and property in retaliation for
exercising his First Amendment rights. This claim is sufficient to pass initial review.
Therefore, Plaintiff’s retaliation claim against Defendants Bailey, Geouge, Hensley, and
Porshia and will be permitted to proceed.
(4)

Supervisors
For a supervisor to be personally liable, “it is enough to show that the official, acting under

color of state law, caused the deprivation of a federal right.” Kentucky v. Graham, 473 U.S. 159,
166 (1985). A supervisor can also be liable under a theory of supervisory liability when: (1) he
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knew that his subordinate “was engaged in conduct that posed a pervasive and unreasonable risk
of constitutional injury;” (2) his response showed “deliberate indifference to or tacit authorization
of the alleged offensive practices;” and (3) that there was an “affirmative causal link” between his
inaction and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal
quotation marks omitted); see King v. Rubenstein, 825 F.3d 206, 223–24 (4th Cir. 2016).
At Alexander C.I., Defendant Beaver knew about Plaintiff’s attempt to obtain preliminary
injunctive relief for the return of his cloth bedding and Plaintiff made him aware of staff’s
intentional and indifferent attitude toward his medical issues but failed to stop his subordinates’
conduct. Defendant Anderson, supervisor of the medical department, failed to stop his
subordinates (Bell, Chapman and Jones) from deliberately and continuously interfering with
Plaintiff’s medical treatment and precautions. Defendant Chapman, as nurse manager, failed to
stop her subordinates from intentionally interfering with Plaintiff’s latex treatment and failed to
inform Beaver that Jones had halted Plaintiff’s latex treatment.
At Albemarle C.I., Defendant Glick, who is the manager of the Medical Department, failed
to stop Lead Nurse Litaker from interfering with Plaintiff’s medical treatment and precautions
concerning his latex allergy. Even after Glick learned the truth about Plaintiff’s severe latex
allergy, he continued to allow his subordinates to engage in conduct that posed a risk to Plaintiff’s
future health.
At Avery-Mitchell C.I., Defendant Penland, who is the Medical Department manager,
failed to stop his staff from intentionally interfering with Plaintiff’s latex medical treatment and
precautions after he became aware that his subordinates’ conduct. Defendant Taylor was made
aware of his officers’ misconduct on October 25 and January 16, 2016, and refused to intervene,
telling Plaintiff that he was told to stay out of the situation. Defendant Pittman, as Officer in
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Charge, was informed by Plaintiff about his subordinate’s (Clark, Hensley, and Porsha)
misconduct on October 25, 2016, in the dining hall. Pittman refused to listen or consider witness
statements and said that he did not believe his officers’ actions. Defendant Watson of internal
affairs helped protect the officers involved in the October 25 incident and failed to stop their
actions.
Plaintiff has stated a facially sufficient claim against the foregoing supervisory Defendants
by alleging that they were either personally involved in the violations or knew of their officers’
and staff’s actions and failed to stop them.
Therefore, Plaintiff’s supervisory claims against Defendants Anderson, Beaver,
Chapman, Glick, Penland, Pittman, Taylor, and Watson may proceed.
V.

CONCLUSION

For the reasons stated herein, the Amended Complaint is sufficient to proceed against
Defendants Bailey, Bell, Clark, Coble, Crisp, D’Amico, Geouge, Hall, Hensley, Jones, Litaker,
Porshia, Quintero, Swink, Tate, Taylor, Thompson, and Waltz for deliberate indifference to a
serious medical need; against Defendants Bailey, Geouge, Hensley, and Porshia for retaliation;
and against supervisors Defendants Anderson, Beaver, Chapman, Glick, Penland, Pittman,
Taylor, and Watson for failing to stop their subordinates’ misconduct. The remaining claims are
dismissed pursuant to 28 U.S.C. § 1915(a)(2)(e)(ii). The Motion for Preliminary Injunction that is
incorporated in the Complaint will be denied, as will the separately-filed Motion seeking
emergency injunctive relief.
IT IS, THEREFORE, ORDERED that:
1. The Amended Complaint shall proceed against Defendants Bailey, Bell, Clark, Coble,
Crisp, D’Amico, Geouge, Hall, Hensley, Jones, Litaker, Porshia, Quintero, Swink,
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Tate, Taylor, Thompson, and Waltz for deliberate indifference to a serious medical
need; against Defendants Bailey, Geouge, Hensley, and Porshia for retaliation; and
against supervisor Defendants Anderson, Beaver, Chapman, Glick, Penland,
Pittman, Taylor, and Watson for failing to stop their subordinates’ misconduct, survives
initial review under 28 U.S.C. § 1915.
2. The remaining claims are dismissed pursuant to 28 U.S.C. § 1915(a)(2)(e)(ii).
3. The Motion for a Preliminary Injunction that is incorporated in the Complaint is
DENIED.
4. Plaintiff’s “Emergency Preliminary Injunction and Restraining Order,” (Doc. No. 20),
is DENIED
5. IT IS FURTHER ORDERED THAT the Clerk of Court shall commence the
procedure for waiver of service as set forth in Local Rule 4.3 for Defendants Anderson,
Beaver, Bell, Chapman, Coble, Crisp, Glick, Hall, Jones, Litaker, Penland,
Quintero, Swink, Tate, Thompson, and Waltz, who are current or former employees
of NC DPS.
6. The U.S. Marshal shall use all reasonable efforts to locate and obtain service on
Defendant Taylor. If the U.S. Marshal is unable to obtain service on Defendant Taylor,
the U.S. Marshal shall inform the Court of the reasonable attempts to obtain service.
7. The Clerk of Court is respectfully instructed to mail a copy of the Amended Complaint,
(Doc. No. 14), the Sealed Notice containing Defendant Taylor’s last known address,
(Doc. No. 23), and this Order to the U.S. Marshal.
Signed: September 26, 2018

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