Wilson v. Wilson et al

Filing 6

ORDER Dismissing 1 Complaint as facially insufficient pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in accordance with this order and all appl icable rules and procedures. (Amended Complaint due by 08/28/18). Plaintiff's failure to file an Amend Complaint in accordance with this Order will result in action being dismissed and closed without prejudice and without further notice to Plaintiff. Signed by Chief Judge Frank D. Whitney on 08/13/18. (Pro se litigant served by US Mail.)(emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-301-FDW
MARCUS A. WILSON,

)
)
Plaintiff,
)
)
vs.
)
)
FNU WILSON, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint. (Doc. No.
1). He is proceeding in forma pauperis. See (Doc. No. 5).
I.

BACKGROUND

Pro se incarcerated Plaintiff has filed a Complaint pursuant to 42 U.S.C. § 1983. He has
named as Defendants Central Prison Doctor Wilson, Cleveland County Detention Center Doctor
Maldonado and Cleveland County Detention Center Lieutenant Cary.
Liberally construing the Complaint and accepting the allegations as true, Plaintiff suffers
from conditions including Crohns Disease for which surgery and procedures were scheduled by
UNC doctors on an unspecified date. His medical conditions are causing him pain and symptoms
including blood drainage that are worsening and require surgery.
As relief, Plaintiff seeks, verbatim, “to start this lawsuit procedure and to understand my
point of view that this situation is very serious and dangerous toward my life.” (Doc. No. 1 at 56).
II.

STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
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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
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
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articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.

DISCUSSION

The Complaint is insufficient to proceed because Plaintiff has failed to describe the
Defendants’ alleged actions and explain how each Defendant has violated his rights under the color
of state law. See generally Fed. R. Civ. P. 8(a)(2) (short and plain statement of the claim is
required); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege
facts, directly or indirectly, that support each element of the claim); Simpson v. Welch, 900 F.2d
33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact
are not sufficient). Nor has Plaintiff set forth any intelligible demand for relief. Fed. R. Civ. P.
8(a)(3).
V.

CONCLUSION

For the reasons stated herein, the Complaint is deficient and subject to dismissal. Plaintiff
shall have fourteen (14) days in which to file an Amended Complaint in which he may attempt to
cure these deficiencies and state a facially sufficient claim for relief. Although Petitioner is
appearing pro se, he is required to comply with all applicable timeliness and procedural
requirements, including the Local Rules of the United States District Court for the Western District
of North Carolina and the Federal Rules of Civil Procedure. The Amended Complaint must be on
a § 1983 form, which the Court will provide, and it must refer to the instant case number so that it
is docketed in the correct case. It must contain a “short and plain statement of the claim” showing
that Plaintiff is entitled to relief against each of the defendants. Fed. R. Civ. P. 8(a)(2). The
Amended Complaint must contain all claims Plaintiff intends to bring in this action, identify all
defendants he intends to sue, and clearly set forth the factual allegations against each of them.
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Plaintiff may not amend his Complaint by merely adding defendants and claims in a piecemeal
fashion. The Amended Complaint will supersede the original Complaint so that any claims or
parties omitted from the Amended Complaint will be waived. See Young v. City of Mt. Ranier,
238 F.3d 567 (4th Cir. 2001).
IT IS, THEREFORE, ORDERED that:
1. The Complaint, (Doc. No. 1), is DISMISSED as facially insufficient pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
2. Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in
accordance with this order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint in accordance with this Order, this action will be dismissed
and closed without prejudice and without further notice to Plaintiff.
3. The Clerk is directed to mail a copy of a new Section 1983 complaint form to Plaintiff.

Signed: August 13, 2018

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