Harrison v. LNU

Filing 8

ORDER re: 1 Complaint survives initial review. Clerk to send copy of Order and blank summons to Plaintiff who shall complete and return summons to Clerk within 15 days of entry of this order; Clerk shall prepare process for delivery to US Marshals for service of process upon Defendant. Signed by Chief Judge Frank D. Whitney on 08/03/2018. (Pro se litigant served by US Mail.) (ni)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00308-FDW
MARQUIS DECHANE HARRISON,

)
)
Plaintiff,
)
)
vs.
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)
BRANDON LNU,
)
)
Defendant.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff Marquis Dechane
Harrison’s pro se civil rights Complaint, 42 U.S.C. § 1983 (Doc. No. 1). See 28 U.S.C. §§
1915A, 1915(e).1
I.

BACKGROUND

Plaintiff was a pre-trial detainee at the Henderson County Detention Center when he filed
the instant Complaint. Plaintiff alleges that Defendant Brandon, identified as a correctional
officer, used excessive force against him. (Compl. 3-4, Doc. No. 1.) Specifically, Plaintiff
alleges that on October 28, 2017, he was offered an additional 30 minutes of recreation time if he
picked up breakfast trays. When Plaintiff declined the offer and stated he wished to take his free
time, he was directed to go back to his cell for refusing to pick up the trays. Plaintiff refused to
go back to his cell and, instead, proceeded to the showers. Plaintiff alleges that while he was
showering, Defendant Brandon and others came into the room, and he and Brandon
“exchange[d] a few words.” When Plaintiff turned his back, Brandon stepped into the shower

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Plaintiff has filed an application to proceed in forma pauperis. (Doc. No. 3.) On January 31, 2018, the Clerk of
Court entered an order waiving the initial filing fee and directing monthly payments to be made from Plaintiff's
prison account. (Doc. No. 7.)

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stall, put his arm around Plaintiff’s neck, and began choking him, causing Plaintiff to slip and
fall. According to Plaintiff, Brandon landed on top of him and began punching Plaintiff in the
side and face with a closed fist. Brandon then grabbed Plaintiff by the hair and tried to push his
face into the shower floor while telling Plaintiff to put his hands behind his back. Plaintiff
complied with Brandon’s order. (Compl. 3-4, Doc. No. 1.)
According to Plaintiff, he suffered abrasions and swelling on the left side of his face and
a black eye. Plaintiff asserts that he was not disciplined in relation to the shower incident. He
seeks monetary damages. (Compl. 4.)
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,” “malicious,”
“fails to state a claim on which relief may be granted,” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). In its frivolity review, the
Court must determine whether the Complaint raises an “indisputably meritless legal theory,”
Denton v. Hernandez, 504 U.S. 25, 32 (1992), or is founded upon clearly baseless factual
contentions, such as “fantastic or delusional scenarios,” Neitzke v. Williams, 490 U.S. 319, 32728 (1989).
III.

DISCUSSION

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“[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

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(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. See Hudson v. McMillian, 503 U.S. 1, 1 (1992). Because of his status as a pretrial
detainee, however, Plaintiff’s claim is evaluated under the Due Process Clause of the Fourteenth
Amendment rather than under the Eight Amendment standard applicable to convicted prisoners.
See Bell v. Wolfish, 441 U.S. 520, 535 (1979).
The Due Process Clause “protects a pretrial detainee from the use of excessive force that
amounts to punishment,” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), and is not “an
incident of some other legitimate governmental purpose,” Bell, 441 U.S. at 538. In Kingsley v.
Hendrickson, the Supreme Court held that the appropriate standard for a pretrial detainee's
excessive force claim is an objective one, requiring that a plaintiff must demonstrate “only that
the force purposely or knowingly used against him was objectively unreasonable.” 135 S.Ct.
2466, 2473 (2015). In determining whether the force was objectively unreasonable, a court
considers the evidence “from the perspective of a reasonable officer on the scene, including what
the officer knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490
U.S. at 396).
Plaintiff’s excessive use of force claim does not raise an “indisputably meritless legal
theory.” See Denton, 504 U.S. at 32. Nor is it based upon clearly baseless factual contentions,
such as “fantastic or delusional scenarios.” See Neitzke, 490 U.S. at 327-28. Accordingly,
Plaintiff’s Complaint survives initial review.
IT IS, THEREFORE, ORDERED that:
1. The Clerk of Court shall send a copy of this Order and blank summons form to
Plaintiff at his current address;

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2. Plaintiff shall complete and return the summons form to the Clerk of Court within
15 days of entrance of this Order; and
3. Using the summons provided by Plaintiff, the Clerk shall prepare process for
delivery and notify the United States Marshal who, pursuant to Fed. R. Civ. P.
4(c)(3), shall serve process upon the named Defendant.
SO ORDERED.
Signed: August 3, 2018

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