Allen v. Poole, et al

Filing 11

ORDER Pltf's allegations survive initial review as to Defts FNU Poole, Jeffery James, and FNU Schetter. See 28 U.S.C. §§ 1915(e); 1915A. re: 1 Complaint. Clerk of Court shall commence procedure for waiver of service as set forth in LR 4.3 for Defts FNU Poole, Jeffery James, and FNU Schetter, who are current or former employees of NCDPS. Signed by Chief Judge Frank D. Whitney on 8/22/2018. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-46-FDW
JOHNNIE D. ALLEN,

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

ORDER

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. 8).
I.

BACKGROUND

Pro se Plaintiff Johnnie D. Allen, a North Carolina inmate incarcerated at Maury
Correctional Institution in Maury, North Carolina, filed this action on February 22, 2018,
pursuant to 42 U.S.C. § 1983. Plaintiff has named the following three Defendants,
identified as employees at Marion Correctional Institution at all relevant times: (1) FNU
Poole, identified as a correctional officer at Marion; (2) Jeffery James, identified as a unit
manager at Marion; and (3) FNU Schetter, identified as a correctional officer at Marion.
Plaintiff alleges that on November 29, 2017, while Plaintiff was incarcerated at Marion,
Defendant Poole sprayed Plaintiff with mace without provocation, injuring Plaintiff, and
that Defendant James saw the incident and stood by and did nothing about it. Plaintiff
alleges that Defendant Schetter then retaliated against Plaintiff by taking some of his
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property from his cell and wrongly designating it as contraband. Plaintiff also alleges
that Defendant James assisted Schetter in keeping Plaintiff’s property. Plaintiff further
alleges that Defendants James and Schetter violated Plaintiff’s due process rights by
ignoring the fact that Plaintiff had mental health issues during various disciplinary
proceedings against Plaintiff. Although his allegations are not clear, it appears that
Plaintiff is purporting to bring an excessive force claim against Defendant Poole, a failure
to intervene claim against Defendant James, and a retaliation and due process claim
against Defendants Schetter and James.1 Plaintiff also purports to bring various state law
claims against Defendants. Plaintiff seeks injunctive relief and compensatory damages.
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 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

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Plaintiff also makes allegations about other conduct by persons not named as Defendants, and
about conduct that is not related to the excessive force incident.
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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).
III.

DISCUSSION

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 Plaintiff’s claims against Defendants FNU Poole, Jeffery James, and FNU Schetter.
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s allegations survive initial review as to Defendants FNU Poole, Jeffery James,
and FNU Schetter. See 28 U.S.C. §§ 1915(e); 1915A.
2. This Court recently enacted Local Rule 4.3, which sets forth a procedure to waive service
of process for current and former employees of the North Carolina Department of Public
Safety (“NCDPS”) in actions filed by North Carolina State prisoners. The Clerk of Court
shall commence the procedure for waiver of service as set forth in Local Rule 4.3 for
Defendants FNU Poole, Jeffery James, and FNU Schetter, who are current or former
employees of NCDPS.

3.

Signed: August 22, 2018

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