Jones v. Solomon et al

Filing 23

ORDER that the 21 Amended Complaint passes initial review on claims of unconstitutional conditions of confinement against Superintendent Ball, Buchanan, Carpenter, Carroll, Cooper, Doe, Guice, Lewis, Lowry, Perry, Reel, an d Solomon, for due process violations against Doe and Carroll, and Mull; and for retaliation against Superintendent Ball, Penland, Taylor, and Laughrun. Remaining claims are dismissed for failure to state a claim upon which relief can be granted purs uant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Motion for Preliminary Injunction that is incorporated in the Amended Complaint is DENIED. See Order for further details. Signed by Chief Judge Frank D. Whitney on 11/28/2018. (Pro se litigant served by US Mail.)(kby) Modified text on 11/29/2018 (kby).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-89-FDW
JORDAN ANDREW JONES,

)
)
Plaintiff,
)
)
vs.
)
)
GEORGE T. SOLOMON, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Amended Complaint,
(Doc. No. 21). He is proceeding in forma pauperis. See (Doc. No. 7).
I.

BACKGROUND

Pro se Plaintiff filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 with regards to
incidents that allegedly occurred at Avery-Mitchell and Lanesboro Correctional Institutions
between 2015 and 2016.1 (Doc. No. 1). The original Complaint passed initial review on several
claims and others were dismissed without prejudice. (Doc. No. 11). Plaintiff has now filed an
Amended Complaint that is before the Court for initial review. (Doc. No. 21).
Plaintiff names as Defendants: Department of Public Safety (“DPS”) Director George T.
Solomon; DPS Commissioner W. David Guice; DPS Secretary Frank L. Perry; DPS Inmate
Grievance Examiners FNU Williams, Elizabeth D. Wallace, Jasmine Belyeu, and Jonnita Baker;
DPS Western Regional Security Coordinator Jeffrey Daniels; DPS Disciplinary Hearing Officer
Randy S. Mull; and the following Avery-Mitchell C.I. employees: Superintendent Mike Ball

1

Plaintiff filed the Complaint when he was incarcerated at the Albemarle C.I. and his present address of
record is at the Craggy Correctional Center.

1

(“Superintendent Ball”); Assistant Superintendent for Programs Jason Penland; Assistant
Superintendent for Custody and Operations Gregory P. Taylor; Classification Coordinator Tim
Laughrun; Special Affairs Captain Brian Watson; Captain designated as Officer-in-Charge
Renee Reel; Unit Manager of Avery Unit Adrian Z. Crowe; Unit Manager of Wautaga Unit Bryan
Dale Johnson; Unit Manager of Yancey Unit FNU Cornett; Assistant Unit Manager of Avery
Unit James C. Waldroop; Assistant Unit Manager of Wautaga Unit Robin Hudgins; Assistant
Unit Manager of Yancey Unit Mark Randall Geouge; Correctional Sergeant for Avery Unit Bondy
Carroll; Correctional Officers for Avery Unit Tyler Stockton, FNU Banks, and FNU Ball
(“Officer Ball”); Correctional Officers for Restrictive Housing Unit FNU Cooper, FNU Lewis,
FNU Carpenter, FNU Lowry, and FNU Buchanan; and Captain or Lieutenant designated as
Officer-in-Charge John Doe.
Construing the Complaint liberally and accepting the allegations as true, Plaintiff was in
the Avery Unit of Avery-Mitchell C.I. on April 27, 2015, while Defendant Stockton was
conducting a routine cell search at around 12:00 PM. Plaintiff returned to his assigned bunk, picked
up a piece of candy from a chair, and put it in his mouth. Stockton abandoned his search and yelled
“Hey, Hey,” and seized Plaintiff “to ascertain whether the candy was contraband, based on some
unquantifiable belief.” (Doc. No. 21 at 10). Stockton blocked the aisle between bunks which
restrained Plaintiff’s freedom to walk away. Plaintiff turned to face Stockton and complied with
his every request. Stockton ordered Plaintiff to spit on the floor and open his mouth. Plaintiff
complied with each request promptly. Stockton seized Plaintiff by placing his hands on Plaintiff’s
shoulder, arms, and neck.
Stockton pushed on Plaintiff’s back as he descended a stairway causing Plaintiff’s balance
to become unstable, “endangering his safety and placing him at a substantial risk of serious harm.”
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(Doc. No. 21 at 10). Downstairs, Stockton violently opened a door and pushed Plaintiff’s back,
forcing him through it. The door ricocheted off the wall and “nearly” hit Plaintiff’s head. (Doc.
No. 21 at 10). Stockton led Plaintiff, unrestrained, to an officer duty station. Stockton placed his
hands on Plaintiff’s shoulders and forcefully turned Plaintiff to face him and ordered Plaintiff to
spit on the floor. Plaintiff again complied promptly without resisting or refusing. Stockton placed
his hands on Plaintiff’s shoulders and forcefully turned Plaintiff away from him, pushed Plaintiff
against a stack of chairs, and cuffed Plaintiff “overly tight” behind his back. (Doc. No. 21 at 11).
During this whole episode, Plaintiff was not in violation of any rule or policy, did not present a
threat to himself or others, and did not resist Stockton’s orders. Plaintiff was not physically injured
as a result of this encounter. (Doc. No. 21 at 10).
Stockton never called for assistance and was in complete control of the situation. He did
not attempt a “non-forcible method of extraction” as required by policy and the use of force was
not justified by the policy. (Doc. No. 1 at 11). Policy requires that, when force is used, reasonable
care must be taken to ensure inmates are not endangered by restraining them before removing them
from the cell/dorm and escorting them while restrained. Stockton repeatedly endangered Plaintiff
and did not restrain him until the conclusion of the use of force. Pursuant to policy, staff members
who use, witness, or are made aware of a use of force have to report the incident. Defendants
Carroll, Banks, and Officer Ball were present on Avery Unit and aware that Stockton used force
on Plaintiff. Defendant Doe was notified by Carroll that a unit incident occurred “directly
preceding the Use of Force” but each Defendant failed to respond reasonably. (Doc. No. 21 at 12).
Superintendent Ball and his designees including Doe, Crowe, and Carroll had a supervisory
obligation to make sure that staff receive proper training in the use of force. Neither a medical
examination for use of force nor a DC-387D via medical was completed as required by policy and
3

photographs were not taken of Plaintiff. Defendants Doe and Carroll had a duty to notify medical
of the use of force and failed to do so. Plaintiff had a life and liberty interest to be medically
examined for injuries related to a use of force and was denied that right.
Plaintiff was taken to restrictive housing and placed under close observation without due
process. Plaintiff had a liberty interest not to be unreasonably placed in Administrative Restrictive
Housing. This occurred because of the actions of Defendants Doe and Carroll. (Doc. No. 21 at 15).
Plaintiff received a basic medical exam for intake and did not receive urinalysis. (Doc. No. 21 at
12).
Plaintiff produced a bowel movement at around 2:00 PM under the supervision of
Defendants Cooper and Lewis. He was not given soap or hand sanitizer to wash his hands. At
around 4:00 PM, he was given a meal without being allowed to wash his hands first, and he was
not given utensils. At approximately 5:30 PM, he produced a bowel movement under the
supervision of Cooper and Carpenter. He was not given supplies to wash his hands. At
approximately 9:15 PM, he produced a bowel movement under Lowry and Buchanan’s
supervision. Lowry and Buchanan were uncertain about Close Observation Procedure so Reel
instructed them to make Plaintiff inspect his own feces. Plaintiff was cuffed in front and a bedpan
was placed in his cell. He asked for tissue paper to clean himself which was denied. Plaintiff was
handed a pair of wooden tongue depressors and ordered to inspect his feces. Plaintiff informed
Lowry and Buchanan of the procedures used during his first two bowel movements. They ignored
that information and again ordered him to make the inspection. Plaintiff complied because he was
afraid of incurring a C3 offense for willfully disobeying orders. Plaintiff inspected his feces with
the wooden tongue depressors without having been given protective equipment (goggles,
protective face mask, waterproof gloves) and was not given soap following the procedure. (Doc.
4

No. 21 at 17).
Pursuant to policy, Defendant Solomon and his designees including Defendants Guice,
Perry and Superintendent Ball, were obligated to maintain constitutional and humane conditions
of confinement by ensuring policy specifically governing close observation procedure provide
adequate arrangements for hygiene. No such policy exists. Superintendent Ball and his designees
including Defendants Doe and Reel had an obligation in their supervisory role to ensure that staff
receive proper and effective training on close observation procedure. (Doc. No. 21 at 18). Plaintiff
was required to be in a cell with his urine and feces on his hands for a prolonged period of time
where Doe, Reel, Cooper, Lewis, Carpenter, Lowry, and Buchanan failed to provide him with
basic elements of hygiene to wash his hands following each bowel movement, which disregarded
their duty and placed Plaintiff in excessive risk of harm to his future health. Policy requires staff
to provide equipment for inmates’ safety in the tasks they are required to perform. Defendants
Reel, Lowry and Buchanan failed to provide personal protective equipment necessary for handling
human waste. Defendant Buchanan omitted a duty required by policy by forcing Plaintiff to inspect
his own feces, disregarding an excessive risk to Plaintiff’s future health. Policy requires staff who
know of misconduct have a duty to report the incident.
Policy requires staff members who have knowledge of misconduct to report the incident.
Defendants Reel and Lowry were present on the restrictive housing unit and were aware when
Plaintiff was made to inspect his waste and neither responded reasonably. (Doc. No. 21 at 19).
After completing the inspection, Plaintiff was un-cuffed and given only tissue paper to clean
himself. The event was logged on the DC-141 (close observation log). (Doc. No. 21 at 19). The
inspections were declared contraband-free and an officer no longer monitored Plaintiff.
On April 27, 2015, at approximately 5:30 AM, Plaintiff’s water and plumbing fixtures were
5

activated. At approximately 8:00 PM, Plaintiff was given all-purpose cleaner and disinfectant.
Defendants Reel, Lowry and Buchanan failed to give Plaintiff the basic elements of sanitation to
clean his cell in a reasonable amount of time after the completion of close observation, at excessive
risk to his future health. Pursuant to policy, Defendants Solomon and his designees including
Defendants Guice, Perry, and Superintendent Ball, had an obligation to maintain constitutional
and humane conditions by ensuring policy specifically governing close observation procedure
provide adequate arrangements for sanitation in a reasonable time after an inmate is exposed to
human waste, but no such policy exists. (Doc. No. 21 at 19-20).
No contraband was found or produced by Plaintiff and he was released from restrictive
housing on April 30, 2015. (Doc. No. 21 at 12). That same day, Defendant Carroll informed
Plaintiff that he was under investigation for a B8 offense, i.e., leading Defendant Stockton away
from his search on April 27. Plaintiff requested physical evidence (video footage) and investigation
by an unbiased official. “Plaintiff’s final written entry reported Defendant Stockton’s Use of
Force.” (Doc. No. 21 at 13). On May 1, 2015, Defendant Crowe offered Plaintiff a plea to the
offense. Plaintiff appealed to the Disciplinary Hearing Officer. Crowe issued Plaintiff an Offense
Disciplinary Report that did not include Plaintiff’s reported use of force as required by policy.
On May 1, 2015, Plaintiff’s mother Denise Jones sent an email to Keith Acree reporting
events related to close observation. (Doc. No. 21 at 20).
On May 2, 2015, Defendant Reel requested a written statement from Plaintiff about the
April 27 close observation and Plaintiff wrote up a DC-138B. An incident report was conducted
under the order of Superintendent Ball. (Doc. No. 21 at 20).
On May 5, 2015, Plaintiff attended his disciplinary hearing before Defendant Mull.
Plaintiff entered a “plea of guilt” to the B8 offense. (Doc. No. 21 at 13). Plaintiff prepared a folder
6

of evidence to present in his defense which Defendant Mull was required by policy to give Plaintiff
an opportunity to present. (Doc. No. 21 at 27). Defendant Mull violated policy by ordering Plaintiff
to leave his folder outside the office and denied him the right to be heard. Defendant Mull issued
Plaintiff a Record of Hearing form detailing the offense and discipline. It did not include Plaintiff’s
reported use of force as required by policy. (Doc. No. 21 at 13). Policy requires that, when an
inmate reports a use of force, staff has a duty to respond reasonably by investigating. Defendants
Mull, Superintendent Ball, Doe, Crowe, and Carroll witnessed Plaintiff’s written report on the DC138B and failed to act on that information.
On May 11, 2015, Defendant Carroll requested a second written statement from Plaintiff
about the April 27 close observation and Plaintiff wrote up another DC-138B. (Doc. No. 21 at 20).
On May 13, 2015, Defendant Waldroop requested a written statement from Plaintiff
regarding the April 27, 2015, use of force. An incident report was conducted under the order of
Superintendent Ball. Plaintiff detailed the use of force on a DC-138B 16 days after the use of force.
(Doc. No. 21 at 14). This violated policy, which requires an incident report to be completed within
five working days. A DC-387D medical report was not completed for the incident report. Plaintiff
did not receive a medical examination during the investigation. Superintendent Ball, Doe, and
Waldroop had a duty to notify medical of a use of force and failed to reasonably respond.
Superintendent Ball and Defendant Doe failed to uphold their responsibility of investigating which
is required by policy of Officers-in-Charge.
On May 26, 2015, Plaintiff sent a letter to the North Carolina Department of Public Safety
main office requesting that video of the close observation be located and preserved. (Doc. No. 21
at 20). Plaintiff also submitted a grievance that day about the close observation. Jacob Hundley
signed and dated the grievance as “received” and forwarded it to the appropriate party. (Doc. No.
7

21 at 21). On May 27, 2015, Defendant Watson personally returned the grievance without the
official written reason for the rejected which violates policy. Defendant Watson unofficially
rejected the grievance, stating that an appropriate remedy had not been listed and that preservation
of a video recording could be requested from the Superintendent via an Inmate Request Form.
(Doc. No. 21 at 21). Defendant Watson failed to accept Plaintiff’s “pure grievance” which listed a
remedy appropriate per policy which deprived Plaintiff of a means to challenge unlawful conduct.
(Doc. No. 21 at 22).
Plaintiff submitted a grievance about the close observation on May 27, 2015. Merit was
found in Plaintiff’s allegations. (Doc. No. 21 at 20).
On June 3, 2015, Defendant Hudgins gave Plaintiff a green inmate copy of his grievance
outside the prescribed time limit which obstructed Plaintiff’s Administrative Remedy Procedure.
On June 15, 2015, Plaintiff received a Step One response to his grievance from Defendant
Johnson and Plaintiff appealed to Step Two. On July 7, 2015, Plaintiff received a Step Two
response from Defendant Penland and Plaintiff appealed to Step Three. Defendants Penland,
Johnson, and Hudgins failed to provide Plaintiff responses within the time limit which obstructed
Plaintiff’s Administrative Remedy Procedure. Defendants Penland, Johnson, and Hudgins failed
to provide Plaintiff with written notice of an extension as required by policy which inhibited
Plaintiff’s Administrative Remedy Procedure.
Inmate Connor O’Neill had a conversation with Defendant Buchanan on June 22, 2015,
and completed an affidavit.
On July 10, 2015, Plaintiff’s grievance regarding the use of force was accepted. On July
13, 2015, Plaintiff received a Step One response from Defendant Johnson, stating “Defendant
Stockton has been Counseled and Corrective action taken.” (Doc. No. 21 at 22). Plaintiff appealed
8

to Step Two. On August 5, 2016, Plaintiff received a Step Two response from Defendant Penland
and Plaintiff appealed to Step Three. Plaintiff discovered that the tracking number did not correlate
to the accepted grievance. Plaintiff believes that Defendant Hudgins administered the tracking
number.
On August 6, 2015, Plaintiff presented additional facts related to the close observation on
a grievance but it was rejected because it exceeded the 90-day time limit. (Doc. No. 21 at 21).
On August 6, 2015, Plaintiff presented facts related to his disciplinary hearing in a
grievance. It was rejected because it exceeded the 90-day time limit. (Doc. No. 21 at 24).
Defendants Penland, Johnson, and Hudgins failed to complete Plaintiff’s previously-submitted
grievance within the time limit, causing Plaintiff to miss the deadlines for new grievance
submission, which deprived him of a means to challenge unlawful conduct.
On August 7, 2015, Plaintiff’s grievance regarding due process (delayed distribution of
inmate grievance copy) was accepted and corrective action was said to have been taken. (Doc. No.
21 at 28).
On August 25, 2015, Plaintiff received a Step One response to his grievance from
Defendant Johnson. Plaintiff appealed to Step Two. (Doc. No. 21 at 31). Defendants Johnson and
Hudgins failed to provide Plaintiff’s response within the prescribed time limit and failed to provide
Plaintiff a written notice of extension as required by policy, which obstructed and inhibited
Plaintiff’s Administrative Remedy Procedure. On October 19, Plaintiff sent a letter to the
Grievance Resolution Board. The Step Three Response dated October 20, 2015, was received by
Plaintiff on November 3, 2015. On November 10, 2015, Plaintiff’s grievance about due process
(“Being void of indications,”) was accepted. (Doc. No. 21 at 32). On November 19, 2015, Plaintiff
sent a letter and relevant documents to Defendant Perry.
9

On September 20, 2015, Plaintiff sent a letter to Defendant Taylor. (Doc. No. 21 at 28).
On October 9, 2015, Plaintiff’s grievance about denial of access to the courts was accepted.
(Doc. No. 21 at 23, 24). Plaintiff sent a letter and relevant documents to the Grievance Resolution
Board on October 14, 2015. Plaintiff sent a letter to Defendant Penland on October 30, 2015.
Plaintiff sent letters to Defendants Taylor and Perry on November 4, 2015. Plaintiff sent a letter to
the Grievance Resolution Board on December 30, 2015. Plaintiff received letters dated December
31, 2015, and March 21, 2016, from Ina Hinton. Plaintiff sent Hinton relevant documents and a
letter on January 14, 2016. Plaintiff received a Step Three Response dated February 8, 2016, from
Defendant Williams. Plaintiff discovered that the tracking number did not correlate with the
accepted grievance. Defendant Solomon and “each staff member” who participated in Plaintiff’s
Administrative Remedy Procedure including Defendants Perry, Williams, Penland, Johnson, and
Hudgins had an obligation to provide grievance responses correlating to Plaintiff’s accepted
grievances and failed to do so, which deprived him of a means to challenge unlawful conduct.
(Doc. No. 21 at 24).
On October 8, 2015, Plaintiff’s grievance about due process (obstructions) was accepted.
(Doc. No. 21 at 30). Defendants Solomon, Perry, and Williams failed to provide Plaintiff’s
response within the prescribed time limit and failed to provide him a written notice of extension
as required by policy, which obstructed and inhibited Plaintiff’s Administrative Remedy
Procedure. Defendant Solomon and each staff member who participated in Plaintiff’s
Administrative Remedy Procedure, including Defendants Perry, Williams, Penland, Johnson, and
Hudgins, were obligated to complete grievance exhaustion within the prescribed time limit and
failed to do so which obstructed Plaintiff’s Administrative Remedy Procedure. Upon reviewing
the green inmate copy of his grievance, Plaintiff discovered that it had no date, signature, or
10

indication of acceptance or rejection, which violates policy. Defendants Johnson and Hudgins
failed to provide Plaintiff a copy of the grievance which inhibited Plaintiff’s Administrative
Remedy Procedure.
On October 15, 2015, Plaintiff was transferred from Avery-Mitchell C.I. to Lanesboro C.I.
and was assigned to a Vocational Program. (Doc. No. 21 at 25). Plaintiff did not request the
transfer. Plaintiff filed several grievances prior to being transferred and requested no reprisal such
as transfer as a result of his Administrative Remedy Procedure. Plaintiff reported threats of transfer
made by Avery-Mitchell correctional officials prior to October 15, 201. Multiple officials also
“implied a transfer in response to Plaintiff’s Administrative Remedy Procedure. (Doc. No. 21 at
25). Lanesboro C.I. is widely known to be more dangerous than Avery-Mitchell, with the
reputation of “the worst prison in North Carolina.” (Doc. No. 21 at 25). Superintendent Ball and
Defendants Penland, Taylor, and Laughrun were in control of Plaintiff’s classification and
transferred him in violation of policy and for exercising his rights through grievances. Plaintiff’s
mother reported the transfer to Todd Pinion on October 19, 2015, and Plaintiff as transferred back
to Avery-Mitchell on October 27, 2015. Plaintiff sent a letter to Superintendent Ball and Defendant
Taylor on October 28 and 30, 2015. On November 23, 2015, Plaintiff’s grievance regarding the
retaliatory transfer was accepted. (Doc. No. 21 at 26).
On October 18, 2015, Plaintiff sent a letter to the Grievance Resolution Board. Plaintiff
received a Step Three grievance response from Defendant Wallace dated September 30, 2015, was
received by Plaintiff on October 21, 2015. Defendants Solomon, Perry, and Wallace failed to
provide Plaintiff’s response within the prescribed time limit which obstructed his Administrative
Remedy Procedure. (Doc. No. 21 at 29). Defendants Solomon, Perry, and Wallace failed to provide
Plaintiff with written notice of an extension as required by policy which inhibited his
11

Administrative Remedy Procedure. Defendant Solomon and each staff member who participated
in Plaintiff’s Administrative Remedy Procedure including Defendants Perry, Wallace, Penland,
Johnson, and Hudgins had an obligation to complete grievance exhaustion within the prescribed
time limit and their failure to do so obstructed his Administrative Remedy Procedure.
On October 21, 2015, Plaintiff sent a “Motion to Locate and Preserve Evidence” regarding
video recordings of the use of force, to Defendant Perry and Superintendent Ball. (Doc. No. 21 at
14, 20).
On October 29, 2015, Plaintiff received a Step One response to his grievance from
Defendant Johnson and he appealed to Step Two. (Doc. No. 21 at 32). Defendants Johnson and
Hudgins failed to provide Plaintiff’s response within the prescribed time limit and failed to provide
a written notice of extension as required by policy, which obstructed and inhibited Plaintiff’s
Administrative Remedy Procedure. On November 19, 2015, Plaintiff received a Step Two
response from Defendant Penland and Plaintiff appealed to Step Three. (Doc. No. 21 at 32). The
Step Three response was dated March 15, 2016 from Defendant Belyeu and it was received by
Plaintiff on April 5, 2016. (Doc. No. 21 at 33). Defendants Solomon, Perry, and Belyeu failed to
provide Plaintiff’s response within the prescribed time limit and failed to provide him with a
written notice of extension as required by policy, which obstructed and inhibited his
Administrative Remedy Procedure. Defendant Solomon and each staff member who participated
in Plaintiff’s Administrative Remedy Procedure including Defendants Perry and Belyeu had an
obligation to complete grievance exhaustion within the prescribed time limit and failed to do so,
which obstructed Plaintiff’s Administrative Remedy Procedure.
On November 30, 2015, Plaintiff received a Step One response from Defendant Geouge
and Plaintiff appealed to Step Two. (Doc. No. 21 at 33). On December 8, 2015, Plaintiff received
12

a Step Two response from Defendant Penland. Upon reviewing the response, Plaintiff discovered
that an answer was provided at the facility by Defendant Penland which is contrary to policy
because he was allegedly involved in the incident. (Doc. No. 21 at 34). Defendant Penland failed
to recuse himself which compromised the procedure. Yancy Unit Management including
Defendants Cornett and Geouge had a duty to forward Plaintiff’s grievance to an appropriate party
and failed to do so which compromised Plaintiff’s Administrative Remedy Procedure. On
December 8, 2015, Plaintiff sent letters to Defendant Perry and Todd Pinion. On January 15,
Plaintiff’s grievance about due process (failure to recuse) was accepted and fault was admitted. On
January 11, 2016, Plaintiff received a Step Two response from Defendant Penland and Plaintiff
appealed to Step Three. Plaintiff received the Step Three response dated April 1 from Defendant
Baker, which Plaintiff received on April 12, 2016. (Doc. No. 21 at 35). Defendants Solomon,
Perry, and Baker failed to provide Plaintiff’s response within the prescribed time limit and failed
to provide him with written notice of extension as required by policy, which obstructed and
inhibited his Administrative Remedy Procedure. Defendant Solomon and each staff member who
participated in Plaintiff’s Administrative Remedy Procedure, including Defendants Perry and
Baker, had an obligation to complete grievance exhaustion within the prescribed time limit and
failed to do so, obstructing Plaintiff’s Administrative Remedy Procedure.
On December 31, 2015, Plaintiff’s grievance about due process (obstructions) was
accepted. Defendants Penland, Johnson, and Hudgins failed to provide Plaintiff’s response within
the prescribed time limit and failed to provide written notice of an extension as required by policy
which obstructed and inhibited Plaintiff’s Administrative Remedy Procedure.
On January 4, 2016, Defendant Daniels was dispatched by Western Regional Director
Todd Pinion to discuss Plaintiff’s multiple claims against Avery-Mitchell C.I. staff. Plaintiff sent
13

letters to Pinion on January 5, 2016, and received a letter dated January 11, 2016, from Defendant
Daniels. Plaintiff sent a letter to Daniels on January 16, 2016, and received letters from him dated
January 19 and 26, 2016.
On January 15, 2016, Plaintiff received a Step One grievance response from Defendant
Waldrop and Plaintiff appealed to Step Two. (Doc. No. 21 at 35). On January 15, 2016, Plaintiff
received a Step Two response from Pinion and he appealed to Step Three. Plaintiff received the
Step Three response from Defendant Baker dated April 1, 2016, on April 12, 2016. (Doc. No. 21
at 35). Defendants Solomon, Perry, and Baker failed to provide Plaintiff’s response within the
prescribed time limit and failed to provide written notice of extension as required by policy, which
obstructed and inhibited his Administrative Remedy Procedure. (Doc. No. 21 at 36).
Defendant Buchanan violated policy by disclosing information about Plaintiff to another
inmate, including details about Plaintiff’s conduct while being exposed to unconstitutional
conditions of confinement including Plaintiff’s observation, custody, and future transfer. (Doc.
No. 21 at 26). Defendant Buchanan accused Plaintiff of reporting staff misconduct which portrayed
him as a “snitch” and placed him at risk of being attacked by another inmate. Inmate Donald
Hodges discussed Plaintiff with Defendants Watson and Daniels on January 7, 2016, and
completed an affidavit. (Doc. No. 21 at 27). Defendants Daniels and Watson disclosed Plaintiff’s
legal proceedings about staff misconduct to another inmate and stated that Plaintiff is a “nuisance
to staff at Avery-Mitchell.” (Doc. No. 21 at 27). This portrayed Plaintiff as a “snitch” and placed
him at risk of being attacked by another inmate. (Id.).
Plaintiff seeks declaratory judgment, preliminary and permanent injunction, compensatory
and punitive damages, costs, fees, a jury trial, and any additional relief the Court deems just,
proper, and equitable.
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II.

PRELIMINARY INJUNCTION

A preliminary injunction is an extraordinary remedy afforded before trial at the discretion
of the district court. Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). It is an extraordinary
remedy that is never awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24
(2008). 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). “[C]ourts of equity should pay particular regard
for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555
U.S. at 24. 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. Id. at 20; Di Biase v. SPX Corp., 872 F.3d 224, 229 (4th Cir. 2017).
The Amended Complaint includes a claim for preliminary injunctive relief. Reviewing
Plaintiff’s allegations based on the relevant factors, Plaintiff is not entitled to a preliminary
injunction. Plaintiff fails to explain how he is being irreparably harmed during the pendency of
the instant action, especially in light of the fact that he no longer resides at either of the institutions
addressed in the Amended Complaint, and he fails to show that he is likely to prevail. Plaintiff
simply has not shown that he is entitled to a temporary restraining order or a preliminary injunction
under these circumstances and the motion incorporated in the Amended Complaint will therefore
be denied.
III.

STANDARD OF REVIEW

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
15

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
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
16

Id.
IV.
(1)

DISCUSSION

Individuals Not Named as Defendants
The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action

shall include the names of all the parties.” Fed. R. Civ. P. 10(a); see Myles v. United States, 416
F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption
and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings
liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel
or paralegal to pro se litigants,” Pliler v. Ford, 542 U.S. 225 (2004). The Rules require a short and
plain statement of the claims. Fed. R. Civ. P. 8(a)(2). Conclusory allegations, unsupported by
specific allegations of material fact are not sufficient. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir.
1990). A pleader must allege facts, directly or indirectly, that support each element of the claim.
Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002).
The body of the Complaint refers to several individuals who are not named as defendants
in the caption as required by Rule 10(a). This failure renders Plaintiff’s allegations against them
nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999)
(granting motion to dismiss for individuals who were not named as defendants in the compliant
but who were served). Therefore, the Amended Complaint is dismissed as to individuals who are
not formally named as defendants.
(2)

Cruel and Unusual Punishment
The Eighth Amendment prohibits punishments that “involve the unnecessary and wanton

infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). “It not only outlaws excessive sentences but also protects inmates from
17

inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996). The Constitution “does not mandate comfortable prisons, … but neither does it
permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)). Thus, prison official must provide sentenced prisoners with
adequate food, clothing, shelter, and medical care, and “take reasonable measures to guarantee
the[ir] safety….” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see Farmer, 511 U.S. at 83234.
(a) Excessive Force
In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places
restraints on prison officials who may not use excessive physical force against prisoners. See
Hudson, 503 U.S. at 1. 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, 452 U.S. at 347. The
second requirement is 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.
“[T]he use of excessive physical force against a prisoner may constitute cruel and unusual
punishment [even] when the inmate does not suffer serious injury.” Hudson, 503 U.S. 1, 4 (1992);
see Wilkins v. Gaddy, 559 U.S. 34, 34 (2010). The “core judicial inquiry,” is not whether a certain
quantum of injury was sustained, but rather “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at
7. “When prison officials maliciously and sadistically use force to cause harm,” the Court
recognized, “contemporary standards of decency always are violated ... whether or not significant
18

injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Hudson,
503 U.S. at 9, 13–14.
The Fourth Circuit addresses a failure to intervene claim as a theory of “bystander liability”
wherein there is “an omission to act...coupled with a duty to act.” Randall v. Prince George’s Cnty.,
302 F.3d 188, 202 (4th Cir. 2002). A “bystander officer” could be liable for his or her nonfeasance
if he or she: “(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.” Id. at 204. However,
if no excessive force is applied by the fellow officer, the officer witnessing the conduct “cannot be
held liable under bystander liability for a failure to intervene.” Howie v. Prince George’s Cnty.,
2009 WL 2426018 at *6 (D. Md. Aug. 5, 2009); see also Jarvis v. Securitas Sec. Servs. USA, 2012
WL 527597 (D. Md. Feb. 16, 2012).
Plaintiff alleges that Defendant Stockton saw him put something in his mouth during a cell
search, seized him, ordered him to spit, pushed him down a stairway, guided him through a
doorway that nearly hit his head, brought him to an office, and eventually handcuffed him. Plaintiff
admits that none of Stockton’s actions resulted in any injury. Plaintiff contends that Defendant
Stockton’s use of force was unreasonable, unnecessary, outside the measure of good faith, beyond
any penological need, and posed a substantial risk of serious harm.
Despite Plaintiff’s conclusory allegations of impropriety, nothing about Defendant
Stockton’s alleged actions was malicious or sadistic, but rather, a good-faith effort to maintain or
restore discipline by attempting to identify and seize contraband. Plaintiff has failed to state a
plausible excessive force claim and it will be dismissed.

19

Because Plaintiff has failed to state an excessive force claim against Defendant Stockton,
the related claims about failing to adequately document, investigate, supervise and train, provide
medical care, or provide remedial measures with regards to the alleged use of force also necessarily
fail to state a claim and will be dismissed. See generally Jackson v. Sampson, 536 Fed. Appx. 356,
357 (4th Cir. 2013) (unpublished) (“prison officials’ failure to follow internal prison policies are
not actionable under § 1983 unless the alleged breach of policy rises to the level of constitutional
violation”); Waybright v. Frederick Co, Md., 528 F.3d 199, 203 (4th Cir. 2008) (“supervisors and
municipalities cannot be liable under § 1983 without some predicate ‘constitutional injury at the
hands of the individual [state] officer,’ at least in suits for damages.”).
(b) Medical Deliberate Indifference
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.
Plaintiff contends that he was not medically examined after the April 27, 2015, use of force
incident with Stockton, or during the investigation of that incident in violation of DPS rules and
20

regulations. Plaintiff admits that he was not injured in the April 27 incident and therefore fails to
show that he had any serious medical need. Nor can Defendants’ failure to provide medical care
for non-existent injuries rise to the level of deliberate indifference. Therefore, Plaintiff’s medical
deliberate indifference claim is insufficient to proceed and will be dismissed.
(c) Conditions of Confinement
To establish a violation of the Eighth Amendment in the context of a challenge to
conditions of confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an
objective standard and (2) that prison officials acted with “deliberate indifference” to the inmate’s
health and safety under a subjective standard. Wilson, 501 U.S. at 297-99. A sufficiently serious
deprivation occurs when “a prison official’s act or omission ... result[s] in the denial of the minimal
civilized measure of life’s necessities.” Id. at 298 (citing Rhodes, 452 U.S. at 347).
Deprivation of basic sanitary conditions such as exposure to human waste without the
ability to clean oneself can constitute an Eighth Amendment violation. See, e.g., Hope v. Pelzer,
536 U.S. 730, 738 (2002) (deprivation of bathroom breaks for prisoner attached to a hitching post
for seven hours created a “risk of particular discomfort and humiliation”); Budd v. Motley, 711
F.3d 840, 843 (7th Cir. 2013) (“allegations of unhygienic conditions, when combined with the jail’s
failure to provide detainees with a way to clean for themselves with running water or other
supplies, state a claim for relief.”); DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.2001)
(“Exposure to human waste, like few other conditions of confinement, evokes both the health
concerns emphasized in Farmer and the more general standards of dignity embodied in the Eighth
Amendment.”); Young v. Quinlan, 960 F.2d 351, 365 (3d Cir.1992) (“It would be an abomination
of the Constitution to force a prisoner to live in his own excrement for four days....”), superseded
by statute on other grounds as recognized by Nyhuis v. Reno, 204 F.3d 65, 71 n. 7 (3d Cir .2000);
21

Howard v. Adkison, 887 F.2d 134, 137 (8th Cir.1989) (noting that “inmates are entitled to
reasonably adequate sanitation” and finding Eighth Amendment violation where cell was “covered
with ... human waste”); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir.1972) (“Causing a man
to live, eat and perhaps sleep in close confines with his own human waste is too debasing and
degrading to be permitted.”).
Plaintiff alleges that, on April 27, 2015, he was placed in “close observation” by
Defendants Doe and Carroll where he experienced unsanitary conditions including exposure to
human waste. Defendants Doe, Reel, Cooper, Lewis, Carpenter, Lowry, and Buchanan deprived
Plaintiff of hygienic materials. Defendants Reel, Lowry, and Buchanan failed to provide personal
protection equipment for handling human waste. Defendant Buchanan subjected him to conditions
posing a substantial risk of serious harm by forcing him to inspect his own feces. Defendants
Solomon, Guice, Perry, and Superintendent Ball failed to create a policy adequately addressing
hygiene and sanitation during close observation, and that Superintendent Ball and Defendants Doe,
and Reel failed to adequately train and supervise their subordinate staff in close observation, which
is an area critical to ensuring prisoner health. Defendants Reel and Lowry consented to
unconstitutional behavior of subordinates.
Although Plaintiff does not allege that he was actually harmed by the incident, he has
sufficiently alleged a substantial risk of serious harm because the health risks of prolonged
exposure to human excrement are obvious. See DeSpain, 264 F.3d at 974–75 (finding substantial
risk of serious harm where prisoner was exposed to standing water in his cell that contained his
own urine and other prisoners’ waste for 36 hours). Plaintiff further alleges that his rights were
violated because several supervisory Defendants failed to sufficiently train and supervise their staff
and establish policy to ensure such violations do not occur. The supervisory claims will be
22

permitted to proceed.
Plaintiff’s claim that he was exposed to unconstitutional conditions of confinement will
therefore be permitted to proceed against Defendants Superintendent Ball, Buchanan,
Carpenter, Carroll, Cooper, Doe, Guice, Lewis, Lowry, Perry, Reel, and Solomon.
(d) Failure to Protect
The Eighth Amendment imposes a duty on prison officials to “protect prisoners from
violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal quotations omitted).
To obtain relief under § 1983 on a claim of failure to protect, an inmate must show: (1) “serious
or significant physical or emotional injury” resulting from that failure; and (2) the prison officials
had a “sufficiently culpable state of mind,” which in this context is deliberate indifference. Farmer,
511 U.S. at 834. A prison official is “deliberately indifferent to a substantial risk of harm to a
[prisoner] when that [official] ‘knows and disregards’ the risk.” Parrish ex rel. Lee v. Cleveland,
372 F.3d 294, 302 (4th Cir. 2004) (quoting Farmer, 511 U.S. at 837). “It is not enough to prove
that the official should have known of the risk; instead, ‘the official must both be aware of the facts
from which the inference could be drawn that a substantial risk of harm exists, and he should draw
the inference.’” Kartman v. Markle, 582 Fed. Appx. 151, 153 (2014) (quoting Farmer, 511 U.S. at
837). A showing of negligence does not rise to the level of deliberate indifference. Davidson v.
Cannon, 474 U.S. 344, 347-48 (1986).
Plaintiff claims that Defendants Daniels, Watson, and Buchanan disclosed information
about him that “may” lead another inmate to attack him. (Doc. No. 21 at 40). Defendant Buchanan
allegedly violated policy by telling another inmate about Plaintiff’s conduct while he was on close
observation, and Defendants Watson and Daniels allegedly disclosed Plaintiff’s legal proceedings
about staff misconduct and called him a “nuisance.” (Doc. No. 21 at 27). This allegedly portrayed
23

Plaintiff as a snitch and placed him at risk of being attacked by another inmate.
Plaintiff has failed to allege either that he sustained significant physical or emotional injury
because of any Defendant’s actions, or that any Defendant had a sufficiently culpable state of mind
or was anything more than negligent. Therefore, this claim will be dismissed.
(3)

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.
(a) Grievances
“[T]he Constitution creates no entitlement to grievance procedures or access to any such
procedure voluntarily established by a state.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Plaintiff alleges that various grievances were rejected, returned, mishandled, delayed, and
denied by Defendants Solomon, Perry, Williams, Wallace, Belyeu, Baker, Penland, Taylor,
Johnson, Cornett, Hudgins, and Geouge. He claims that there is a longstanding pattern of ignoring
and neglecting due process with regards to the Administrative Remedy Procedure.
Because Plaintiff has no federal constitutional right to engage in the prison grievance
procedure, any alleged violation of that procedure cannot constitute a due process violation.
Therefore, Plaintiff’s due process claim with regards to his prison grievances will be dismissed.
(b) Classification & Housing
A prisoner does not have a federally protected liberty interest in any particular housing or
classification unless it exceeds the scope of his original sentence and imposes an atypical and
significant hardship in relation to the ordinary incidents of prison life. See Sandin v. Conner, 515
U.S. 472 (1995). “[C]hanges in a prisoner’s location, variations of daily routine, changes in
conditions of confinement (including administrative segregation) and the denial of privileges …
24

are necessarily functions of prison management that must be left to the broad discretion of prison
administrators to enable them to manage prisons safely and efficiently.” Gaston v. Taylor, 946
F.2d 340, 343 (4th Cir. 1991) (en banc).
Plaintiff appears to allege that Defendants Doe and Carroll placed him in Administrative
Restrictive Housing without due process. Plaintiff has sufficiently alleged that the conditions he
experienced on Administrative Restrictive Housing constituted atypical and significant hardship.
Therefore, this claim will be allowed to proceed against Defendants Doe and Carroll.
(c) Disciplinary Proceedings
Prison disciplinary proceedings are not part of a criminal prosecution and the full array of
rights due a defendant in such proceedings does not apply. See Wolff v. McDonnell, 418 U.S.
539, 556 (1974) (citing Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). In prison disciplinary
proceedings where an inmate faces the possible loss of diminution credits or solitary confinement,
he is entitled to certain due process protections. These include: (1) advance written notice of the
charges against him; (2) a written statement of the evidence relied on and the reasons for taking
any disciplinary action; (3) a hearing where he is afforded the right to call witnesses and present
evidence when doing so is not inconsistent with institutional safety and correctional concerns, and
a written decision; (4) the opportunity to have non-attorney representation when the inmate is
illiterate or the disciplinary hearing involves complex issues; and (5) an impartial decision-maker.
See Wolff, 418 U.S. at 564-71. There is no constitutional right to confront and cross-examine
witnesses or to retain and be appointed counsel. See Baxter v. Palmigiano, 425 U.S. 308, 322
(1976); Brown v. Braxton, 373 F.3d 501, 505-06 (4th Cir. 2004). As long as the hearing officer’s
decision contains a written statement of the evidence relied upon, due process is satisfied. See
Baxter, 425 U.S. at 323 n.5. Moreover, substantive due process is satisfied if the disciplinary
25

hearing decision was based upon “some evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472
U.S. 445, 455 (1985). Federal courts do not review the correctness of a disciplinary hearing
officer’s findings of fact. See Kelly v. Cooper, 502 F. Supp. 1371, 1376 (E.D. Va. 1980). The
findings will only be disturbed when unsupported by any evidence or when wholly arbitrary and
capricious. See Hill, 472 U.S. at 456; see also Baker v. Lyles, 904 F.2d 925, 933 (4th Cir. 1990).
As long as there is some evidence in the record to support a disciplinary committee’s factual
findings, a federal court will not review their accuracy.
Plaintiff alleges that Defendant Mull did not provide him with the opportunity to present
evidence at the disciplinary hearing relating to the April 27 incident. Plaintiff’s claim that
Defendant Mull refused to allow him to present evidence in defense of the disciplinary charge is
sufficient to proceed. Therefore, the claim that Plaintiff was deprived of due process in the
disciplinary proceedings will be permitted to proceed against Defendant Mull.
(d) Use of Force Investigation/Report
“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 Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989); 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 complains that various Defendants failed to submit written use of force wrote useof-force reports, take Plaintiff for a medical examination, investigate the incident, or collect
evidence as required by DPS policy.
26

Plaintiff’s claim for failure to investigate the incident and collect evidence it is insufficient
to proceed because Plaintiff had no constitutional right to an investigation. Because Plaintiff had
no right to an investigation or report on the alleged use of force, Defendants did not violate his
rights by failing to adequately do so and this claim is dismissed.
(e) Access to Courts
Inmates have a constitutional right to a “reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts” which a state may not abridge
or impair. Bounds v. Smith, 430 U.S. 817, 821 (1977); Hudspeth v. Figgins, 584 F.2d 1345, 1347
(4th Cir. 1978). To make out a case of denial of access to the courts, the inmate cannot rely on
conclusory allegations; instead, he must identify with specificity an actual injury resulting from
official conduct. Cochran v. Morris, 73 F.3d 1310, 1316 (4th Cir. 1996). The injury requirement is
not satisfied by any type of frustrated legal claim; the prisoner must demonstrate that his
nonfrivolous post-conviction or civil rights legal claim has been frustrated or impeded. See Lewis
v. Casey, 518 U.S. 343, 353 (1996). “Impairment of any other litigating capacity is simply one of
the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Casey,
518 U.S. at 355.
Plaintiff alleges that Defendants Solomon, Perry, Williams, Penland, Watson, Johnson, and
Hudgins infringed on Plaintiff’s substantive rights by obstructing his Administrative Remedy
Procedure which deprived him of a means to challenge unlawful conduct.
Plaintiff has failed to state a claim for the denial of access to the courts because prison
grievances, rather than non-frivolous post-conviction or civil rights legal claims, were allegedly
frustrated or impeded by Defendants’ actions. Plaintiff’s attempt to recharacterize his grievance-

27

based claim as one of denial of access to the courts is rejected. See Claim (3)(a), supra. Plaintiff’s
claim that he was deprived of access to the courts is therefore insufficient to proceed and will be
dismissed.
(3)

Retaliation
Prison officials may not retaliate against an inmate for exercising a constitutional right. See

Hudspeth, 584 F.2d at 1347. To succeed on such a 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 Civil Libs. Un. of Md., Inc. v. Wicomico
Cnty., 999 F.2d 780, 785 (4th Cir. 1993) (citing Huang v. Board 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.
As a general matter, a criminal defendant has no basis for complaint when he is transferred
from one institution to another; the fact that life in one prison might be more disagreeable than in
another is alone insufficient to warrant due process protections. Meachum v. Fano, 427 U.S. 215
28

(1976); see Montanye v. Haymes, 427 U.S. 236 (1976) (the due process clause does not require
hearings in connection with transfers, whether or not they are the result of the inmate’s misbehavior
or may be labeled as disciplinary or punitive). However, transfers may be judicially challenged
when they are retaliatory or are used as a means of punishing the exercise of constitutional
freedoms. See Montanye, 427 U.S. at 242. To successfully argue retaliatory transfer in violation
of his constitutional rights pursuant to § 1983, a plaintiff “must prove that a desire to retaliate was
the actual motivating factor behind the transfer.” Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir.1996).
In other words, the plaintiff must prove that but for his protected First Amendment activity, he
would not have been transferred. Rouse v. Benson, 193 F.3d 936, 940 (8th Cir. 1999).
Plaintiff alleges that Defendants Superintendent Ball, Penland, Taylor and Laughrun
transferred him to Lanesboro C.I., which is known for being dangerous, for exercising his
Administrative Remedy Procedure. Plaintiff has stated a plausible claim for retaliation against
Defendants Superintendent Ball, Penland, Taylor and Laughrun and the retaliation claim will
be permitted to proceed.
(4)

Search & Seizure
The Fourth Amendment protects “[t]he right of the people to be secure in their persons ...

against unreasonable searches and seizures.” U.S. Const. Amend. IV. The applicability of the
Fourth Amendment turns on whether “the person invoking its protection can claim a ‘justifiable,’
a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government
action.” Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442 U.S. 735,
740 (1979)). While “imprisonment carries with it the circumscription or loss of many significant
rights,” the Supreme Court nevertheless cautioned that “prisons are not beyond the reach of the

29

Constitution.” Id. at 523–24. A prisoner thus retains “some legitimate expectation of privacy in his
person” under the Fourth Amendment. See King v. Rubenstein, 825 F.3d 206, 214–15 (4th Cir.
2016); see also United States v. Edwards, 666 F.3d 877, 883 (4th Cir. 2011) (the Supreme Court
has “developed a flexible test to determine the reasonableness of a broad range of sexually invasive
searches....”) (citation and internal quotation marks omitted). The following factors determine the
reasonableness of the search: “the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish,
441 U.S. 520, 559 (1979). Searches conducted “in an abusive fashion … cannot be condoned.”
Wolfish, 441 U.S. at 560. The deference afforded to prison administrators “does not insulate from
review actions taken in bad faith and for no legitimate purpose.” Williams v. Benjamin, 77 F.3d
756, 765 (4th Cir. 1996) (quoting Whitley v. Albers, 475 U.S. 312, 322 (1986)). However, society
does not “recognize as legitimate any subjective expectation of privacy that a prisoner might have
in his prison cell and …, accordingly, the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell.” Hudson, 468 U.S. at 525.
Plaintiff appears to allege that Defendant Stockton illegally searched and/or seized him on
April 27, 2015. Plaintiff alleges that Defendant Stockton was searching a cell when Plaintiff took
a piece of candy from a chair and put it in his mouth. Stockton seized Plaintiff and made him spit
to ascertain whether the candy was contraband. Plaintiff conclusively states that Defendant
Stockton employed unreasonable and unnecessary force against him that was outside the measure
of good faith and beyond any penological need.
Plaintiff’s description of Defendant Stockton’s alleged actions does not show abuse,
excessiveness, bad faith, or lack of penological justification. He has therefore fails to state a
plausible Fourth Amendment claim and it will be dismissed.
30

V.

CONCLUSION

Plaintiff has stated plausible claims for unconstitutional conditions of confinement against
Superintendent Ball, Buchanan, Carpenter, Carroll, Cooper, Doe, Guice, Lewis, Lowery, Perry,
Reel, and Solomon for due process violations against Doe and Carroll (administrative housing)
and Mull (disciplinary proceedings); and for retaliation against Superintendent Ball, Penland,
Taylor, and Laughrun. The remaining claims dismissed for failure to state a claim upon which
relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Motion for Preliminary
Injunction that is incorporated in the Amended Complaint is denied.
IT IS, THEREFORE, ORDERED that:
1.

The Amended Complaint passes initial review on claims of unconstitutional
conditions of confinement against Superintendent Ball, Buchanan, Carpenter,
Carroll, Cooper, Doe, Guice, Lewis, Lowry, Perry, Reel, and Solomon, for due
process violations against Doe and Carroll (administrative housing), and Mull
(disciplinary proceedings); and for retaliation against Superintendent Ball,
Penland, Taylor, and Laughrun.

2.

The remaining claims are dismissed for failure to state a claim upon which relief
can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

3.

The Motion for Preliminary Injunction that is incorporated in the Amended
Complaint is DENIED.

4.

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
Carroll, Doe, and Solomon, who are current or former employees of NC DPS.

5.

IT IS FURTHER ORDERED that the Clerk of Court shall substitute the parties’
31

names as follows:
Marty Cooper for “FNU Cooper”
Gilbert Lewis for “FNU Lewis”
Stephen P. Carpenter for “FNU Carpenter”
Scotty Lowery for “FNU Lowry”
Joseph Buchanan for “FNU Buchanan”

Signed: November 28, 2018

32