Thomas v. Avery-Mitchell Correctional Institution et al

Filing 6

ORDER that the 1 Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in accordance with this order and all applicable rules and procedures. Signed by Chief Judge Frank D. Whitney on 8/14/2018. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-159-FDW
JEROME THOMAS,

)
)
Plaintiff,
)
)
vs.
)
)
AVERY-MITCHELL CORRECTIONAL
)
INSTITUTION, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint filed under
42 U.S.C. § 1983, (Doc. No. 1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 5).
I.

BACKGROUND

Pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983 for an incident that occurred
at the Avery-Mitchell Correctional Institution where he is still incarcerated. Plaintiff names as
Defendants the Avery-Mitchell Correctional Institution, Correctional Officer Henderson, Mr.
Walldroop, Sergeant on Duty, and Captain on Duty.
Construing the Complaint liberally and accepting the allegations as true, Plaintiff has high
blood pressure and gout. He went to dinner on April 23, 2018, at approximately 4:30 PM and was
waiting for an elevator to go to a class for 15 minutes. A sergeant and lieutenant was within his
view so they knew he was waiting that long for the elevator. The officer who controls the elevator
saw a few employees and allowed them to go to the gate immediately. After 15 minutes, Plaintiff
rode the elevator to the educational floor. An officer has to call and log every time the elevator is
used. When Plaintiff got off on the educational floor, he was told there was no class that night so
he called for the elevator to come back. It arrived and Plaintiff got on immediately so there was no
1

malfunction. The elevator went downstairs then was turned off or stopped because it became silent.
Plaintiff waited for 15 minutes and began having chest pain, shortness of breath, and a panic attack.
He fell on the elevator floor and passed out for an unknown length of time. He stood back up for
two or three minutes and passed out again. Plaintiff started pressing buttons frantically and
shouting as loud as possible but nobody responded for a few more minutes.
The elevator sent Plaintiff back upstairs and Henderson saw that he was stuck in the
elevator and distraught, crying and sweating profusely. Plaintiff asked for the protocol for this type
of situation and asked for Henderson’s superior. Henderson refused and threatened to put Plaintiff
in segregation. Henderson made Plaintiff sit with him for five or ten minutes then said he would
speak to the unit sergeant. Henderson asked if Plaintiff wanted to ride the elevator back down and
Plaintiff refused. Plaintiff was dizzy, lightheaded, and had chest pain as he walked down the stairs.
He immediately went to medical because he knew something was not right. Plaintiff told Officer
Mathis what had happened but he said he did not want to hear it and to go back to the housing unit
to talk to the sergeant. Plaintiff had to walk approximately ¼ mile to the unit by himself, while in
pain.
When Plaintiff got the unit, he went to the sergeant’s office where the sergeant and unit
manager were waiting. Plaintiff told them what happened and asked for medical treatment. They
questioned Plaintiff as though he was lying and Plaintiff said to look at the camera footage. “He”
lied and said there are not any cameras up there. (Doc. No. 1 at 8). “He” called to medical to inform
them but it was shift change so “they” made Plaintiff’ go back to the cell block, then walk up to
medical again. (Doc. No. 1 at 8).
When Plaintiff arrived at medical he was turned away because nobody had informed them
that Plaintiff was coming. Plaintiff went back to the block again and medical said they needed to

2

see him but Plaintiff could not walk any further. He had severe chest pain and asked the sergeant
for a wheelchair. Plaintiff was then taken to medical by an inmate in the wheelchair. They began
running tests and could not draw blood. Plaintiff was given a nitroglycerine pill to ease his pain
and his blood pressure started to drop. When the doctor came in, he went over the test results and
called for an ambulance. Plaintiff was taken to the hospital in an ambulance and was treated. This
occurred over a two-hour period.
He seeks damages for his mental state, nightmares, and headaches, and the institution of
criminal charges against the individuals involved.
II.

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
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, the Court must determine whether the Amended 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

3

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.
III.
(1)

DISCUSSION

Parties
(a) Avery-Mitchell C.I.
The Eleventh Amendment bars suits directly against a state or its agencies, unless the state

has waived its immunity or Congress has exercised its power under § 5 of the Fourteenth
Amendment to override that immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66
(1989). Congress has not imposed § 1983 liability upon states, and the state of North Carolina has
done nothing to waive its immunity. Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989) (citing
McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir. 1987)). Therefore, neither the NC DPS nor
any of its facilities are “persons” under § 1983. See Fox v. Harwood, 2009 WL 117890 at *1
(W.D.N.C. April 24, 2009).

4

The Avery-Mitchell C.I., which is an agency of the State, is not a person pursuant to § 1983
and therefore, the claims against it are dismissed.
(b) John Does
John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v.
Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally
not favored in federal courts; it is appropriate only when the identity of the alleged defendant is
not known at the time the complaint is filed and the plaintiff is likely to be able to identify the
defendant after further discovery.” Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 840 (4th
Cir. 2000). “[I]f it does not appear that the true identity of an unnamed party can be discovered
through discovery or through intervention by the court, the court could dismiss the action without
prejudice.” Schiff, 691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it
was error for the district court to conclude that, under appropriate circumstances, this type of case
would not be permitted).
Plaintiff names as Defendants the Sergeant on Duty and Captain on Duty, but he does not
provide these individuals’ names or any further information that would help identify them. Service
of process on these individuals is impossible at present so the claims against them will be dismissed
at this time.
(c) No Allegations
The Federal Rules of Civil Procedure require a short and plain statement of the claim. 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).

5

Plaintiff names “Mr. Walldroop” as a Defendant but fails to make any factual allegations
against him including his role in the alleged incident. Therefore, the claim against Mr. Walldroop
is dismissed.
(d) 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 body of the Complaint contains allegations against 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). The allegations against individuals not named as Defendants are
therefore dismissed without prejudice.
(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
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.

6

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. Inmates’ claims that prison officials disregarded specific known risks to their health or safety
are analyzed under the deliberate indifference standard of the Eighth Amendment. See Pressly v.
Hutto, 816 F.2d 977, 979 (4th Cir.1987). To establish the imposition of cruel and unusual
punishment, a prisoner must prove two elements: (1) “the deprivation of [a] basic human need was
objectively sufficiently serious,” and (2) “subjectively the officials act[ed] with a sufficiently
culpable state of mind.” Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (quoting Strickler v.
Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (quotation omitted).
(a) 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 v. Seiter, 501 U.S. 294, 297-99 (1991). 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).
Plaintiff alleges that he had to wait for an elevator for 15 minutes, then became stuck in the
elevator for between 45 minutes and an hour. This condition is not objectively serious enough to
implicate the Eighth Amendment. Therefore, this claim will be dismissed.
(b) Serious Medical Need
To state a prima facie case of deliberate indifference to a serious medical need, a plaintiff

7

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 alleges that he suffers from high blood pressure and gout. He became distraught
while he was stuck in the elevator for 45 minutes to an hour, he had a panic attack, chest pain, and
shortness of breath which caused him to pass out twice. Once he was out of the elevator, he sat
down with Henderson for five or ten minutes, who offered to let him ride the elevator back
downstairs, and said he would speak to the sergeant. Plaintiff declined the elevator ride and walked
downstairs. Plaintiff walked to the sergeant’s office while he was in pain and asked the sergeant
and unit manager for medical treatment. A shift change was underway so they told him to go to
the cell block and return to medical later. Plaintiff was initially turned away from medical because
nobody said he was coming, so he went back to his cell block. He was unable to walk any further,
asked for a wheelchair, and was wheeled to medical by another inmate. At medical, he was given
nitroglycerine, tests were run, and when the doctor came in, he was taken to the hospital via
ambulance.
Assuming that Plaintiff had a serious medical need, nothing in the foregoing sequence of

8

events shows that Defendants deliberately deprived Plaintiff of needed medical care, or that the
two-hour delay between becoming stuck in the elevator and being transported to the hospital was
due to anything other than negligence.
Therefore, Plaintiff’s deliberate indifference claim will be dismissed.
IV.

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.
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 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and (iii).

9

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 14, 2018

10