Kimble v. Francis et al

Filing 8

ORDER: The excessive force claim against Sergeant Francis survives initial review. The remaining claims are dismissed without prejudice. Plaintiff shall have 14 days in which to file a superseding Amended Complaint. If Plain tiff fails to timely do so, this action will proceed on the original 1 Complaint. The Clerk is directed to mail a summons form to Plaintiff for Plaintiff to fill out and return for service of process on Defendant Francis. Signed by Chief Ju dge Frank D. Whitney on 8/14/2018. (FNU Carver and FNU LNU terminated. Amended Pleadings deadline: 8/29/2018. Summons due by 8/29/2018.) (Pro se litigant served by US Mail with copy of 1 Complaint, Amended Complaint Form, blank summons.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-173-FDW
CIANO KIMBLE,

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

ORDER

THIS MATTER is before the Court on initial review of pro se Plaintiff’s Complaint, (Doc.
No. 1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 7).
I.

BACKGROUND

Pro se Plaintiff has filed a civil rights suit pursuant to 42 U.S.C. § 1983 for incidents that
allegedly occurred at the Madison County Sheriff’s Office.1 He names as Defendants Madison
County Sheriff’s Office Correctional Officer Sgt. Francis, John Doe white male correctional
officer, and Police Officer M. Carver.
Construing the Complaint liberally and accepting it as true, Plaintiff was a pretrial detainee
on April 26, 2018, when he was being transferred to Central Prison for safekeeping due to a dispute
with another inmate/family member at Madison County. Plaintiff was in full restraints in a cell
when Plaintiff pulled away from a tight handcuff and he was choked by a large white male officer,
placed in a chokehold, and tazed with Sergeant Francis’ stun device. Plaintiff’s hands were at his
sides when he was tazed at least four times with a “dry stun” technique against his skin. A camera

1

Plaintiff’s address of record is at the Central Prison in Raleigh.

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was ten to twelve feet away and might have captured the incident on camera. If Madison County
cannot produce video of the confrontation, that is spoliation of evidence under the North Carolina
Statutes.
In the “injures” section of the Complaint form, Plaintiff states “no medical treatment.”
(Doc. No. 1 at 5).
Plaintiff asks the Court to prosecute those involved in the breach of his rights, for damages,
and the imposition of criminal penalties for those responsible for destroying his legal mail.
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, 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
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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)

No Allegations

The Federal Rules of Civil Procedure require a complaint to contain 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).
Plaintiff names Officer M. Carver as a Defendant but makes no allegations against him
whatsoever. Therefore, the Complaint is dismissed as to Defendant Carver.
(b)

John Doe

John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v.
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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 alleges that an unnamed white male police/corrections officer who is 6’3” tall and
weighs 260-290 pounds used excessive force against him at the Madison County Jail on April 26,
2018. These allegations are insufficient to identify the John Doe Defendant such that service can
be made on him. Therefore, the claim against John Doe will be dismissed at this time, but the
dismissal is without prejudice for Plaintiff to amend if he is able to identify the officer during
discovery.
(2)

Excessive Force
The Due Process Clause of the Fourteenth Amendment “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 v.
Wolfish, 441 U.S. 520, 538 (1989). While prisoners cannot be punished cruelly and unusually,
pretrial detainees cannot be punished at all. Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015).
Therefore, for pretrial detainee excessive force cases two issues are examined: 1) was the act
purposeful (not negligent or accidental), and 2) was the force objectively unreasonable. Subjective
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questions like ill will and malice are not appropriate. Id. at 2473; see Duff v. Potter, 665 Fed. Appx.
242 (4th Cir. 2016). In determining whether the force was objectively unreasonable, a court
considers the evidence from the perspective of a reasonable officer on the scene without the benefit
of 20/20 hindsight. Kingsley, 135 S.Ct. at 2473. Considerations that bear on the reasonableness or
unreasonableness of the force include: the relationship between the need for the use of force and
the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to
temper or limit the amount of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was actively resisting. Id. The
standard is an objective one so the officer’s motivation or intent is irrelevant. Duff, 665 Fed. Appx.
at 244.
Plaintiff’s claim that he was choked and repeatedly tazed while he was fully restrained in
a cell sets forth an adequate claim of the use of excessive force. Therefore, this claim will be
permitted to proceed against Defendant Francis.
(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. The
first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected
interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and
Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’
the question of what process is required and whether any provided could be adequate in the
particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not
implicated.” Stone, 855 F.2d at 172.
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Plaintiff alleges that Defendants “violated [his] due process,” and he seeks criminal
penalties against “those responsible for the destruction of [his] legal mail.” (Doc. No. 1 at 3, 12).
This claim is too vague and conclusory to support relief because it is devoid of any factual
support. Therefore it will be dismissed.
(4)

Deliberate Indifference
“[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’ [extends]

to the treatment of prisoners by prison officials,” Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013),
and “forbids the unnecessary and wanton infliction of pain,” id. (internal quotation marks omitted).
As the Supreme Court has explained, “deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). The
deliberate indifference standard has two components. The plaintiff must show that he had serious
medical needs, which is an objective inquiry, and that the defendant acted with deliberate
indifference to those needs, which is a subjective inquiry. See 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.” Id. at 241 (internal quotation marks omitted).
Plaintiff’s bald assertion that he received “no medical treatment,” (Doc. No. 1 at 5), is
insufficient to state a deliberate indifference claim. Therefore, this claim will be dismissed.
(5)

Supplemental Jurisdiction
The district courts have supplemental jurisdiction over claims that are so related to the

claims over which the court has original jurisdiction that they “form part of the same case or
controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A court may
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decline to exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of
state law; (2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction; (3) the district court has dismissed all claims over which it has
original jurisdiction; or (4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction. 28 U.S.C. § 1367(c)(1)-(4).
Plaintiff states that he believes the incident was caught on camera, “see: N.C. Statute –
Spoliation of Evidence (if Madison County Cannot produce this video Confrontation).” (Doc. No.
1 at 12).
It is unclear whether Plaintiff is attempting to state a claim under North Carolina law. If
so, his allegations are too vague and conclusory to proceed and the Court declines to exercise its
supplemental jurisdiction at this time.
IV.

CONCLUSION

For the reasons stated herein, the Plaintiff’s excessive force claims are sufficient to pass
initial review against Sergeant Francis pursuant to 28 U.S.C. § 1915. The remaining claims are
dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff may file
a superseding Amended Complaint within 14 days in which he may attempt to cure the deficiencies
identified in this Order.
IT IS, THEREFORE, ORDERED that:
1. The excessive force claim against Sergeant Francis survives initial review under 28
U.S.C. § 1915.
2. The remaining claims are dismissed without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
3. Plaintiff shall have 14 days in which to file a superseding Amended Complaint in
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accordance with this Order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint within the time limit set by the Court, this action will proceed
on the original Complaint, (Doc. No. 1).
4. The Clerk is directed to mail a copy of the Complaint, (Doc. No. 1), and a new Section
1983 complaint form to Plaintiff.
5. IT IS FURTHER ORDERED THAT the Clerk is directed to mail a summons form
to Plaintiff for Plaintiff to fill out and return for service of process on Defendant
Francis. Once the Court receives the summons form, the Clerk shall then direct the
U.S. Marshal to effectuate service on Defendant. The Clerk is respectfully instructed
to note on the docket when the form has been mailed to Plaintiff.

Signed: August 14, 2018

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