McClellan v. Cothron et al
ORDER re 28 Amended Complaint: The failure to protect claim against Defendants Schetter and Davis survives initial review. The remaining claims are dismissed without prejudice for failure to state a claim upon which relief may be granted. Defendants McMahan, Banks, Ward, Tapp, Hicks, and Riles shall be dismissed as Defendants in this matter. Signed by Chief Judge Martin Reidinger on 4/26/2021. (Pro se litigant served by US Mail.)(kby)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
IAIAN EVANS MCCLELLAN,
TODD SCHETTER, et al.,
THIS MATTER is before the Court on initial review of Plaintiff’s Third
Amended Complaint, filed under 42 U.S.C. § 1983. [Doc. 28]. See 28 U.S.C.
§§ 1915(e)(2); 1915A.
Pro Se Plaintiff Iaian Evans McClellan (“Plaintiff”) is a prisoner of the
State of North Carolina currently incarcerated at Marion Correctional
Institution (“Marion”) in Marion, North Carolina.
On October 13, 2020,
Plaintiff’s Second Amended Complaint [Doc. 18] survived initial review as to
Plaintiff’s Eighth Amendment failure to protect claim against Defendant Todd
Schetter only. [Doc. 19]. Thereafter, Plaintiff asked the Court to allow him
to “withdraw” his Complaint and “void” the filing fee or, in the alternative, to
amend his Complaint a third time “to add officers who were directly involved
in the ‘failure to protect incident.’” [Doc. 26]. The Court denied Plaintiff’s
motion to withdraw his Complaint and for return of the filing fee but granted
Plaintiff’s motion to amend his Complaint. [Doc. 27].
Plaintiff has now filed his Third Amended Complaint [Doc. 28], which
is before the Court on initial review. Plaintiff names the following individuals
as Defendants, who are all alleged to be employees of Marion: (1) Toni L.
Banks, identified as a Lieutenant and investigating officer; (2) Todd Schetter,
identified as a Correctional Officer; (3) Caleb M. Davis, identified as a
Correctional Officer; (4) Wesley E. Ward, identified as a registered nurse; (5)
Saint T. Tapp, identified as a Correctional Sergeant; (6) Jacob A. Hicks,
identified as a Correctional Sergeant; (7) R. Riles, identified as a Captain;
and (8) T. McMahan, identified as a Lieutenant. [Doc. 28 at 2-4]. Plaintiff’s
claims all arise from an attack on Plaintiff by another inmate. Plaintiff claims
that Defendant Schetter “called for another group of inmates to be let out of
their cell [to the shower area] when [Plaintiff] was not secured in [his] cell.”
[Doc. 28 at 5]. This allowed fellow inmate, Joshua Carter, to wait outside the
shower and attack Plaintiff when Plaintiff came out. [Id. at 7]. Plaintiff also
alleges that Schetter pepper sprayed him during the incident. [Id. at 5].
As to the other Defendants, Plaintiff alleges as follows:
Lt. T. McMahan; officer in charge at the time failed to
sanction staff [and] to declare me as assault victim.
Caleb Davis; he was the officer at the controls in the
control booth who pushed the button to release other
prisoners from their cell (Namely Joshua Cater who
assaulted me with a deadly weapon!) After receiving
OFC. Todd Schetter radio message to let other
prisoners out of their cells while I was in the shower.
He failed to look in the shower himself from booth.
Toni L. Banks; This Lieutenant literally investigated
and done all incident reports stating the position of all
persons involved, Lt. Banks told direct lies in her
report as if policy was followed when Todd Schetter
and Caleb Davis clearly didn’t visually take a physical
look before opening another group of inmates doors
while I was in the shower. Aidding and assisting in a
Wesley E. Ward; The Nurse who seen me after I was
assaulted by inmate Joshua Carter with a deadly
Nurse Ward failed to document my
shoulder injury in it’s total form an only gave me first
aid without sending me to outside medical. The
results of such call made has resulted in injury never
Saint T. Tapp; The person who gave response to my
direct written grievance. Saint T. Tapp being the unit
manager assistant who is supervisor of OFC. Davis
and Schetter. Saint T. Tapp first step, grievance
response to me. He clearly stated stuff under his
directive errored, but he failed to sanction Davis and
Schetter which made this suite necessary.
Jacob Hicks; The person who handcuffed me after
pulling me from the floor in incident where I was the
victim, he responded as an eye witness, used force
of handcuffs on me aggressively.
Cpt. R. Riles; shift leader of institution, superior of all
officers involved at the time failed to [illegible] or
punish officers where they clearly was the ones who
errored in rules.
[Doc. 28 at 5 (errors uncorrected)]. Plaintiff made only an Eighth Amendment
failure to protect claim based on this alleged conduct.1 [See id. at 4].
For injuries, Plaintiff states that he was “stabbed and cut on back,”
“messed up [his] shoulder during [the] struggle,” and “clearly had a head
injury.” [Id. at 7].
For relief, Plaintiff seeks declaratory relief and monetary and punitive
STANDARD OF REVIEW
The Court must review Plaintiff’s Complaint to determine whether it is
subject to dismissal on the grounds that it is “frivolous or malicious [or] fails
to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2).
Furthermore, § 1915A requires an initial review of a “complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity,” and the court must identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
The Court, however, will address all claims fairly raised by Plaintiff’s allegations.
complaint is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A.
In its frivolity review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
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).
To state a claim under § 1983, a plaintiff must allege that he was
“deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Failure to Protect
“Being violently assaulted in prison is simply not part of the penalty that
criminal offenders pay for their offenses against society.” Farmer v. Brennan,
511 U.S. 825, 834 (1994) (quotation marks omitted). As such, the Eighth
Amendment’s Cruel and Unusual Punishments Clause imposes on prison
officials “a duty . . . to protect prisoners from violence at the hands of other
prisoners.” Id. at 833 (quotation marks omitted).
Plaintiff alleges that Defendants Schetter and Davis failed to protect
Plaintiff from an attack by another inmate when Schetter directed that a
group of inmates be released from their cells to the shower area before
securing another group in their cells and Defendant Davis executed the
directive without confirming the shower area was clear. Plaintiff alleges that
as a result he was violently assaulted by another inmate. The Court finds
that, taking Plaintiff’s allegations as true for the purposes of initial review,
and construing all inferences in Plaintiff’s favor, Plaintiff Eighth Amendment
claim based on the failure to protect against Defendants Schetter and Davis
survives initial screening under 28 U.S.C. § 1915(e).
Failure to Punish
Plaintiff alleges that Defendants McMahan, Tapp, and Riles were in
supervisory positions and failed to sanction or punish staff, including
Schetter and Davis, after the assault for failing to follow procedure. Plaintiff,
however, has no constitutional right to have officers allegedly responsible for
his injuries internally punished or sanctioned by their supervisors or by their
correctional facility. As such, even if Defendants Schetter and Davis did
violate Plaintiff’s Eighth Amendment rights by failing to protect the Plaintiff,
Defendants McMahan, Tapp, and Riles are not liable under § 1983 for not
punishing Schetter and Davis after the fact.
Deliberate Indifference to Serious Medical Need
Claims under 42 U.S.C. § 1983 based on an alleged lack of or
inappropriate medical treatment fall within the Eighth Amendment’s
prohibition against cruel and unusual punishment. Estelle v. Gamble, 429
U.S. 97, 104 (1976). To state a claim under the Eighth Amendment, a
plaintiff must show a “deliberate indifference to serious medical needs” of the
inmate. Id. “Deliberate indifference requires a showing that the defendants
actually knew of and disregarded a substantial risk of serious injury to the
detainee or that they actually knew of and ignored a detainee’s serious need
for medical care.” Young v. City of Mt. Ranier, 238 F.3d 567, 575-76 (4th
Cir. 2001) (citations omitted). “To establish that a health care provider’s
actions constitute deliberate indifference to a serious medical need, the
treatment must be so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness.” Miltier v.
Beorn, 896 F.2d 848, 851 (4th Cir. 1990).
Allegations that might be sufficient to support negligence and medical
malpractice claims do not, without more, rise to the level of a cognizable §
1983 claim. Estelle, 429 U.S. at 106; Grayson v. Peed, 195 F.3d 692, 695
(4th Cir. 1999) (“Deliberate indifference is a very high standard—a showing
of mere negligence will not meet it.”). To be found liable under the Eighth
Amendment, a prison official must know of and consciously or intentionally
disregard “an excessive risk to inmate health or safety.” Farmer v. Brennan,
511 U.S. 825, 837 (1994); Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir.
1998). “[E]ven if a prison doctor is mistaken or negligent in his diagnosis or
treatment, no constitutional issue is raised absent evidence of abuse,
intentional mistreatment, or denial of medical attention.” Stokes v. Hurdle,
393 F. Supp. 757, 762 (D. Md. 1975), aff’d, 535 F.2d 1250 (4th Cir. 1976).
Plaintiff alleges that Nurse Ward examined Plaintiff after the assault
and failed to completely document Plaintiff’s shoulder injury. Plaintiff also
alleges that Nurse Ward gave Plaintiff first aid but did not send him to an
outside medical facility. Taking Plaintiff’s allegations as true and giving
Plaintiff the benefit of every reasonable inference, Plaintiff has failed to state
a claim against Nurse Ward for deliberate indifference to Plaintiff’s serious
While Plaintiff’s allegations may rise to the level of
negligence, they do not support that Nurse Ward knew of and consciously or
intentionally disregarded “an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837. The Court will, therefore, dismiss this claim.
To the extent Plaintiff intended to assert a claim for medical
negligence, he has also failed. Plaintiff has not complied with Rule 9(j) of
the North Carolina Rules of Civil Procedure, which requires plaintiffs
asserting medical malpractice actions to obtain an expert review of “the
medical care and all medical records” before filing a lawsuit, and for a
medical expert to certify that. N.C. Gen. Stat. § 1A-1, Rule 9(j). The Court
will dismiss this claim without prejudice.
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” U.S. CONST. amend. VIII, and protects prisoners from the
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
The Eighth Amendment protects prisoners from inhumane
methods of punishment and from inhumane conditions of confinement.
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “Prison conditions
may be harsh and uncomfortable without violating the Eighth Amendment
prohibition against cruel and unusual punishment.” Dixon v. Godinez, 114
F.3d 640, 642 (7th Cir. 1997). Furthermore, prisoners have no right to be
housed in any particular facility, at a particular custody level, or in a particular
portion or unit of a correctional institution. Pevia v. Hogan, 443 F.Supp.3d
612, 634 (4th Cir. 2020).
As to the use of excessive force, to establish an Eighth Amendment
claim, an inmate must satisfy both an objective component–that the harm
inflicted was sufficiently serious–and a subjective component–that the prison
official acted with a sufficiently culpable state of mind. Williams v. Benjamin,
77 F.3d 756, 761 (4th Cir. 1996). In adjudicating an excessive force claim,
the Court must consider such factors as the need for the use of force, the
relationship between that need and the amount of force used, the extent of
the injury inflicted, and, ultimately, whether the force was “applied in a good
faith effort to maintain or restore discipline, or maliciously and sadistically for
the very purpose of causing harm.” Whitley, 475 U.S. at 320-21.
Here, Plaintiff alleges that Defendant Hicks handcuffed Plaintiff
“aggressively” after pulling Plaintiff from the floor after the alleged attack and
that Defendant Schetter used pepper spray on Plaintiff. Taking Plaintiff’s
allegations as true and drawing all reasonable inferences in Plaintiff’s favor,
Plaintiff has not stated a claim under the Eighth Amendment against these
Defendants based on the use of excessive force. These allegations alone
do not satisfy either the objective or subjective component of an Eighth
Amendment claim. Defendant Hicks will, therefore, be dismissed on initial
Investigation of the Assault
Plaintiff alleges that Defendant Banks “told direct lies in her [incident]
report as if policy was followed” by Schetter and Davis” and that Banks
“aid[ed] and assist[ed] in a cover up.” [Doc. 28 at 5]. Plaintiff does not state
how the alleged conduct violated his constitutional rights or what harm he
suffered thereby. To the extent that Plaintiff was subject to false misconduct
charges due to Banks’ report, Plaintiff does not have a constitutional right to
be free from false disciplinary reports. See Lewis v. Viton, No. 07-3663, 2007
WL 2362587, at *9 (D. N.J. Aug. 14, 2007) (“The act of filing false disciplinary
charges does not itself violate a prisoner’s constitutional rights.”) (citation
omitted). To the extent that Banks’ incident report may have affected the
grievance procedure or outcome, Plaintiff does not have a constitutional right
of access to grievance procedures. See Adams v. Rice, 40 F.3d 72, 75 (4th
Cir. 1994) (“[T]he Constitution creates no entitlement to grievance
procedures or access to any such procedure voluntarily established by a
state.”) (citation omitted).
As such, Plaintiff has failed to state a claim against Defendant Banks
on initial review and she will be dismissed as a Defendant in this matter.
In sum, Plaintiff has failed to state a claim upon which relief may be
granted under § 1983 as to Defendants McMahan, Banks, Ward, Tapp,
Hicks, and Riles. Plaintiff’s claim against Defendants Schetter and Davis
based on the failure to protect under the Eighth Amendment survives initial
This Court recently enacted Local Rule 4.3, which sets forth a
procedure to waive service of process for current and former employees of
the North Carolina Department of Public Safety (“NCDPS”) in actions filed
by North Carolina State prisoners. In light of the Court’s determination that
this case passes initial review on Plaintiff’s Third Amended Complaint in
accordance with this Order, the Court will order the Clerk of Court to
commence the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendants Schetter and Davis, who are alleged to be current or
former employee of the NCDPS.
IT IS, THEREFORE, ORDERED that:
The failure to protect claim against Defendants Schetter and
Davis survives initial review;
The remaining claims are dismissed without prejudice for failure
to state a claim upon which relief may be granted;
Defendants McMahan, Banks, Ward, Tapp, Hicks, and Riles
shall be dismissed as Defendants in this matter;
IT IS FURTHER ORDERED that Clerk of Court shall commence the
procedure for waiver of service as set forth in Local Civil Rule 4.3 for
Defendants Schetter and Davis, who are alleged to be current or former
employees of NCDPS.
IT IS SO ORDERED.
Signed: April 26, 2021
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