Lineberger v. Price et al
ORDER that the Plaintiff's shall have 30 days in which to amend his Complaint in accordance with the terms of this Order. If the Plaintiff fails to amend the Complaint in accordance with this Order and within the time li mit set by the Court, this action will be dismissed without prejudice and without further notice to the Plaintiff. IT IS FURTHER ORDERED that the Plaintiff's Motion for Leave to Change Date of Incident 6 is DENIED AS MOOT. The Clerk is respectfully instructed to mail the Plaintiff a blank prisoner § 1983 complaint form. (Amended Pleadings due by 5/26/2021.) Signed by Chief Judge Martin Reidinger on 4/26/2021. (Pro se litigant served by US Mail.) (rhf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:21-cv-00077-MR
MICHAEL ORLANDO LINEBERGER, )
DEKERK PRICE, et al.,
THIS MATTER is before the Court on initial review of the Complaint
[Doc. 1]. Also pending is the Plaintiff’s Motion for Leave to Change Date of
Incident [Doc. 6]. The Plaintiff is proceeding in forma pauperis. [See Doc.
The pro se Plaintiff filed this civil rights action pursuant to 42 U.S.C. §
1983, complaining about incidents that allegedly occurred at the Mountain
View Correctional Institution, where he is presently incarcerated.
Plaintiff names as Defendants: Kala Phillips, a Mountain View C.I. unit
manager; and Dekerk Price, a Mountain View C.I. assistant unit manager.
In his Complaint, Plaintiff alleges that he slipped and fell in a handicap
shower on December 5, 2020. [Doc. 1 at 7, 14]. He alleges that slippery
soap residue caused him to lose his balance as he tried to stand from the
shower seat despite holding onto a hand rail. [Id. at 14]. The Plaintiff hit his
lower back on the shower seat, and then became pinned between the seat
and the floor. [Id.]. Officer Silvers1 responded and helped release the
Plaintiff’s neck and shoulder. [Id.].
The Plaintiff alleges that a similar incident happened to another inmate
about a month before his accident. [Id.]. He claims that the Defendants
knew about the situation “by his/her authority” and negligently failed to
correct the issue by providing the same non-slip shower mats that the prison
has in the segregation unit. [Id. at 13].
The Plaintiff alleges that he sustained injuries to his neck, shoulder,
and lower back as a result of this incident. [Id. at 5].
He alleges that he
received no medical attention except for one trip to the hospital even though
he asked Jeffrey Patane P.A.2 whether he would be going to see outside
The Plaintiff seeks compensatory and punitive damages. [Id.].
Officer Silvers is not named as a Defendant.
Mr. Patane is not named as a Defendant. Therefore, to the extent that the Plaintiff
attempts to assert a claim of deliberate indifference to a serious medical need against Mr.
Patane, such a claim is a nullity. 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).
STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “(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); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress
from governmental entities, officers, or employees).
In its frivolity review, a court must determine whether a 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).
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments” and protects prisoner from 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)). To establish a violation of the Eighth
Amendment, 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).
The Plaintiff’s allegations against Defendants Price and Phillips are
based on negligence.
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. See 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.”).
In his pending Motion for Leave to Change Date of Incident, the Plaintiff
alleges that the incident occurred on December 4, 2020. [Doc. 6]. Because
the Complaint has not passed initial review and the Plaintiff is being granted
leave to amend, the Motion is denied as moot.
In sum, the Plaintiff has failed to state a claim against any Defendant.
The Court will allow the Plaintiff thirty (30) days to amend his Complaint, if
he so chooses, to properly state a claim upon which relief can be granted.
Should the Plaintiff fail to timely amend his Complaint, this action will be
dismissed without prejudice and without further notice to the Plaintiff. The
Plaintiff’s Motion for Leave to Change Date of Incident is denied as moot.
IT IS, THEREFORE, ORDERED that the Plaintiff shall have thirty (30)
days in which to amend his Complaint in accordance with the terms of this
Order. If the Plaintiff fails to amend the Complaint in accordance with this
Order and within the time limit set by the Court, this action will be dismissed
without prejudice and without further notice to the Plaintiff.
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Leave to
Change Date of Incident [Doc. 6] is DENIED AS MOOT.
The Clerk is respectfully instructed to mail the Plaintiff a blank prisoner
§ 1983 complaint form.
IT IS SO ORDERED.
Signed: April 26, 2021
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