Inscoe v. NC Department of Public Safety et al

Filing 6

ORDER: 1) The § 1983 and ADA claims have passed initial review against Defendants Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, Jordan-Williams, Miller, Silver, Waldroop, and Watson, and the Court exercises supplemental jurisdiction over the Plaintiffs claims under the North Carolina Constitution against those Defendants as well as against NCDPS, as described in this Order. 2) The remaining claims are DISMISSED WITHOUT PREJUDICE. 3) The Clerk shall commence the procedure for waiver of service as set forth in Local Civil Rule 4.3 for NCDPS and Defendants Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, Jordan-Williams, Miller, Silver, Waldroop, and Watson. Signed by Chief Judge Martin Reidinger on 1/16/2023. (Pro se litigant served by US Mail.) (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00243-MR
ASHLEE INSCOE,1

)
)
Plaintiff,
)
)
vs.
)
)
NORTH CAROLINA DEPARTMENT
)
OF PUBLIC SAFETY, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the pro se
Complaint [Doc. 1]. The Plaintiff has paid the full filing fee.
I.

BACKGROUND
The pro se Plaintiff filed this civil rights action pursuant to 42 U.S.C. §

1983 and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., and North Carolina law, addressing incidents that allegedly occurred at
the Avery-Mitchell Correctional Institution.2 The Plaintiff originally filed this

According to the North Carolina Department of Public Safety’s website, the Plaintiff’s
name is William M. Inscoe. See https://webapps.doc.state.nc.us/opi/viewoffender.do?
method=view&offenderID=0568587&searchOffenderId=0568587&searchDOBRange=0
&listurl=pagelistoffendersearchresults&listpage=1 (last accessed Nov. 17, 2022); Fed.
R. Evid. 201.
1

2

The Plaintiff is presently incarcerated at the Nash Correctional Institution.

Case 1:22-cv-00243-MR Document 6 Filed 01/18/23 Page 1 of 12

action in the United States District Court for the Eastern District of North
Carolina; the case was transferred to this Court on November 16, 2022.
[Doc. 3].
The Plaintiff names as Defendants the North Carolina Department of
Public Safety (NCDPS), and the following NCDPS employees in their official
and individual capacities: Eddie Buffaloe, the NCDPS secretary; Charlotte
Jordan-Williams,3 the NCDPS Prison Rape Elimination Act (PREA) director;
Ronnie L. Honeycutt,4 the Avery-Mitchell CI warden; James B. Watson, an
Avery-Mitchell CI PREA compliance correctional captain; Derick Fox, an
Avery-Mitchell CI correctional lieutenant; James Waldroop, an Avery-Mitchell
CI unit manager; FNU Goforth and Edna Silver,5 Avery-Mitchell CI
correctional sergeants; FNU Hicks, Shawn Buchanan, Chris Miller, and
Russel Carver, Avery-Mitchell CI correctional officers; and “J. Doe(s),”
NCDPS employees. [Doc. 1 at 3-9].

3

Also “Williams” in the Complaint. [Doc. 1-1 at 32].

4

Also “Huneycutt” in the Complaint. [See, e.g., Doc. 1-1 at 32].

5

Also “Silvers” in the Complaint. [Doc. 1-1 at 33].

2
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The Plaintiff describes herself as an “intersex woman”6 who with
diagnoses of “hermaphroditism/intersex, … cryptorchidism and gender
dysphoria” who is genetically female, but was raised as male, has primary
and secondary female sex characteristics, has spent most of her life as a
female, has undergone gender affirming surgery, and has been on estrogen
hormone replacement therapy for almost 25 years. [Doc. 1-1 at 6-7, 36].
She claims that NCDPS inter alia failed to properly train health care, custody,
and administration staff, has refused to transfer her to a female prison for the
past three years, and forced her into an unsafe communal living situation
with 33 male inmates at Avery-Mitchell CI. [See Doc. 1-1 at 10-11]. She
claims that she has endured constant harassment and sexual propositioning
by inmates and staff, unreasonable strip searches by male guards, and a
sexual assault by Officer Carver. The Plaintiff seeks a declaratory judgment,
injunctive relief, compensatory and punitive damages, prejudgment interest,
all fees and costs, a jury trial, and any further relief that the Court deems just
and proper. [Doc. 1 at 1; Doc. 1-1 at 39-40].

“Intersex” is defined as “having physical characteristics intermediate between a true
male and a true female,” that “usually results from extra chromosomes or a hormonal
abnormality during embryological development.” https://www.britannica.com/science
/intersex (last accessed Nov. 17, 2022); Fed. R. Ev. 201.
6

3
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II.

STANDARD OF REVIEW
Although the Plaintiff has paid the full filing fee, the Court must conduct

an initial review and identify and dismiss the complaint, or any portion of the
complaint, if it 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
to 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
(1972).

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).

4
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III.

DISCUSSION7
A.

Parties

The Plaintiff names “J. Doe(s)” NCDPS employees as Defendants.
[Doc. 1 at 9].

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
the 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. See Roper
v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996); Gillespie v. Civiletti, 629 F.2d
637, 642 (9th Cir. 1980). “[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 198 (footnote omitted). The Plaintiff has provided no information
from which the Court can conclude that she would likely be able to identify
any John and/or Jane Doe Defendants through discovery. Accordingly, the
claims against the Doe Defendants are dismissed at this time.

7

The Court will not attempt to address all of the individual allegations contained in the
57-page Complaint. However, the allegations are liberally construed and the Court will
address the claims reasonably suggested by the allegations.
5
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Further, the body of the Complaint contains allegations against
numerous individuals who are not named as defendants in the caption as
required by Rule 10(a) of the Federal Rules of Civil Procedure. [See, e.g.,
Doc. 1-1 at 12, 25, 32 (referring to Jon Peiper, Officer Jimenson, and
“Defendants … Ishee, [and] Harris”)]; see Fed. R. Civ. P. 10(a) (“The title of
the complaint must name all the parties”); 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.”); Perez v. Humphries, No.
3:18-cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A
plaintiff’s failure to name a defendant in the caption of a Complaint renders
any action against the purported defendant a legal nullity”). The allegations
directed at individuals not named as Defendants are dismissed without
prejudice.
The Plaintiff also uses vague terms and pronouns rather than
identifying the individual(s) involved in each allegation. [See, e.g., Doc. 1-1
at 13, 23 (“DPS,” “DPS staff,” “staff, lieutenants, captains, sergeants”)]. Such
claims are too vague and conclusory to proceed insofar as the Court is
unable to determine the Defendant(s) to whom these allegations refer. See
Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain statement of the claim
showing that the pleader is entitled to relief”); Simpson v. Welch, 900 F.2d
6
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33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific
allegations of material fact are not sufficient); Dickson v. Microsoft Corp., 309
F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or
indirectly, that support each element of the claim). Further, these allegations
are nullities to the extent that refer to non-parties, and they are insufficient to
proceed insofar as they refer to Doe Defendants who are not likely to be
identified through discovery, for the reasons discussed supra.
B.

Section 1983

To state a claim under § 1983, a plaintiff must allege that she 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).
A state official can be sued in a § 1983 suit in three ways: in his
personal capacity, his official capacity, or in a more limited way, his
supervisory capacity. King v. Rubenstein, 825 F.3d 206, 223–24 (4th Cir.
2016). For personal liability, “it is enough to show that the official, acting
under color of state law, caused the deprivation of a federal right.” Kentucky
v. Graham, 473 U.S. 159, 166 (1985). In an official-capacity suit, however,
“[m]ore is required”: the suit is “treated as a suit against the entity,” which
must then be a “‘moving force’ behind the deprivation,” King, 825 F.3d at 223
7
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(quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); thus, the entity’s
“‘policy or custom’ must have played a part in the violation of federal law,” id.
(quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
694 (1978)). Meanwhile, a supervisor can be liable where (1) he knew that
his subordinate “was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury;” (2) his response showed
“deliberate indifference to or tacit authorization of the alleged offensive
practices;” and (3) that there was an “affirmative causal link” between his
inaction and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994) (internal quotation marks omitted).
Liberally construing the allegations and drawing all reasonable
inferences in the Plaintiff’s favor, the Plaintiff has sufficiently stated the
following claims as to pass initial review that: Defendants Buffaloe,
Buchanan, Carver, Fox, Goforth, Hicks Honeycutt, Jordan-Williams, Miller,
Silver, Waldroop, and Watson violated the Eighth Amendment by exposing
her to a substantial risk of serious harm; Defendants Buffaloe, Buchanan,
Carver, Fox, Goforth, Hicks, Honeycutt, Jordan-Williams, Miller, Silver,
Waldroop, and Watson violated the Fourth Amendment for subjecting her to
unreasonable searches; Defendants Fox, Goforth, Honeycutt, and Waldroop

8
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violated the First Amendment by retaliating against her; 8 and Defendants
Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, JordanWilliams, Miller, Silver, Waldroop, and Watson violated the Fourteenth
Amendment by denying her equal protection.9
C.

ADA

To state a claim under the ADA a plaintiff must show that: (1) she has
a disability; (2) she was otherwise qualified to receive the benefits of a public
service, program, or activity; and (3) she was denied the benefits of such
service, program, or activity, or was otherwise discriminated against, on the
basis of the disability. See Nat’l Fed. of the Blind v. Lamone, 813 F.3d 494
(4th Cir. 2016); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261 (4th Cir.
1995).
Here, the Plaintiff claims that she is a qualified person with a disability
under the ADA pursuant to her medical diagnoses; that the correctional
Defendants

discriminated

against

her,

denied

her

reasonable

8

The Complaint also suggests a claim for interference with the mail, but the Plaintiff has
failed to name as defendants any of the individuals who allegedly violated the First
Amendment in that regard.
9

With respect to Defendants Buffaloe, Honeycutt, Jordan-Williams, and Watson, it is not
entirely clear from the Plaintiff’s Complaint whether these Defendants are being sued in
their individual capacities for acts of personal wrongdoing or whether they are being sued
in their official or supervisory capacities. The Court finds that the parameters of the
Plaintiff’s claims in this regard would be best addressed in the context of a Rule 12 motion
to dismiss rather than on initial review.
9
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accommodations, denied her DPS programs, services, and activities
because she is intersex; and that the supervisory personnel are failing to
provide adequate training to staff in responding to intersex inmates. Liberally
construing the Plaintiff’s claims, the Court concludes that she has sufficiently
asserted a claim so as to pass initial review against Defendants Buffaloe,
Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, Jordan-Williams, Miller,
Silver, Waldroop, and Watson.10
D.

Supplemental Jurisdiction

Federal district courts may entertain claims not otherwise within their
adjudicatory authority when those claims “are so related to claims ... within
[federal-court competence] that they form part of the same case or
controversy.” 28 U.S.C. § 1367(a). To exercise supplemental jurisdiction, a
court must find that “[t]he state and federal claims ... derive from a common
nucleus of operative fact” where a plaintiff “would ordinarily be expected to
try them all in one judicial proceeding.” United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 725 (1966).

Like the Plaintiff’s § 1983 claims, it is not entirely clear whether the Plaintiff is pursuing
ADA claims against Defendants Buffaloe, Honeycutt, Jordan-Williams, and Watson in
their individual capacities or their official/supervisory capacities. Again, the Court finds
that this issue would be best addressed in the context of a Rule 12 motion to dismiss
rather than on initial review.
10

10
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Here, the Plaintiff asserts that her rights under North Carolina
Constitution Article 1, § 27 are being violated for the same reasons that the
Defendants violated her Eighth Amendment rights. [See Doc. 1-1 at 37].
The Plaintiff’s Eighth Amendment claims passed initial review, and the
Plaintiff’s § 27 claims will likewise be allowed to proceed against NCDPS and
Defendants Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks Honeycutt,
Jordan-Williams, Miller, Silver, Waldroop, and Watson at this time.
IV.

CONCLUSION
In sum, the Complaint has passed initial review against Defendants

Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, JordanWilliams, Miller, Silver, Waldroop, and Watson, and the Court exercises
supplemental jurisdiction over the Plaintiff’s claims under the North Carolina
Constitution against those Defendants as well as against NCDPS, as
described in this Order.

The remaining claims are dismissed without

prejudice.
In light of the Court’s determination that this case passes initial review
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 NCDPS, and Defendants Buffaloe, Buchanan, Carver, Fox, Goforth,

11
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Hicks, Honeycutt, Jordan-Williams, Miller, Silver, Waldroop, and Watson,
who are alleged to be current or former employees of NCDPS.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The § 1983 and ADA claims have passed initial review against
Defendants Buffaloe, Buchanan, Carver, Fox, Goforth, Hicks,
Honeycutt, Jordan-Williams, Miller, Silver, Waldroop, and Watson,
and the Court exercises supplemental jurisdiction over the Plaintiff’s
claims under the North Carolina Constitution against those
Defendants as well as against NCDPS, as described in this Order.
2. The remaining claims are DISMISSED WITHOUT PREJUDICE.
3. The Clerk shall commence the procedure for waiver of service as
set forth in Local Civil Rule 4.3 for NCDPS and Defendants Buffaloe,
Buchanan, Carver, Fox, Goforth, Hicks, Honeycutt, JordanWilliams, Miller, Silver, Waldroop, and Watson, who are alleged to
be current or former employees of NCDPS.
IT IS SO ORDERED.

Signed: January 16, 2023

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