Dale v. North Carolina Department of Public Safety et al
Filing
11
ORDER that: the #1 Complaint passes initial review on Pltf's Eighth Amendment claims against Defts Campbell, Orders, and Allen, and the Court will exercise supplemental jurisdiction over Pltf's North Carolina assault claim against Deft Campbell; the claims against NCDPS, the Foothills CI, and the 1983 claims for damages against the Defts in their official capacities are DISMISSED WITH PREJUDICE; the remaining claims are DISMISSED WITHOUT PREJUDICE; Pltf shall have 30 days in which to amend his Complaint in accordance with the terms of this Order; if Pltf fails to amend the Complaint in accordance with this Order and within the time limit set by the Court, this action will proceed only on the claims identified in this Order; Pltf's #10 "MOTION for Issuance and Service of Summons and Complaint..." is DENIED AS MOOT; and the Clerk is instructed to mail Pltf a blank 1983 form, an Opt-In/ Opt-Out form pursuant to the Standing Order in Misc. Case. No. 3:19-mc-00060-FDW, and a copy of this Order. (Amended Complaint due by 2/17/2023.) Signed by Chief Judge Martin Reidinger on 1/17/2023. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00259-MR
DAMETRI DALE,
)
)
Plaintiff,
)
)
vs.
)
)
NORTH CAROLINA DEPARTMENT
)
OF PUBLIC SAFETY, et al.,
)
)
Defendants.
)
_______________________________ )
ORDER
THIS MATTER is before the Court on initial review of the Complaint
[Doc. 1]. Also pending is the Plaintiff’s pro se “Motion for the Issuance and
Service of Summons and Complaint….” [Doc. 10]. The Plaintiff is proceeding
in forma pauperis. [Doc. 7].
I.
BACKGROUND
The pro se Plaintiff, a prisoner of the State of North Carolina, has
recently filed at least five civil rights actions in this Court, several of which
appear to suffer from serious deficiencies and/or contain duplicative claims.1
1
See Case Nos. 1:22-cv-234-MR; 1:22-cv-259-MR; 3:22-cv-597-MR; 3:22-cv-641-MR;
3:22-cv-642-RJC-DSC; see also Case No. 3:22-cv-580-MR (seeking habeas relief).
Case Nos. 1:22-cv-234 and 1:22-cv-259 address incidents that allegedly occurred at the
Foothills Correctional Institution, and Case Nos. 3:22-cv-597, 3:22-cv-641, and 3:22-cv642 address alleged improprieties with regard to the Plaintiff’s criminal prosecution.
Case 1:22-cv-00259-MR Document 11 Filed 01/18/23 Page 1 of 12
He filed the instant action pursuant to 42 U.S.C. § 1983 addressing incidents
that allegedly occurred at the Foothills Correctional Institution.2 [Doc. 1].
The Plaintiff names as Defendants the North Carolina Department of Public
Safety (NCDPS) and Foothills CI, as well as the following Defendants in their
individual and official capacities: Brandeshawn Harris, identified as the
NCDPS commissioner; Teresa Jardon, identified as the warden of Foothills
CI; Doug Newton, identified as a Foothills CI associate warden; Deorain
Carson, a Foothills CI employee for whom no job or title is provided; Brandon
Orders, identified as a Foothills CI correctional sergeant; Chadwick
Roseboro, identified as a Foothills CI case manager; Robert Campbell,
identified as a Foothills CI lieutenant; and Eris Allen, identified as a Foothills
CI correctional officer. The Plaintiff describes his claims as: “1) California v.
Faretta – self representation; 2) cruel and unusual punishment; and 3)
equality and rights of people.” [Doc. 1 at 4]. He claims that his rights were
violated at Foothills CI on August 15, 2022, October 18, 2022, and November
10, 11, 17, and 18, 2022. [Id. at 7].
For injuries, the Plaintiff claims “I suffer from neck and back spasms.
Also nerves in my hand hurts and causes discomfort. Nurses have on given
me non-asprin and ibuprofen. I have scars on my wrist. I suffer from
2
He is presently incarcerated at the Marion Correctional Institution.
2
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physical, mental, emotional and other injuries.” [Id. at 13] (errors
uncorrected). The Plaintiff seeks monetary relief and “any declaratory relief
the Court deems appropriate.” [Id.].
II.
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 “frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A
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 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
(1972).
However, the liberal construction requirement will not permit a
district court to ignore a clear failure to allege facts in his Complaint which
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set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III.
DISCUSSION
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).
As a threshold matter, the NCDPS is not a proper defendant in a §
1983 action. Neither the State of North Carolina nor its agencies constitute
“persons” subject to suit under Section 1983. Will v. Mich. Dep’t of State
Police, 491 U.S. 58 (1989). Furthermore, the Eleventh Amendment bars the
Plaintiff’s suit for money damages against the State of North Carolina and its
various agencies. See Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.
2003). As such, the Plaintiff’s claim against the NCDPS fails, and this
Defendant will be dismissed.
Similarly, Defendant Foothills is not a proper Defendant in this matter
because it is not a “person” subject to suit under § 1983.
See Fox v.
Harwood, 2009 WL 1117890 at *1 (W.D.N.C. April 24, 2009) (NCDPS
facilities are not “persons” under § 1983).
As such, the Plaintiff’s claim
against the Foothills CI fails, and this Defendant will be dismissed.
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The Plaintiff purports to sue Defendants, who are state officials, in their
individual and official capacities. However, “a suit against a state official in
his or her official capacity is not a suit against the official but rather is a suit
against the official’s office.” Will, 491 U.S. at 71. Because a state is not a
“person” under § 1983, state officials acting in their official capacities cannot
be sued for damages thereunder. Allen v. Cooper, No. 1:19-cv-794, 2019
WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, as noted, the
Eleventh Amendment bars suits for monetary damages against the State of
North Carolina and its various agencies. See Ballenger, 352 F.3d at 844-45.
As such, the Plaintiff’s claims for damages against the Defendants in their
official capacities do not survive initial review and will be dismissed.
The body of the Complaint contains allegations against individuals who
are not named as defendants in the caption as required by Rule 10(a) of the
Federal Rules of Civil Procedure. 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. 3:18cv-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
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individuals not named as Defendants are therefore dismissed without
prejudice.
The Plaintiff also uses vague terms rather than identifying the
individual(s) involved in each allegation. [See, e.g., Doc. 1 at 8-12 (referring
to “staff” and a “team”)]. 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 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). Moreover, to the extent that these allegations refer to non-parties,
they are nullities for the reasons discussed supra.
The Plaintiff appears to assert Eighth Amendment claims against
Defendants Campbell, Orders, and Allen. 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, 319 (1986).
To establish an Eighth
Amendment claim, an inmate must satisfy both an objective component–that
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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 32021.
The Fourth Circuit addresses a failure to intervene claim as a theory of
“bystander liability” wherein there is “an omission to act ... coupled with a
duty to act.” Randall v. Prince George’s Cnty., 302 F.3d 188, 202 (4th Cir.
2002). A “bystander officer” could be liable for his or her failure to act if he
or she: “(1) knows that a fellow officer is violating an individual’s constitutional
rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses
not to act.” Id. at 204.
Taking the allegations as true for the purposes of initial review, and
construing all inferences in the Plaintiff's favor, the Court concludes that the
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Plaintiff’s Eighth Amendment claims against Defendants Campbell, Orders,
and Allen have passed initial review in that they are not clearly frivolous.3
Further, the Plaintiff’s claims against Defendants Jardon and Harris
appear to be duplicative of his claims against those Defendants in a
previously-filed action, Case No. 1:22-cv-234. [See 1:22-cv-234, Doc. 1 at
4-5].
In that case, the Plaintiff asserts a claim of cruel and unusual
punishment under the Eighth Amendment, and he also purports to claim
violations of “pro se/self representation Faretta; attorney client privilege;
mailing services; liberty; [and] defamation” that allegedly occurred between
July 21, 2022 and October 24, 2022 at Foothills. [Id. at 5-6].
Here, the Plaintiff’s claims against Defendants Jardon and Harris are
so overlapping and duplicative of the claims in Case No. 1:22-cv-234 that
the Court cannot allow them to proceed simultaneously.
Because the
Plaintiff filed the proceedings in the other case first, the Court will dismiss the
claims against Defendants Jardon and Harris from the instant action without
prejudice. The Complaint in Case No. 1:22-cv-234 was dismissed on initial
review, and the Plaintiff has been granted the opportunity to amend in that
3
The Court liberally construes the Complaint as raising an assault claim against
Defendant Campbell, over which it will exercise supplemental jurisdiction at this time. See
28 U.S.C. § 1367(a).
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case. He may raise all of the claims he wishes to assert in that action in his
Amended Complaint in that case.
The rest of the Plaintiff’s allegations are unattributed to any Defendant,
are vague and conclusory, and/or are so devoid of factual support that they
fail the most basic pleading requirements. 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 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); [see also 1:22-cv-234, Doc. 10 at 5-6]. As such, these
claims are dismissed without prejudice.
The Court will allow the Plaintiff to amend his Complaint, if he so
chooses, to correct the deficiencies identified in this Order and to otherwise
properly state a claim upon which relief can be granted. The Plaintiff is
directed to carefully review the Order of Instructions [Doc. 3] before filing any
further documents with the Court. He is admonished that he may not bring
multiple unrelated claims against unrelated defendants in any single action.
See generally Fed. R. Civ. P. 18, 20; George v. Smith, 507 F.3d 605, 607
(7th Cir. 2007) (noting that “[u]nrelated claims against different defendants
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belong in different suits,” to prevent prisoners from dodging the fee payment
or three-strikes provisions in the Prison Litigation Reform Act). He is further
cautioned that the repeated filing of frivolous or duplicative actions
may result in the imposition of sanctions and/or a prefiling injunction
that would limit the Plaintiff’s ability to file further lawsuits in this Court.
Should the Plaintiff fail to timely file a superseding Amended Complaint in
accordance with this Order, the case will proceed only on the claims
identified in this Order.
The Plaintiff’s pending “Motion for the Issuance and Service of
Summons and Complaint…” [Doc. 10] is denied as moot because the Court
will order service at the appropriate time as a matter of course; no motion
requesting service is necessary.
IV.
CONCLUSION
For the foregoing reasons, the Complaint passes initial review on the
Plaintiff’s Eighth Amendment claims against Defendants Campbell, Orders,
and Allen, and the Court will exercise supplemental jurisdiction over the
Plaintiff’s North Carolina assault claim against Defendant Campbell. The
claims against NCDPS, the Foothills CI, and the § 1983 claims for damages
against the Defendants in their official capacities are dismissed with
prejudice, and the remaining claims are dismissed without prejudice.
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The Court will allow the Plaintiff thirty (30) days to amend his
Complaint, if he so chooses, to correct the deficiencies identified in this Order
and to otherwise properly state a claim upon which relief can be granted.
Any Amended Complaint will be subject to all timeliness and procedural
requirements and will supersede the Complaint. Piecemeal amendment will
not be permitted. Should the Plaintiff fail to timely amend his Complaint in
accordance with this Order, the case will proceed only on the claims
identified in this Order.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Complaint passes initial review on the Plaintiff’s Eighth
Amendment claims against Defendants Campbell, Orders, and
Allen, and the Court will exercise supplemental jurisdiction over
the Plaintiff’s North Carolina assault claim against Defendant
Campbell.
2. The claims against NCDPS, the Foothills CI, and the § 1983
claims for damages against the Defendants in their official
capacities are DISMISSED WITH PREJUDICE.
3. The remaining claims are DISMISSED WITHOUT PREJUDICE.
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4. 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
proceed only on the claims identified in this Order.
5. The Plaintiff’s “Motion for the Issuance and Service of Summons
and Complaint…” [Doc. 10] is DENIED AS MOOT.
The Clerk is respectfully instructed to mail the Plaintiff a blank § 1983
form, an Opt-In/ Opt-Out form pursuant to the Standing Order in Misc. Case.
No. 3:19-mc-00060-FDW, and a copy of this Order.
IT IS SO ORDERED.
Signed: January 17, 2023
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