Person v. Lewis et al

Filing 16

ORDER Plaintiffs allegations re 1 Complaint survive initial review as to all Defendants except for Cobb.. Signed by District Judge Robert J. Conrad, Jr on 8/19/2014. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-407-RJC
TROY N. PERSON,

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Plaintiff,
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vs.
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ROBERT C. LEWIS, et al.,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER comes before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983, (Doc. No. 1). See 28 U.S.C. §§ 1915(e); 1915A.
I.

BACKGROUND
Pro se Plaintiff Troy N. Person is a prisoner of the State of North Carolina, currently

incarcerated at Harnett Correctional Institution. Plaintiff filed this action on July 2, 2012,
pursuant to 42 U.S.C. § 1983, naming the following seven individuals as Defendants: Captain
Covington, Correctional Officer, Lanesboro Correctional Institution (“Lanesboro”); Robert C.
Lewis, North Carolina Department of Public Safety, Director of the Division of Prisons; George
Solomon, North Carolina Department of Public Safety Central, Regional Director; Richard
Neely, Former Administrator, Lanesboro; Lawrence Parsons, Administrator, Lanesboro; Alvin
W. Keller, Jr., former Secretary of North Carolina Department of Public Safety; and S.R. Cobb,
Program Services Coordinator, Lanesboro.
Plaintiff alleges in the Complaint that in September 2010 and November 2010, while he
was incarcerated at Lanesboro, other inmates who were known gang members attacked and beat

him. (Doc. No. 1 at 5; 6). Plaintiff alleges that he had complained to Defendants before the
attacks that gang members had threatened to attack him, but that Defendants did nothing to
protect Plaintiff. See (Id. at 8-12). Plaintiff alleges that one assault by a gang member in
November 2010 was severe enough for Plaintiff to be sent to the hospital and that he was
operated on in the emergency room on November 13, 2010. (Id.). Plaintiff alleges that he
received 62 stitches and suffers from permanent nerve damage. (Id. at 7). Plaintiff alleges that
Defendants violated his Eighth Amendment rights by failing to protect him from a known threat
from the gang members in the prison. (Id.).
As to each named Defendant, Plaintiff alleges specifically that he had complained to
Defendant Covington about the threats from gang members when he arrived at Lanesboro on
September 1, 2010, and then again on October 20, 2010, but Covington took no action to protect
Plaintiff and that Covington even laughed at Plaintiff for complaining. (Id. at 6; 10). Plaintiff
alleges that he wrote a letter of complaint to Defendant Parsons on November 4, 2010, stating
that members of the Bloods and Crips gangs were threatening to kill Plaintiff, but Parsons did
nothing. (Id. at 6). Plaintiff alleges that Defendant Lewis is liable because he was notified of
Plaintiff’s complaints about the gang member threats before the assaults occurred, but he did
nothing. (Id. at 8). Defendant alleges that Defendants Keller and Solomon are liable because
they failed to protect Plaintiff after Plaintiff submitted a prison grievance on October 21, 2010.
(Id.). Plaintiff alleges that Defendant Cobb is liable because he sent a letter to Plaintiff dated
December 17, 2010, acknowledging that Plaintiff requested to be transferred away from
Lanesboro. (Id. at 8-9). Plaintiff alleges that Defendant Neely is liable because he refused to act
to protect Plaintiff after Plaintiff sought protection numerous times. (Id. at 9).

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II.

STANDARD OF REVIEW
Because 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.
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).
III.

DISCUSSION
“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). Still, not “every injury suffered by one
prisoner at the hands of another . . . translates into constitutional liability for prison officials
responsible for the victim’s safety.” Id. at 834. To state a claim for damages against a prison

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official for failure to protect from inmate violence, an inmate must plead facts that show (1) he
was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to his health and safety, and (3) the official’s
deliberate indifference caused him harm. Id. at 834.
“Deliberate indifference” in this context is a subjective standard in that the prison official
must actually have known or been aware of the excessive risk to inmate safety. Id. at 835-37. It
is not sufficient that the official should have known of the risk. Id. A plaintiff can, however,
prove an official’s actual knowledge of a substantial risk to his safety “in the usual ways,
including inference from circumstantial evidence.” Id. at 842. In other words, “a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk was
obvious.” Id.
Prison officials may escape liability for deliberate indifference claims in several ways.
They “might show, for example, that they did not know of the underlying facts indicating a
sufficiently substantial danger and that they were therefore unaware of a danger, or that they
knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave
rise was insubstantial or nonexistent.” Id. at 844. “In addition, prison officials who actually
knew of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.” Id. “Whether
one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot
be found liable” on a failure-to-protect claim. Id. at 845.
Here, the Court finds that Plaintiff sufficiently states a failure to protect claim against all
Defendants except for Cobb. As to Cobb, all that Plaintiff alleges is that Cobb sent Plaintiff a

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letter acknowledging Plaintiff’s request to be transferred away from Lanesboro. As for the other
Defendants, Plaintiff specifically alleges that each of the Defendants was notified of Plaintiff’s
complaints about the threats by gang members, and that they did nothing to protect Plaintiff from
the gang members’ attacks. It is true that respondeat superior is not applicable in Section 1983
actions, and discovery may reveal that some of the named Defendants did not know of the
alleged threats. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Such individuals
cannot be held liable based merely on their positions as supervisors. However, taking as true
Plaintiff’s allegations, and construing all inferences in his favor, the Court finds that Plaintiff’s
allegations survive initial review as to all Defendants except for Cobb.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s allegations survive initial review as to all Defendants except for Cobb. See 28
U.S.C. §§ 1915(e); 1915A.
2. The Clerk is directed to mail six summons forms to Plaintiff for Plaintiff to fill out and
identify the remaining Defendants in the summonses for service of process, and then
return the summonses to the Court.

Plaintiff is required to provide the necessary

information for the U.S. Marshal to effectuate service. That is, in filling out each
summons form, Plaintiff must attempt to identify the name of each Defendant, the
position and place of employment for each Defendant, as well as each Defendant’s
address, to the best of Plaintiff’s ability. Once the Court receives the summonses from
Plaintiff, the Clerk shall then direct the U.S. Marshal to effectuate service upon the
named Defendants.

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Signed: August 19, 2014

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