Brower v. Lewis et al

Filing 12

ORDER re 2 MOTION (Sealed - Participants) to Proceed in forma pauperis . Signed by District Judge Frank D. Whitney on 3/5/2013. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-743-FDW
KEVIN NICHOLAS BROWER,

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Plaintiff,
v.
BOB LEWIS, Director of Prisons, North
Carolina Dept. of Public Safety;
LAWRENCE PARSONS, Administrator
of Lanesboro Correctional Institution;
KORY DALRYMPLE, Assistant
Superintendent of Programs, Lanesboro,
Correctional Institution; GLENN
KINNEY, Unit Manager, Lanesboro
Correctional Institution; RICKY
HUTCHINGS, Officer, Lanesboro
Correctional Institution; PAUL WOODS,
Officer, Lanesboro Correctional
Institution; KEARRY HINSON, Officer,
Lanesboro Correctional Institution;
BRANDON DECKER, Officer, Lanesboro,
Correctional Institution; STEPHANIE
MILLER, Officer, Lanesboro Correctional
Institution, et al.,

ORDER

THIS MATTER is before the Court on an initial review of Plaintiff’s Motion to Proceed
Without Prepayment of Fees or Costs (“Application”), (Doc. No. 2), and Plaintiff’s Amended
Complaint, filed by and through counsel, pursuant to 42 U.S.C. §§ 1983 & 1985. (Doc. No. 6).
The Court has examined Plaintiff’s Application, and finds that it should be allowed as it does not
appear that he has sufficient funds to prepay the filing fees or costs of service in this matter.
I.

BACKGROUND

In his Amended Complaint, Plaintiff alleges that on November 10, 2009, he was
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severely beaten by one or more defendant officers while incarcerated at Lanesboro Correctional
Institution.1 Plaintiff alleges that Defendants Kinney, Woods, and Hutchings were beating
Warren, a fellow inmate, and Plaintiff intervened after noting that other defendant officers were
becoming involved in the fray. According to Plaintiff, he intervened in the scuffle because he
was concerned for the safety and well-being of Warren. As the melee grew more frantic, Plaintiff
alleges that he was struck by Defendant Hinson with his baton on his legs and he fell to the
ground. Plaintiff was then placed face down in handcuffs and defendant officers—Hinson,
Woods, Hutchings, and other officers unknown—began kicking “Plaintiff in the face, ribs and
hips until Plaintiff heard a crack and everything went silent.” (Doc. No. 6 ¶ 36). Plaintiff asserts
that he suffered head injuries and had to be treated at a nearby hospital to close the open wound
in his head.
After being treated at the hospital, Plaintiff was charged at the magistrate’s office with
three counts of assault on a government official and one count of felony inciting a riot. Plaintiff
pled guilty to two counts of assault on a government official and the remaining counts were
dismissed. (Id. ¶ 41). As a result of the altercation described above, Plaintiff alleges that he
continues to suffer serious brain trauma, headaches, loss of memory and a misshapen skull.
In the wake of these allegations, Plaintiff contends that Defendants Decker and Miller
conspired to successfully destroy video evidence of the fray of November 10. In addition to this
allegation of intentional misconduct, Plaintiff alleges that Decker and Miller failed to follow
known policy of the North Carolina Department of Public Safety in securing video footage.
Plaintiff states that he challenged his contention of excessive force through the grievance
The Court here provides only a summary of the allegations from Plaintiff’s Amended
Complaint which are taken as true for the purpose of this initial review.
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procedure but his efforts were unsuccessful. Plaintiff’s Amended Complaint alleges further acts
of retaliation in the form of forced segregation of three years duration and censorship of reading
materials.
II.

STANDARD OF REVIEW

Federal courts are required to conduct an initial screening of the allegations contained in
a complaint filed by a prisoner against a governmental entity, employee, or official to determine
whether the action: (1) is frivolous or malicious, (2) fails to state a claim on which relief may be
granted, or (3) or seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1) & (2). A claim is frivolous when it “lacks an arguable basis either in law
or in fact.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). A complaint fails to state a claim
when it does not include “enough factual matter (when taken as true)” to “sho[w] that the pleader
is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (internal citation
omitted). In determining whether a plaintiff has stated a claim for relief, the court presumes the
truth of a plaintiff’s non-frivolous factual allegations, construing them in the light most favorable
to the plaintiff. Denton v. Hernandez, 504 U.S. 25, 33 (1992).
III.

DISCUSSION

In order to properly state a claim under 42 U.S.C. § 1983, a plaintiff must provide
allegations that (1) a person acting under color of state law (2) deprived him of a right, privilege,
or immunity “secured by the Constitution and laws” of the United States. Zombro v. Baltimore
City Police Dept., 868 F.2d 1364, 1366 (4th Cir. 1989) (quoting Chapman v. Houston Welfare
Rights Org., 441 U.S. 600 (1979)).

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Plaintiff has pled claims of cruel and unusual punishment through the use of excessive
force, and confinement to segregation for three years, in violation of the Eighth Amendment;
violation of his due process rights, in violation of the Fourteenth Amendment through the
destruction of video footage of the November 10th incident; and violation of his right to Free
Speech and Expression through the censorship of certain reading materials described in the
Amended Complaint, in violation of the First Amendment.
Plaintiff’s allegations, taken as true at this stage, set out a colorable claim for relief and
the Court finds that the defendants should file an answer or other responsive pleading as
provided for by the Federal Rules of Civil Procedure. See Section 1915A(b).
IV.

CONCLUSION

IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s application to proceed without prepayment of fees or costs is
ALLOWED. (Doc. No. 2).

2.

The Clerk of Court is directed to prepare process for delivery to the U.S. Marshals
Service and the U.S. Marshals Service is directed to serve such process on the
defendants at the expense of the U.S. Government.

3.

Defendants’ should file an answer or response as provided for in the Federal
Rules of Civil Procedure.

IT IS SO ORDERED.
Signed: March 5, 2013

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