Givens v. Aaron et al

Filing 14

ORDER that Plaintiffs Complaint, re 1 , survives initial review as to all Defendants except Defendant Mitchell.. Signed by Chief Judge Frank D. Whitney on 3/10/2015. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-378-FDW
LEONARD A. GIVENS,

)
)
Plaintiff,
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v.
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)
DAVID AARON, et al.,
)
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Defendants.
)
__________________________________________)

ORDER

THIS MATTER is 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) and 1915A. On July 9, 2014,
the Court entered an order waiving the initial filing fee and directing monthly payments to be
made from Plaintiff’s prison account. (Doc. No. 6). Thus, Plaintiff is proceeding in forma
pauperis.
I.

BACKGROUND

Pro se Plaintiff Leonard A. Givens, a North Carolina state court inmate currently
incarcerated at Brown Creek Correctional Institution in Polkton, North Carolina, filed this action
on July 9, 2014, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendants violated his right
not to be subjected to cruel and unusual punishment under the Eighth Amendment to the U.S.
Constitution based on an alleged sexual assault while he was incarcerated at Lanesboro
Correctional Institution in Polkton, North Carolina. In his Complaint, Plaintiff names the
following persons as Defendants: (1) David Aaron, identified as a Unit Manager at Lanesboro;
(2) R. David Mitchell, identified as the Correctional Administrator at Lanesboro; (3) John
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Reynolds, identified as a Lieutenant at Lanesboro; (4) and John Does 1 through 5, identified as
correctional officers at Lanesboro and members of the Prison Emergency Response Team
(“PERT”).
The following allegations by Plaintiff are taken as true for the purpose of this initial
review:
On December 12, 2013, at around 11:30 a.m., John Doe 1 came to Plaintiff’s door,
knocked on his cell door, ordered him to get dressed, and told him he was being taken to “Master
Control.” (Doc. No. 1 at 5-6). Plaintiff alleges that he began to get dressed as ordered and was
escorted to Master Control by John Does 1 through 5. (Id. at 6). Once Plaintiff got there,
Defendant Aaron said to Plaintiff, “We’re going to search you and I don’t care if it’s done by
force. It’s going to get done.” (Id.). Plaintiff was taken to a “change-out cell” by John Does 2
through 5 and locked in there. (Id.). About fifteen minutes later, Defendant Reynolds came with
two handheld cameras and gave one to Defendant Aaron. John Does 2 through 5 then came
inside the change-out cell, stood Plaintiff up, and then laid him face down on the floor. (Id.).
John Does 2 through 5 held Plaintiff’s hands and feet so he couldn’t move while John Doe 1 took
out a knife and began cutting Plaintiff’s pants and t-shirt off of him. (Id.). Defendants Reynolds
and Aaron both recorded this on their handheld cameras. (Id.). John Doe 2 began deliberately
twisting Plaintiff’s wrist and arm as if he was trying to break it, causing Plaintiff to scream, “Oh
my wrist!” (Id.). John Doe 2 continued twisting Plaintiff’s wrist and arm until John Doe 1
finished cutting off Plaintiff’s pants and t-shirt. (Id.). Plaintiff was not resisting in any way
during this time. (Id.). Plaintiff was then rolled onto his side by John Does 2 through 5. (Id.).
John Doe 1 pulled Plaintiff’s boxers open, stuck his hands inside Plaintiff’s boxers, grabbed
Plaintiff’s penis, and began stroking Plaintiff’s penis in an up-and-down motion. (Id.). John
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Doe 1 then began to fondle and squeeze Plaintiff’s testicles and he moved his hands further
between Plaintiff’s legs to his anus. (Id.). John Does 2 through 5 then stood Plaintiff up. (Id.).
Another PERT correctional officer came over and began touching the lining of Plaintiff’s boxers
by his thighs. (Id.). John Doe 1 then said, “Yeah, we got to take these off.” (Id.). John Doe 1
then pulled Plaintiff’s boxers down to his ankles, leaving Plaintiff standing naked, while being
recorded by Defendants Reynolds and Aaron. (Id.). During these events, Plaintiff did not resist
or threaten the officers in any way or break any prison rules. (Id.). Since the incident, Plaintiff
filed numerous sick calls regarding the sexual assault.1 (Id.). Plaintiff alleges that Defendants’
conduct constituted cruel and unusual punishment in violation of Plaintiff’s Eighth Amendment
rights. (Id. at 7). Plaintiff seeks declaratory relief as well as compensatory and punitive
damages. (Id. at 5).
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).

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He also filed a grievance about the incident and pursued the grievance through Step Three,
thus exhausting his administrative remedies. See (Doc. No. 11 at 1-4).
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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

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 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). The Eighth Amendment
protects inmates from repetitive and harassing searches, and from sexual abuse. Schwenk v.
Hartford, 204 F.3d 1187, 1196-97 (9th Cir. 2000). Rape or other sexual assault perpetrated by a
guard against an inmate is offensive to human dignity and violates the Eighth amendment
regardless of lasting physical injury. Id.
First, as to Defendant David Mitchell, identified as the Correctional Administrator at
Lanesboro, Plaintiff does not allege any personal involvement by Defendant Mitchell, and he
cannot be held liable for the alleged acts of the other officers because liability under § 1983
cannot be based on respondeat superior. See Monell v. Department of Soc. Servs., 436 U.S. 658,
694 (1978) (stating that under § 1983, liability is personal in nature, and the doctrine of
respondeat superior does not apply). Thus, the Court will dismiss Defendant Mitchell from this
action.
Taking Plaintiff’s allegations as true for the purposes of this initial review, the Court
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finds that Plaintiff states an Eighth Amendment claim against Defendants Reynolds, Aaron, and
John Does 1 through 5. That is, Plaintiff’s Eighth Amendment claim survives as to John Doe 1,
the officer who actually perpetrated the alleged sexual assault. As to the remaining Defendants,
Plaintiff has sufficiently stated a claim against them for failure to intervene to stop the sexual
assault. See Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 202 (4th Cir. 2002).
Finally, as to John Does 1 through 5, Plaintiff states that he has been unable to determine
the identity of these officers. Although the discovery period has not commenced, this Court
authorizes Plaintiff to submit a limited discovery request to Defendants at this time, seeking the
names of the PERT officers who participated in the search of Plaintiff on December 12, 2013.
See FED. R. CIV. P. 26(d) (stating that a court may authorize discovery before the Rule 26(f)
conference for the parties’ and witnesses’ convenience and in the interest of justice). If Plaintiff
submits such limited discovery request to Lanesboro administrators, administrators shall respond
to the request within 20 days of receiving the request. Once Plaintiff receives the names of the
officers who participated in the search, Plaintiff will then need to amend the Complaint to
provide the actual names of these officers. Plaintiff will also need to prepare the summons forms
for service on these five Defendants and submit the forms to the Court. Plaintiff can later, during
the regular discovery period, submit discovery requests in order to identify the name of the John
Doe Defendant who allegedly perpetuated the sexual assault.
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A, as to all Defendants except for Defendant Mitchell.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review as to all Defendants except
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Defendant Mitchell.
2.

The Clerk shall send Plaintiff summons forms to fill out and return to the Court so
that service may be made on the remaining seven Defendants. When Plaintiff obtains
the names of the John Doe Defendants, Plaintiff shall then fill out the summons forms
as to these Defendants and submit them to the Court. Once the Court receives all of
the summons forms from Plaintiff, the Court will provide the forms to the U.S.
Marshal for service on all of the named Defendants.

3. The Clerk shall mail this Order to prison administrators at Lanesboro Correctional
Institution.

Signed: March 10, 2015

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