Webster v. Mitchell et al

Filing 9

ORDER denying 5 Motion for Preliminary Injunction; denying 7 Motion to Appoint Counsel, Plaintiffs Complaint survives initial review. Signed by Chief Judge Frank D. Whitney on 05/12/2015. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-13-FDW
TERRELLWEBSTER,

)
)
Plaintiff,
)
)
vs.
)
)
FNU MITCHELL, et al.,
)
)
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. Also pending
before the Court is Plaintiff’s Motion for Preliminary Injunction, (Doc. No. 5), and his Motion to
Appoint Counsel, (Doc. No. 7). On January 16, 2015, 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 Terrell Webster, a North Carolina prisoner currently incarcerated at
Lanesboro Correctional Institution, filed this action on January 12, 2015, 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 alleged excessive
force. In his Complaint, Plaintiff names as Defendants (1) FNU Mitchell, identified as the
Superintendent of Lanesboro; (2) FNU Martinez, identified as a correctional officer at
Lanesboro, and (3) FNU Riley, identified as a correctional officer at Lanesboro.
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The following allegations by Plaintiff are taken as true for the purpose of this initial
review:
On August 5, 2014, Defendants Martinez and Defendant Riley entered Moore
Unit E-Block and told Plaintiff Webster to cuff up so he could be escorted to the
segregation unit (Richmond unit) to do his disciplinary time. Plaintiff cuffed up
that’s when Defendant Riley pushed plaintiff down the [illegible] with force.
Plaintiff attempted to ask why he was pushed when he was picked up and
slammed to the floor by defendant Riley. Defendant Martinez pushed his knee
into plaintiff’s neck the whole time officers were telling him (Defendant
Martinez) to stop to no avail. Defendant Martinez punched plaintiff in the eye
with handcuffs on hand splitting plaintiff’s eye, the plaintiff was still in cuff[s]
behind his back, defendants carried plaintiff downstairs outside the block that’s
when plaintiff was once again lifted into the air and [illegible] onto his neck
which in the process could’ve been broken, other officers were still yelling for
both defendants to stop assaulting plaintiff again to no avail. Plaintiff was
brought to max-con/I-con unit (Anson unit) to be housed, he was later taken to
outside medical for injured neck, he was [brought] back and placed in full point
restraints for 2 days without any property or bed linen.
(Doc. No. 1 at 3-4). Plaintiff alleges that “Defendants Martinez and Riley used excessive force
against [Plaintiff] by slamming him while in cuffs and repeatedly beating and punching [him] in
the face and head with cuffs. Plaintiff was not violating any prison rules and was not acting
disruptively. Defendant Martinez’s and Riley’s actions violated [Plaintiff’s] rights under the 8 th
amendment to the United States constitution, and caused [Plaintiff] plain, suffering, physical
injury, and emotional distress.” (Id. at 5). Plaintiff seeks declaratory and injunctive relief as
well as compensatory and punitive damages. (Id. at 6).
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,
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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

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). 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.” Albers, 475
U.S. at 320-21. Furthermore, the Supreme Court has recently reiterated that “[a]n inmate who is
gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely
because he has the good fortune to escape without serious injury.” Wilkins v. Gaddy, 130 S.Ct.
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1175, 1178-79 (2010). In Wilkins v. Gaddy, the Supreme Court observed:
This is not to say that the “absence of serious injury” is irrelevant to the Eighth
Amendment inquiry. “[T]he extent of injury suffered by an inmate is one factor
that may suggest ‘whether the use of force could plausibly have been thought
necessary’ in a particular situation.” The extent of injury may also provide some
indication of the amount of force applied. As we stated in Hudson, not “every
malevolent touch by a prison guard gives rise to a federal cause of action.” “The
Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily
excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of
mankind.” An inmate who complains of a “push or shove” that causes no
discernible injury almost certainly fails to state a valid excessive force claim.
Injury and force, however, are only imperfectly correlated, and it is the latter that
ultimately counts.
Id. at 1178-79 (citations omitted).
The Court finds that Plaintiff’s Eighth Amendment excessive force claim against
Defendants Riley and Martinez survives initial review in that it is not clearly frivolous. As to
Defendant Mitchell, Plaintiff’s claim against Defendant Mitchell will be dismissed because
Plaintiff does not allege any personal participation by Defendant Mitchell as to the excessive
force allegations. Plaintiff’s claim against Defendant Mitchell is solely based on Mitchell’s
supervisory role as the Superintendent at Lanesboro, and it is well settled that respondeat
superior is not applicable in Section 1983 actions. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). Thus, Defendant Mitchell cannot be held liable based merely on his position as
a supervisor.
Next, as to Plaintiff’s motion for a preliminary injunction, Plaintiff seeks an order from
this Court requiring “defendants, their successors, agents, employers, and all persons acting in
concert with them to abolish the cruel and unusual punishment that the plaintiff went [through]
and provide plaintiff and other inmates with a safe environment.” (Doc. No. 5 at 2). To obtain a
preliminary injunction, the plaintiff must establish (1) that he is likely to succeed on the merits;
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(2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the
balance of equities tips in his favor; and (4) that an injunction is in the public interest. Real Truth
About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009). The Court has
carefully considered the above four factors and finds that a preliminary injunction is not warranted
at this time. Most significantly, Plaintiff has not provided facts supporting his conclusory
allegation that he continues to suffer from the threat of imminent harm. Moreover, Defendants
and all other employees at the prison are already under a duty not to violate the constitutional rights
of the inmates at Lanesboro. Thus, Plaintiff has not shown that granting his motion would advance
the public interest, given that there is already an ongoing, general duty for Lanesboro employees
not to violate prisoners’ constitutional rights. In sum, Plaintiff’s motion for a preliminary
injunction is denied.
Finally, as to Plaintiff’s motion to appoint counsel, Plaintiff contends that his imprisonment
will greatly limit his ability to litigate, the issues involved are complex, and he has limited access
to the law library and limited knowledge of the law. There is no absolute right to the appointment
of counsel in civil actions such as this one. Therefore, a plaintiff must present “exceptional
circumstances” in order to require the Court to seek the assistance of a private attorney for a
plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987).
Notwithstanding Plaintiff’s contentions to the contrary, this case does not present exceptional
circumstances that justify appointment of counsel. Therefore, Plaintiff’s motion to appoint counsel
will be denied.
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A as to Defendants Riley and Martinez, but Plaintiff’s claim against Defendant Mitchell is
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dismissed.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review as to Defendants Riley and
Martinez. Plaintiff’s claim against Defendant Mitchell is dismissed.
2. Plaintiff’s Motion for a Preliminary Injunction, (Doc. No. 5), is DENIED.
3. Plaintiff’s Motion to Appoint Counsel, (Doc. No. 7), is DENIED.
4.

The Clerk shall send Plaintiff summons forms to fill out and return to the Court so
that service may be made on Defendants Riley and Martinez. Once the Court
receives the summons forms from Plaintiff, the Court will provide the forms to the
U.S. Marshal for service on these Defendants.

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