Caballero v. Boney et al
Filing
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ORDER Plaintiffs excessive force claim survives initial review with regards to Defendants Boney, Burke, Heh, Mack, McIntosh, Smith, and Holder, and the discrimination claim survives initial review as to Defendant Smith. The r emainder of the Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). IT IS FURTHER ORDERED THAT the Clerk of Court shall commence the procedure for waiver of service as set forth in Local Rule 4.3 for Defendants Boney, Burke, Heh, Mack, McIntosh, Smith, and Holder, who are current or former employees of NC DPS.. Signed by Chief Judge Frank D. Whitney on 5/17/18. (Pro se litigant served by US Mail.)(clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-151-FDW
ALFONZO CABALLERO,
)
)
Plaintiff,
)
)
vs.
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)
PHILLIP BONEY, et al.,
)
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Defendants.
)
__________________________________________)
ORDER
THIS MATTER is before the Court on initial review of the Complaint,1 (Doc. No. 1).
Plaintiff has been granted leave to proceed in forma pauperis. (Doc. No. 4).
I.
BACKGROUND
Pro se Plaintiff, a North Carolina prisoner, filed this action pursuant to 42 U.S.C. § 1983.
He is complaining about an incident that occurred at the Lanesboro Correctional Institution on
June 12, 2014.2 He names as Defendants the following Lanesboro C.I. employees: Officer Phillip
Boney, Officer Burke, Officer Heh, Officer Mack, Officer McIntosh, Officer Smith, and Officer
Holder.
Liberally construing the Complaint and accepting the allegations as true, Plaintiff was
being escorted to the rec yard in handcuffs when Officer Smith called him a “wetback m…. f….r
Mexican,” threw him to the floor, placed his knee on Plaintiff’s back, held his head still, and beat
him by hitting various parts of his body. (Doc. No. 1 at 4). Officers Boney, Mack, McIntosh, Goss,
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Plaintiff filed a Motion for Leave to File an Amended Complaint on November 14, 2017. (Doc. No. 10).
The Court granted the motion on November 29, 2017, and gave Petitioner 14 days to do so. (Doc. No. 11). That
deadline is long expired and Plaintiff has not filed an Amended Complaint to date.
2
Plaintiff’s reference to June 12, 2015, is apparently an error. See (Doc. No. 1 at 5); (Doc. No. 12 at 1).
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Holder, Bruce, Burke, Heh, and Smith all joined in the beating. Plaintiff was not a threat to the
officers and did not resist. The beating was an act of retaliation and occurred after a long history
of harassment, bias, racial slurs, threats, intimidation, and prejudice toward Mexicans. Plaintiff
sustained fractures to his right hand, one foot, and shoulder, and injuries to his left hand, arms,
head, and face. He has problems walking due to these injuries. Plaintiff seeks punitive damages of
$50,000 from each Defendant.
II.
STANDARD OF REVIEW
A “court shall dismiss [a prisoner's] case at any time if the court determines that ... the
action or appeal ... fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). A complaint should not be dismissed for failure to state a claim “unless ‘after
accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable
factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him to relief.’” Veney v. Wyche, 293 F.3d
726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
In its frivolity review, a 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).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). 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). A pro se complaint must
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still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.
(1)
DISCUSSION
Unnamed Individuals
The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action
shall include the names of all the parties.” Fed. R. Civ. P. 10(a); see 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.”). Although pro se litigants are entitled to have their pleadings
liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel
or paralegal to pro se litigants,” Pliler v. Ford, 542 U.S. 225 (2004).
The body of the Complaint refers to individuals who are not named as defendants in the
caption as required by Rule 10(a). This failure renders Plaintiff’s allegations against them nullities.
See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting
motion to dismiss for individuals who were not named as defendants in the compliant but who
were served). Therefore, this cause cannot proceed on any claims against individuals who are not
named in the caption of the Complaint and, to the extent Plaintiff intended to assert claims against
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them, they are dismissed.3
(2)
Excessive Force
“[T]he treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment,” Helling v. McKinney, 509 U.S.
25, 31 (1993). In its prohibition of “cruel and unusual punishments,” the Eighth Amendment places
restraints on prison officials, who may not, for example, use excessive physical force against
prisoners. Hudson v. McMillian, 503 U.S. 1, 1 (1992).
A prison official violates the Eighth Amendment only when two requirements are met.
First, the deprivation alleged must be, objectively, “sufficiently serious,” Wilson v. Seiter, 501
U.S. 294, 298 (1991); see also Hudson, 503 U.S. at 5, and must result in the denial of “the minimal
civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The second
requirement is that a prison official must have a “sufficiently culpable state of mind.” Wilson, 501
U.S. at 297, 302-03; Hudson, 503 U.S. at 5, 8. “[T]he use of excessive physical force against a
prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer
serious injury.” Hudson, 503 U.S. 1, 4 (1992); see Wilkins v. Gaddy, 559 U.S. 34, 34 (2010). The
“core judicial inquiry,” is not whether a certain quantum of injury was sustained, but rather
“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Hudson, 503 U.S. at 7. “When prison officials maliciously and
sadistically use force to cause harm,” the Court recognized, “contemporary standards of decency
always are violated ... whether or not significant injury is evident. Otherwise, the Eighth
Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting
3
Plaintiff has previously been cautioned that piecemeal amendments to the Complaint will not be permitted.
See (Doc. No. 11 at 4).
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less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9, 13–14.
Plaintiff sufficiently alleges that Defendants Boney, Burke, Heh, Mack, McIntosh, Smith,
and Holder used violent force against him when he was not resisting. These allegations state a
facially sufficient claim for the use of excessive force.
Therefore, the Eighth Amendment excessive force/failure to intervene claims will be
permitted to proceed.
(3)
Retaliation
Prison officials may not retaliate against an inmate for exercising a constitutional right. See
Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir.1978). To succeed on such a claim, a plaintiff
must first allege that “the retaliatory act was taken in response to the exercise of a constitutionally
protected right....” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Thereafter, a plaintiff must
demonstrate that he suffered some adverse impact or actual injury. See American Civil Liberties
Union of Maryland, Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993) (citing Huang v.
Board of Governors of Univ. of North Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990)). In addition,
a plaintiff must come forward with specific evidence “establish[ing] that but for the retaliatory
motive the complained of incident[s] ... would not have occurred.” Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir.1995); accord Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir.1991) (plaintiff must
show that action would not have occurred “but for” the alleged reprisal); Collinson v. Gott, 895
F.2d 994, 1002 (4th Cir. 1990) (Phillips, J., concurring); McDonald v. Hall, 610 F.2d 16, 18–19
(1st Cir.1979). In the prison context, such claims are treated with skepticism because “[e]very act
of discipline by prison officials is by definition ‘retaliatory’ in the sense that it responds directly
to prisoner misconduct.” Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
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Plaintiff states that he was retaliated against but fails to support this vague and conclusory
allegation with any facts. He does not allege that the retaliatory act was taken in response to the
exercise of a constitutionally protected right, and therefore, this claim is facially insufficient to
proceed.
Therefore, Plaintiff’s retaliation claim is dismissed.
(4)
Discrimination
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall ...
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. The equal protection requirement “does not take from the States all power of
classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271 (1979), but “keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, a § 1983 plaintiff “must
first demonstrate that he has been treated differently from others with whom he is similarly situated
and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If he makes this showing, “the court proceeds to
determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”
Id. Ordinarily, when a state regulation or policy is challenged under the Equal Protection Clause,
unless it involves a fundamental right or a suspect class, it is presumed to be valid and will be
sustained “if there is a rational relationship between the disparity of treatment and some legitimate
governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–320 (1993). The Fourth Circuit does
not recognize prisoners as “a suspect class.” Roller v. Gunn, 107 F.3d 227, 233 (4th Cir. 1997).
When equal protection challenges arise in a prison context, however, courts must adjust the level
of scrutiny to ensure that prison officials are afforded the necessary discretion to operate their
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facilities in a safe and secure manner. See Morrison, 239 F.3d at 654–55. In a prison context,
therefore, the court must determine whether the disparate treatment is “reasonably related to [any]
legitimate penological interests.” Shaw v. Murphy, 532 U.S. 223, 225 (2001). This deferential
standard applies “even when the alleged infringed constitutional right would otherwise warrant
higher scrutiny;” however, this more deferential review does not ignore the concerns that justify
application of a heightened standard outside of the prison context. Morrison, 239 F.3d at 655-56.
Although racial discrimination claims are actionable, merely conclusory allegations of
discrimination are insufficient to state a claim under § 1983. Absent some factual evidence, the
court will not look behind the determinations of prison officials on mere accusations that they are
racially motivated. See Chapman v. Reynolds, 378 F.Supp. 1137, 1140 (W.D.Va.1974); Williams
v. Meese, 926 F.2d 994, 998 (10th Cir.1991) (conclusory allegation of racial discrimination in
confiscation of excess property insufficient to state claim because no allegation was made that
prisoners of another race were allowed to retain more property); Gibson v. McEuers, 631 F.2d 95,
98 (7th Cir.1980) (conclusory allegations of racial discrimination insufficient to state claim).
Plaintiff’s claim that Officer Smith called him derogatory names while throwing Plaintiff
to the floor then beating him states a facially sufficient claim of racial discrimination. However,
Plaintiff’s general allegations that Defendants threatened him, called him derogatory names, and
harassed him because he is Mexican, are too vague and conclusory to proceed.
Therefore, Plaintiff’s discrimination claim will proceed against Defendant Smith, but will
be dismissed as to the remaining Defendants.
IV.
CONCLUSION
For the reasons stated herein, Plaintiff’s excessive force claim survives initial review as to
Defendants Boney, Burke, Heh, Mack, McIntosh, Smith, and Holder, and his discrimination claim
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survives initial review as to Defendant Smith; all other claims are dismissed.
IT IS, THEREFORE, ORDERED that:
1.
Plaintiff’s excessive force claim survives initial review with regards to Defendants
Boney, Burke, Heh, Mack, McIntosh, Smith, and Holder, and the discrimination
claim survives initial review as to Defendant Smith.
2.
The remainder of the Complaint is dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
3.
IT IS FURTHER ORDERED THAT the Clerk of Court shall commence the
procedure for waiver of service as set forth in Local Rule 4.3 for Defendants
Boney, Burke, Heh, Mack, McIntosh, Smith, and Holder, who are current or
former employees of NC DPS.
Signed: May 17, 2018
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