Bobbitt v. Scott et al

Filing 10

ORDERED that the claims against Defendants Scott, Gaddy, and Mims, survive initial review under 28 U.S.C. § 1915. The remaining claims are dismissed. Plaintiff shall have 14 days in which to file a superseding Amended Co mplaint in accordance with this Order and all applicable rules and procedures. If Plaintiff fails to file an Amend Complaint within the time limit set by the Court, this action will proceed on the original Complaint, (Doc. No. 1).The Clerk is directe d to mail a copy of the Complaint, (Doc. No. 1), and a new Section 1983 complaint form to Plaintiff. IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons forms to Plaintiff for Plaintiff to fill out and return for service of process on De fendants Scott, Gaddy, and Mims. Once the Court receives the summons forms, the Clerk shall then direct the U.S. Marshal to effectuate service on Defendants.. Signed by Chief Judge Frank D. Whitney on 12/4/17. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-576-FDW
WILLIE T. BOBBITT,

)
)
Plaintiff,
)
)
vs.
)
)
FNU SCOTT, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 4).
I.

BACKGROUND

Pro se Plaintiff Willie T. Bobbitt has filed a civil rights suit pursuant to 42 U.S.C. § 1983
with regards to incidents that allegedly occurred at the Lanesboro Correctional Institution. He
names the following as Defendants: Correctional Officers Scott and Gaddy, Captain Mimms,
Program Director Georgia Hall-Martin, and the Mental Health Department.
Construing the Compliant liberally and accepting the allegations as true, Plaintiff has a
long history of mental health problems. He was in a cell on suicide watch in Lanesboro C.I.’s main
medical unit on March 16, 2016, and he was released from suicide watch the following day.
Defendant Scott came to Plaintiff’s cell asking him to stop knocking on the door. Plaintiff
repeatedly stated that he was no longer on suicide watch and needed clothes and was ready to go
back to his cell. Scott assaulted Plaintiff by saying “don’t make me come in there.” (Doc. No. 1 at
3).
A short time later, around 11:00 or 11:30 AM, Defendant Scott opened the food trap and
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sprayed Plaintiff and Plaintiff’s cell with MK-9 pepper spray. (Doc. No. 1 at 4). Scott then told
Gaddy to open Plaintiff’s cell and he entered, which caused Plaintiff to fear for his safety. Scott
continued to spray the entire can of MK-9 on Plaintiff as well as his personal mace, then punched
Plaintiff’s left eye twice. Plaintiff tried to cover himself with the suicide smock as Scott sprayed
him. Plaintiff was never aggressive toward Scott or himself and did nothing to provoke the type of
force that Scott used. During the assault Scott was yelling “I should kill you.” (Doc. No. 1 at 4).
Defendant Gaddy watched the assault and did nothing to stop it. Plaintiff received a red swollen
left eye, loss of vision and bruises.
After the assault, Plaintiff was removed from main medical and was taken to see Nurse
Wilkerson. Plaintiff received no medical treatment and was sent to his cell. Plaintiff did not receive
treatment for his exposure to mace until 3:00 PM when two other correctional officers took him
for treatment. Plaintiff was in a great deal of pain and discomfort from the MK-9 and mace. As a
result of the incident, Plaintiff fears for his life, has problems sleeping, and experiences stress,
depression and anxiety. Plaintiff sent numerous mental health requests yet received no help.
Plaintiff told Defendant Gaddy that he was going to write to his mother and newspapers
about being assaulted, and Gaddy said she would report it to Mims. Mims retaliated by rejecting
Plaintiff’s outgoing mail that was sealed for no justifiable reason, which caused Plaintiff to become
depressed and stressed. Hill-Martin retaliated by rejecting Plaintiff’s grievance “based on her lie.”
(Doc. No. 1 at 3). Plaintiff fears for his well-being and is under a lot of unnecessary stress.
Hill-Martin retaliated by rejecting Plaintiff’s grievance which was unjustifiable and
intentional. Plaintiff worries that other papers of his that Hill-Martin comes across might not get
processed (Doc. No. 1 at 6). Hill-Martin should show the reasons she rejected his grievances. It
was later determined by Amanda Henry, the Administrative Secretary Grievance Coordinator that
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“plaintiff had no grievance pending to stop him from submitting one.” (Doc. No. 1 at 6).
Mims retaliated by rejecting Plaintiff’s outgoing mail. He had never rejected Plaintiff’s
outgoing mail until Gaddy told him that Plaintiff was going to write to his mother and newspapers
about the assault. Plaintiff is not a threat to the prison and is not a Security Threat Group member
so rejecting his sealed outgoing mail is unjustifiable and retaliatory. Plaintiff has serious family
issues and he is not sure if his loved ones are getting his mail, this is causing him stress and worry.
Plaintiff seeks declaratory judgment, injunctive relief, compensatory and punitive
damages, and such other relief to which he is entitled.
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 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 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)).
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
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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
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

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
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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
less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9, 13–14.
The Fourth Circuit addresses a failure to intervene claim as a theory of “bystander liability”
wherein there is “an omission to act...coupled with a duty to act.” Randall v. Prince George's Cnty.,
302 F.3d 188, 202 (4th Cir. 2002). A “bystander officer” could be liable for his or her nonfeasance
if he or she: “(1) knows that a fellow officer is violating an individual’s constitutional rights; (2)
has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id. at 204. However,
if no excessive force is applied by the fellow officer, the officer witnessing the conduct “cannot be
held liable under bystander liability for a failure to intervene.” Howie v. Prince George’s Cnty.,
2009 WL 2426018 at *6 (D. Md. Aug. 5, 2009).
Plaintiff alleges that Defendant Scott sprayed him with pepper spray and mace and punched
his face while Plaintiff presented no threat and was not resisting, and that Defendant Gaddy stood
by while this occurred. These allegations sufficiently set forth a claim of excessive force against
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Scott and of failure to intervene against Gaddy, and shall proceed.
(2)

Deliberate Indifference to a Serious Medical Need
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary

and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.
97, 104 (1976) (citation and internal quotation marks omitted); see Hill v. Crum, 727 F.3d 312,
317 (4th Cir. 2013) (“the Eighth Amendment’s prohibition against ‘cruel and unusual
punishments’ [extends] to the treatment of prisoners by prison officials,” and “forbids the
unnecessary and wanton infliction of pain.”) (internal quotation marks omitted).
The deliberate indifference standard has two components. A plaintiff must show that he
had serious medical needs, which is an objective inquiry, and that the defendant acted with
deliberate indifference to those needs, which is a subjective inquiry. See Iko v. Shreve, 535 F.3d
225, 241 (4th Cir. 2008); see Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) (“to establish a
claim of deliberate indifference to medical need, the need must be both apparent and serious, and
the denial of attention must be both deliberate and without legitimate penological objective.”). A
“serious medical need” is “one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.” Iko, 535 F.3d at 241 (internal quotation marks omitted). To be found liable under the
Eighth Amendment, a prison official must know of and consciously or intentionally disregard “an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Johnson
v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998). A mere delay or interference with treatment can
be sufficient to constitute a violation of the Eighth Amendment. Smith, 589 F.3d at 739. However,
allegations that might be sufficient to support negligence and medical malpractice claims do not,

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without more, rise to the level of a cognizable § 1983 claim. Estelle, 429 U.S. at 106; Grayson,
195 F.3d at 695 (“Deliberate indifference is a very high standard—a showing of mere negligence
will not meet it.”); see Stokes v. Hurdle, 393 F. Supp. 757, 762 (D. Md. 1975), aff’d, 535 F.2d
1250 (4th Cir. 1976) (“even if a prison doctor is mistaken or negligent in his diagnosis or treatment,
no constitutional issue is raised absent evidence of abuse, intentional mistreatment, or denial of
medical attention.”).
Liberally construing the Complaint, it appears that Plaintiff may be alleging that Nurse
Wilkerson failed to provide medical care after Plaintiff was pepper-sprayed, and that the
Lanesboro C.I. Mental Health Department failed to provide adequate care for Plaintiff’s depression
and anxiety following the incident with Scott and Gaddy.
The claim against Nurse Wilkerson cannot proceed at this time because Plaintiff has failed
to name her as a Defendant. 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).
Although the body of the Complaint contains allegations against Nurse Wilkerson, she is
not named as a defendant in the caption as required by Rule 10(a). This failure renders Plaintiff’s
allegations against Nurse Wilkerson 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).
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Plaintiff’s claim against the Lanesboro C.I. “Mental Health Department” cannot proceed
because that entity is not a “person” within the meaning of § 1983. See, e.g., Harden v. Green, 27
Fed. App. 173 (4th Cir. 2001) (prison medical department is not a “person” for purposes of §
1983). To state a facially sufficient claim, Plaintiff must make specific allegations against
individual prison employees.1 Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965) (pro se
plaintiff should be given an opportunity to particularize a potentially viable claim).
Therefore, Plaintiff’s deliberate indifference claim against the Mental Health
Department is dismissed. However, Plaintiff is granted leave to file an Amended Complaint
within 14 days of this Order that properly identifies all the individuals against whom he wishes to
proceed, and explains how each of them violated his rights under the color of state law.2 Plaintiff
is cautioned that an Amended Complaint will supersede and replace the original Compliant, so it
must include all defendants and claims upon which he wishes 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

Plaintiff is notified that John Doe suits are permissible against “real, but unidentified, defendants.” Schiff
v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally not favored in
federal courts; it is appropriate only when the identity of the alleged defendant is not known at the time the complaint
is filed and the plaintiff is likely to be able to identify the defendant after further discovery.” Njoku v. Unknown
Special Unit Staff, 217 F.3d 840, 840 (4th Cir. 2000). “[I]f it does not appear that the true identity of an unnamed
party can be discovered through discovery or through intervention by the court, the court could dismiss the action
without prejudice.” Schiff, 691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it was error
for the district court to conclude that, under appropriate circumstances, this type of case would not be permitted).
1

2

The Court expresses no opinion about the timeliness, procedural viability, or merit of an Amended
Complaint.

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demonstrate that he suffered some adverse impact or actual injury. See Am. Civil Lib. Union of
Md., 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).
Plaintiff alleges that Defendants Hill-Martin and Mims retaliated because he said he was
going to report the assault to his mother and the newspaper. Hill-Martin rejected his grievance,
which caused Plaintiff to worry that she might not process other papers of his, and Mims
unjustifiably rejecting his sealed outgoing mail. Amanda Henry determined that “plaintiff had no
grievance pending to stop him from submitting one.” (Doc. No. 1 at 6).
Plaintiff has failed to state a claim against Defendant Hill-Martin because there is no
constitutional right to a prison grievance. Adams, 40 F.3d at 75 (“the Constitution creates no
entitlement to grievance procedures or access to any such procedure voluntarily established by a
state.”). Denial of his grievance, therefore, cannot constitute retaliation and Plaintiff’s fear that
Hill-Martin may fail to process his papers in future is too speculative to proceed.
To the extent that Plaintiff intended to allege retaliation against Amanda Henry, this claim

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cannot proceed because there is no constitutional right to a grievance for the reasons above.
Further, Plaintiff has failed to name her as a defendant or explain if and how she violated his rights.
See Fed. R. Civ. P. 10(a); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a
pleader must allege facts, directly or indirectly, that support each element of the claim). Therefore,
to the extent that Plaintiff attempted to make a claim against Henry, it is insufficient to proceed.
With regards to Mims, it appears that Plaintiff is claiming that the unjustifiable confiscation
of outgoing mail violates the First Amendment. It is unclear at this juncture whether Plaintiff will
be able to demonstrate an injury; he will be permitted to proceed at this time to further develop
this claim.
Therefore, the retaliation claim against Hill-Martin is dismissed as facially insufficient
but the claim against Mims shall proceed.
(4)

Injunctive Relief
A prisoner’s transfer moots a § 1983 request for declaratory and injunctive relief when the

conditions of which the prisoner claims are unlikely to recur. See Williams v. Griffin, 952 F.2d
820 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986).
Plaintiff’s claim for declaratory and injunctive relief are moot because he no longer resides
at Lanesboro C.I. where the alleged incident occurred, and he has failed to allege the existence of
any conditions indicating likely recurrence.
IV.

CONCLUSION

For the reasons stated herein, the claim of excessive force and failure to intervene shall
proceed against Defendants Scott and Gaddy, the claim of retaliation shall proceed against
Defendant Mims, and the remaining claims are dismissed. Plaintiff may file a superseding
Amended Complaint within 14 days in which he may attempt to add parties and cure the
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deficiencies identified in this Order.
IT IS, THEREFORE, ORDERED that:
1. The claims against Defendants Scott, Gaddy, and Mims, survive initial review under
28 U.S.C. § 1915.
2. The remaining claims are dismissed.
3. Plaintiff shall have 14 days in which to file a superseding Amended Complaint in
accordance with this Order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint within the time limit set by the Court, this action will proceed
on the original Complaint, (Doc. No. 1).
4. The Clerk is directed to mail a copy of the Complaint, (Doc. No. 1), and a new Section
1983 complaint form to Plaintiff.
5. IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons forms to
Plaintiff for Plaintiff to fill out and return for service of process on Defendants Scott,
Gaddy, and Mims. Once the Court receives the summons forms, the Clerk shall then
direct the U.S. Marshal to effectuate service on Defendants. The Clerk is respectfully
instructed to note on the docket when the form has been mailed to Plaintiff.

Signed: December 4, 2017

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