McNeill v. Herring et al

Filing 11

ORDER that Plaintiffs action survives initial review under 28 U.S.C. § 1915(e) as to all named Defendants, except for Defendant Herring, who shall be dismissed and terminated as a Defendant. The Clerk of Court shall comme nce the procedure for waiver of service as set forth in Local Rule 4.3 for all Defendants, except for Defendant Herring, who shall be dismissed and terminated as a Defendant. Signed by Chief Judge Frank D. Whitney on 2/5/19. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-189-FDW
JAMES C. MCNEILL,

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Plaintiff,
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vs.
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JOHN HERRING, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1). Plaintiff’s is proceeding in forma pauperis. (Doc. No. 8).
I.

BACKGROUND

Pro se Plaintiff is a North Carolina inmate currently incarcerated at Polk Correctional
Institution in Butner, North Carolina. Plaintiff filed this action on April 12, 2018, pursuant to 42
U.S.C. § 1983, naming the following persons as Defendants, all alleged to be employees at
Lanesboro Correctional Institution at all relevant times: FNU Hinson, FNU Simmons, FNU
Allen, FNU Turgeon, and FNU Kinney, all identified as correctional officers at the prison; John
Herring, identified as a correctional superintendent at the prison; and William Horne, identified
as a correctional housing unit manager at the prison. (Doc. No. 1). Plaintiff alleges that
Defendants Allen and Horne violated his First Amendment right to access to the courts by
refusing to deliver him his legal mail on various dates. Plaintiff also alleges that Defendants
Hinson, Simmons, and Turgeon used excessive force again him on June 21, 2017. Plaintiff also
appears to be bringing a bystander claim against Defendants Kinney and Allen for being present
during the excessive force incident, but doing nothing to stop or prevent the excessive force.
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Finally, Plaintiff alleges that he reported the incident to Defendant Herring and others, but prison
officials did nothing in response. Plaintiff seeks compensatory and punitive damages and
injunctive relief.
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). 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). 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 Court finds that Plaintiff’s First Amendment claim against Defendants Allen and
Horne is not clearly frivolous and, thus, survives initial review as to these Defendants.
Furthermore, Plaintiff’s Eighth Amendment claim for excessive force survives as to Defendants
Hinson, Simmons, and Turgeon, and Plaintiff’s bystander liability claim against Defendants
Kinney and Allen also survives initial review. Plaintiff’s claim against Defendant Herring,
however, will be dismissed. Plaintiff alleges no personal participation by this Defendant, aside
from the fact that Plaintiff complained to him, and he took no action in response. It is well
settled that Defendant Herring cannot be held liable merely by virtue of his position as a
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supervisor at the prison based on respondeat superior. See Monell v. Dep’t 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).
IV.

CONCLUSION

For the reasons stated herein, the Court finds that Plaintiff’s claim is not clearly frivolous
as to all Defendants except for Defendant Herring, who shall be dismissed as a Defendant.
IT IS, THEREFORE, ORDERED that: .
1.

Plaintiff’s action survives initial review under 28 U.S.C. § 1915(e) as to all named
Defendants, except for Defendant Herring, who shall be dismissed and terminated
as a Defendant.

2.

This Court recently enacted Local Rule 4.3, which sets forth a procedure to waive
service of process for current and former employees of the North Carolina
Department of Public Safety (“NCDPS”) in actions filed by North Carolina State
prisoners. The Clerk of Court shall commence the procedure for waiver of service
as set forth in Local Rule 4.3 for all Defendants, except for Defendant Herring, who
shall be dismissed and terminated as a Defendant.

Signed: February 5, 2019

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