Harris v. Mac et al

Filing 12

ORDER that claims asserted against NCDPS are DISMISSED WITH PREJUDICE. FURTHER ORDERED that excessive force claims against Defts Blackwell, Carol, Collins, Jones, Mac, White, and John Does #1 and #2; medical deliberate indif ference claims against Defts West and White; claims of unconstitutional conditions of confinement against Defts Abernathy and Collins; and due process violations against Defts Ingram, Lambert, and Tharrington have passed initial review of the 1 Com plaint. The Court will exercise supplemental jurisdiction over Pltf's North Carolina assault and battery claims against Defts Blackwell, Carol, Collins, Jones, Mac, White, and John Does #1 and #2. The due process claims against Defts Cooper, Wal ker, Halkins, Dayes, and Tucker are DISMISSED WITHOUT PREJUDICE to Pltf asserting his claims in the appropriate District, subject to all procedural and timeliness requirements. All other claims asserted in 1 Complaint are DISMISSED WITHOUT PREJUDIC E. FURTHER ORDERED that Pltf shall have 30 days in which to amend his Complaint, if he so chooses, to correct deficiencies identified in this Order and to otherwise properly state a claim upon which relief can be granted. Any Amended Complaint will b e subject to all timeliness and procedural requirements and will supersede the 1 Complaint. Piecemeal amendment will not be permitted. If Pltf fails to amend Complaint in accordance with this Order and within time limit set by the Court, Deft Andre ws will be dismissed from this case without further notice to Pltf. Clerk is instructed to mail Pltf a blank prisoner § 1983 complaint form. ( Amended Complaint due by 7/7/2021.) Signed by Chief Judge Martin Reidinger on 6/07/2021. (Pro se litigant served by US Mail.) (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00565-MR

ANTHONY L. HARRIS,

)
)
Plaintiff,
)
)
vs.
)
)
RAVEN DAWN MAC, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the Complaint.
[Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 9].
The pro se Plaintiff filed the Complaint pursuant to 42 U.S.C. § 1983
addressing incidents that allegedly occurred at the Lanesboro and Polk
Correctional Institutions.1 [Doc. 1]. The Plaintiff names as Defendants: the
North Carolina Department of Public Safety (“NCDPS”); FNU Abernathy,
FNU Blackwell and Raven Dawn Mac, correctional sergeants at Lanesboro;
FNU White a lieutenant at Lanesboro; FNU Andrews, FNU Carol, FNU
Collins, FNU Jones, and John Does # 1 and 2, correctional officers at
Lanesboro; FNU West a nurse at Lanesboro; FNU Ingram, a unit manager

1

The Plaintiff filed the Complaint from the Central Prison in Raleigh; he is presently
incarcerated at Polk C.I.

at Lanesboro; FNU Lambert, an assistant unit manager at Lanesboro; Shane
Tharrington, the NCDPS director of classification; Billy Cooper, a unit
supervisor at Polk; FNU Walker, a unit manager at Polk; Johny Halkins, the
warden at Polk; D. Dayes, a supervisor at Polk; and FNU Tucker, the “FCC”
at Polk.
The Plaintiff alleges that, on July 4, 2018, while he was incarcerated at
Lanesboro C.I., Defendant Collins “touched his butt” while she was escorting
the Plaintiff to outside recreation. [Doc. 1 at 3]. The Plaintiff alleges that this
incident led to a “dispute” between the Plaintiff and Collins. [Id.]. The Plaintiff
alleges that Defendant Mac overheard the dispute, “jacked [Plaintiff] up,”
“coerced [him] to his cell,” and denied him recreation. [Id.]. The Plaintiff
alleges that Defendants Mac, Collins and Carol then beat him in his cell and
sprayed his face and eyes with pepper spray. [Id.]. The Plaintiff alleges that
he passed out and the officers left. [Id.].
The Plaintiff alleges that Defendants Blackwell, Jones, and “the rest of
the crew” arrived and an unidentified officer pulled the Plaintiff’s arm through
the trap by one handcuff. [Doc 1 at 4]. The Plaintiff alleges that “the officers”
yelled for the Plaintiff to “stop resisting” even though the Plaintiff was not
resisting, to justify their assault, battery, and use of excessive force. [Id.].
The Plaintiff further alleges that “they” dragged the Plaintiff down a hall in full
2

restraints to medical while an unidentified officer repeatedly stepped on the
foot restraints to cut into Plaintiff’s ankles. [Id.].
The Plaintiff alleges that Officer Jones and three unidentified officers 2
beat the Plaintiff in a holding cell in the medical waiting area, and that one of
the officers ground his privates into the Plaintiff’s butt while the Plaintiff
screamed. The Plaintiff then alleges that an unidentified officer stepped on
the foot chains while the other two officers pulled Plaintiff away in the
opposite direction so the restraints would cut into his ankles. [Id.].
The Plaintiff alleges that Nurse West watched the whole episode in the
medical waiting area through the window, laughing. [Id.].

The Plaintiff

alleges that once he was in the nurse station, West asked him whether he
was hurt or had been maced.

[Id.].

The Plaintiff answered “yes” and

requested a “detox.”3 [Id.]. The Plaintiff alleges that Defendant West could
observe swelling to the Plaintiff’s head and his lip injuries, and could smell
the pepper spray on him. [Id.]. The Plaintiff contends that Defendant White
and other unidentified officers told Defendant West not to treat the Plaintiff
and threatened him, telling him to say that nothing happened. [Doc. 1 at 8].

2

The Plaintiff has named only two John Doe officers as Defendants.

3

This refers to a decontamination shower to remove the pepper spray. [See Doc. 1 at
8].
3

The Plaintiff alleges that Defendant West refused to give the Plaintiff
treatment or medical attention including a decontamination shower. [Id.].
Next, the Plaintiff alleges that “the officers” and Defendant White then
took the Plaintiff to an empty cell where they slammed his head into a wall
and beat him, injuring his ribcage and back. [Id.]. The Plaintiff alleges that
he was then made to strip while the officers joked about his body. He further
alleges that “they” then wrapped chains around the Plaintiff “like a rope, In a
disgraceful and humiliating manner” which Defendant White made them
redo. [Id.]. The Plaintiff alleges that his New Balance shoes were taken
during this incident and were never returned. [Doc. 1 at 11]. He further
alleges that “they” then tightened the restraints to cut into the Plaintiff’s skin
“and the nurse4 acknowledged and accepted it.” [Id. at 8].
The Plaintiff further alleges that “the officers” then took him back to the
medical waiting area holding cell and tightened the restraints even more,
cutting deep into his skin and cutting off the blood flow to his wrists and
ankles, leaving scars. [Id.]. He contends that they made him walk barefoot
down the hall while another officer kept stepping on the foot restraints on
purpose to cut deeper into the Plaintiff’s ankles and feet, causing
unwarranted pain. [Id.].

4

It is unclear whether this refers to Defendant West.
4

The Plaintiff alleges that Defendant Abernathy threw everything out of
Plaintiff’s cell, and damaged his property and “important documents” with
water, mace, and lotion. [Id.]. He further alleges that Defendant Abernathy
ordered that Plaintiff’s mattress to be removed, and that he and Defendant
Collins left him on the floor in full restraints until 8:00 p.m., when Plaintiff was
found non-responsive on the floor. [Id. at 8, 12]. The Plaintiff alleges that no
“code” was ever announced on the radio or intercom during this incident, and
that Defendant Andrews was “in the booth.” [Id. at 9]. The Plaintiff alleges
that a few days later, Lieutenant Philemont5 came to the Plaintiff’s cell to
write a statement, but “upon reasonable belief,” such statement was never
documented or filed. [Id.].
In addition to his claims of excessive force, the Plaintiff appears to
allege a claim for tampering with his legal mail. The Plaintiff alleges that he
sent legal mail to “NCIC”6 on August 2, 2018, and that NCIC responded a
few days later. [Id.]. The Plaintiff alleges that Defendant Herring delivered
this legal mail opened with the letter stapled to the outside of the envelope.
[Id.].

5

Lieutenant Philemont is not named as a Defendant.

6

This appears to refer to the North Carolina Industrial Commission.
5

The Plaintiff contends that in retaliation for “all of the above”
(presumably referring to his communication with the North Carolina Industrial
Commission), Defendants Ingram, Lambert, and Tharrington sent the
Plaintiff to Polk C.I.’s H-CON super-maximum unit without due process for
over 310 days, even though the Plaintiff was not found guilty of any charge.
[Id. at 8, 9, 12]. The Plaintiff alleges that the transfer caused him to lose his
kitchen job; have no contact or visitation with his family for two years; and
experience harsher conditions of confinement including no outside
recreation, almost no human contact, all while suffering the effects of his
bone marrow cancer. [Id. at 9].
The Plaintiff alleges that an additional 180 days in H-CON were
recommended by “classification” at Polk under the supervision of Defendants
Walker, Cooper, Tucker, Dayes, and Halkins. [Id. at 10].
As relief, the Petitioner seeks injunctive relief and compensatory and
punitive damages. [Id. at 4].
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 “(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
6

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress
from governmental entities, officers, or employees).
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). 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
To state a claim under § 1983, a plaintiff must allege that he was

“deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
A.

Parties

The Plaintiff attempts to name NCDPS as a Defendant. However,
“neither a state nor its officials acting in their official capacities are ‘persons’
7

under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
Therefore, NCDPS is not a “person” under § 1983. See Fox v. Harwood,
2009 WL 1117890, at *1 (W.D.N.C. April 24, 2009). The Plaintiff’s claims
against NCDPS are accordingly dismissed with prejudice.
The Plaintiff makes allegations against individuals who are not named
as Defendants in the caption as required by Rule 10(a). Such claims are
nullities and they are dismissed without prejudice. 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).
Further, the Plaintiff extensively relies on pronouns and vague terms
such as “officers” and “crew,” rather than identifying the individual(s) involved
in each allegation. Such claims are too vague and conclusory to proceed
and are dismissed without prejudice.
B.

Excessive Force & Sexual Abuse

The Plaintiff alleges that he was beaten and sexually assaulted by
various officers.
The Eighth Amendment prohibits prison officials from unnecessarily
and wantonly inflicting pain on prisoners. Hill v. Crum, 727 F.3d 312, 317
(4th Cir. 2013).

“An inmate’s Eighth Amendment excessive force claim
8

involves both an objective and a subjective component.” Brooks v. Johnson,
924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks whether
the force applied was sufficiently serious to establish a cause of
action.” Id. The subjective component “ultimately turns on whether force
was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Id. at 11213. Allegations of sexual abuse by a prison guard can amount to an Eighth
Amendment violation. Jackson v. Holley, 666 F. App’x 242, 244 (4th Cir.
2016); see Woodford v. Ngo, 548 U.S. 81, 118 (2006) (Stevens, J.,
dissenting) (“Accordingly, those inmates who are sexually assaulted by
guards, or whose sexual assaults by other inmates are facilitated by guards,
have suffered grave deprivations of their Eighth Amendment rights.”).
The Fourth Circuit recognizes a cause of action for bystander liability
“premised on a law officer’s duty to uphold the law and protect the public
from illegal acts, regardless of who commits them.” Stevenson v. City of
Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v.
Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002)). A “bystander
officer” can 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

9

reasonable opportunity to prevent the harm; and (3) chooses not to act.”
Randall, 302 F.3d at 204.
Upon review of the Complaint, the Court concludes that the Plaintiff’s
allegations that Blackwell, Carol, Collins, Jones, Mac, White, and John Doe
Officers 1 and 2 used excessive force and touched him in a sexual manner
state plausible Eighth Amendment claims, and such claims therefore will be
permitted to proceed.
Next, the Plaintiff alleges that Defendant West observed some of the
foregoing actions through a window and laughed. The Plaintiff has failed to
state a plausible claim for failure to intervene against Defendant West
because he does not allege that she was in a position to intervene, having
observed the alleged use of excessive force from another room.
The Plaintiff further alleges that Defendant Andrews was “in the booth”
at an unspecified time and failed to “call a code.” These allegations are too
vague and conclusory to state a plausible Eighth Amendment claim because
the Plaintiff merely alleges Defendant Andrews’ presence in a booth and fails
to identify the incidents that Andrews is alleged to have witnessed, or that
Andrews was in a position to intervene and failed to do so. Further, the
Plaintiff’s allegation that Defendant Andrews failed to call a code is
insufficient to establish a § 1983 claim insofar it alleges solely an NCDPS
10

policy violation. See Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir.
2013) (unpublished) (holding that “prison officials’ failure to follow internal
prison policies are not actionable under § 1983 unless the alleged breach of
policy rises to the level of constitutional violation”).
C.

Deliberate Indifference

The Eighth Amendment encompasses a right to medical care for
serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).
To state a claim for deliberate indifference to a serious medical need, a
plaintiff must show that he had serious medical needs and that the defendant
acted with deliberate indifference to those needs. Heyer v. United States
Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing Iko v. Shreve,
535 F.3d 225, 241 (4th Cir. 2008)). 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 constitute deliberate indifference to a serious medical need, “the
treatment [a prisoner receives] must be so grossly incompetent, inadequate,
or excessive to shock the conscience or to be intolerable to fundamental
fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on
other grounds by Farmer v. Brennan, 511 U.S. 825, 825 (1994). However,
11

mere negligence or malpractice does not violate the Eighth Amendment.
Miltier, 896 F.2d at 852. Further, “mere ‘[d]isagreements between an inmate
and a physician over the inmate’s proper medical care’ are not actionable
absent exceptional circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225
(4th Cir. 2016) (quoting Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)).
The Plaintiff’s allegations that Defendants West and White refused to
provide any medical treatment, including a decontamination shower to
remove pepper spray, state plausible deliberate indifference claims against
these Defendants, and such claims will be allowed to proceed.
D.

Due Process

The Plaintiff alleges he was sent to Polk C.I. for “H-CON” housing and
that his stay in H-CON was extended without due process.
In order to establish a due process violation, “a plaintiff must first show
that he has a constitutionally protected ‘liberty’ or ‘property’ interest, and that
he has been ‘deprived’ of that protected interest by some form of ‘state
action.’” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir.
1988) (citations omitted). If the plaintiff makes such showing, the court
considers what process was required and whether any provided was
adequate in the particular factual context. Id. In order to demonstrate the
existence of a liberty interest, a plaintiff “must show a legitimate claim of
12

entitlement – that is, something more than an abstract need or desire….”
Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 146 (4th Cir.
2018) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972)). To demonstrate a sufficient property interest, an inmate must have
“an individual entitlement grounded in state law.” Logan v. Zimmerman
Brush Co., 455 U.S. 422, 430 (1982). If the inmate does not have such an
interest, then the protections of the Due Process Clause do not apply. See
Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015); Couch v. Clarke, 782 F.
App’x 290, 292 (4th Cir. 2019).
The Plaintiff’s allegations that Defendants Ingram, Lambert, and
Tharrington sent him to H-CON without due process are sufficient to state
plausible claims, and therefore such claims will be allowed to proceed.
However, the Plaintiff’s claims that, once he was at Polk C.I.,
Defendants Cooper, Walker, Halkins, Dayes, and Tucker extended H-CON
by 180 days without due process, are not based on actions that occurred
while the Plaintiff was located in this District. These circumstances pose a
joinder issue because the Federal Rules of Civil Procedure allow joinder of
defendants in a single action when “any right to relief is asserted against
them jointly, severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or occurrences;
13

and … any question of law or fact common to all defendants will arise in the
action.” Fed. R. Civ. P. 20(a)(2). “The ‘transaction or occurrence test’ of
[Rule 20] ... ‘permit[s] all reasonably related claims for relief by or against
different parties to be tried in a single proceeding. Absolute identity of all
events is unnecessary.’” Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir.
1983) (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.
1974)). However, “Rule 20 does not authorize a plaintiff to add claims
‘against different parties [that] present[ ] entirely different factual and legal
issues.’” Sykes v. Bayer Pharm. Corp., 548 F. Supp. 2d 208, 218 (E.D. Va.
2008) (internal quotations omitted). “And, a court may ‘deny joinder if it
determines that the addition of the party under Rule 20 will not foster the
objectives of [promoting convenience and expediting the resolution of
disputes], but will result in prejudice, expense, or delay.’” Id. (quoting Aleman
v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007)). This
does not, however, provide a plaintiff free license to join multiple defendants
into a single lawsuit where the claims against the defendants are unrelated.
See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (ruling that
district court should not have allowed prisoner to bring unrelated suits against
unrelated defendants); Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir.
1997). Moreover, the Court is mindful that preventing unrelated claims
14

against unrelated defendants not only serves the requirements of Rule 20,
but also furthers the goals of the Prison Litigation Reform Act (“PLRA”). See
George, 507 F.3d at 607; accord Fannin v. Sellers, 2020 WL 6808771, at *3
(E.D. Va. Nov. 19, 2020); Coles v. McNeely, 2011 WL 3703117, at *3 (E.D.
Va. Aug. 23, 2011) (“The Court’s obligations under the PLRA include review
for compliance with Rule 20(a)”), aff’d 465 F. App’x 246 (4th Cir. 2012).
The classification decisions relating to the Plaintiff at Polk C.I. did not
occur in this District and do not constitute the same transaction or occurrence
as those made at Lanesboro C.I. See Burns v. Wexford Health Servs., 2019
WL 5394180, at *3 (S.D. Ill. Oct. 22, 2019) (unpublished) (“discretionary
actions taken by different officials at different prisons do not constitute the
same series of transactions and occurrences with questions of fact common
to each of the defendants.”).
The appropriate remedy is to sua sponte dismiss the improper
defendants and sever the unrelated claims. 28 U.S.C. § 1406(a) (“The
district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought.”);
see, e.g., Nunn v. N.C. Legis., 2015 WL 1713885, at *4 (E.D.N.C. Apr. 15,
2015) (on initial review, dismissing without prejudice a prisoner’s claims that
15

occurred at prisons located in other districts), aff’d, 620 F. App’x 173 (4th Cir.
2015).
Therefore, the Plaintiff’s due process claims will proceed against
Defendants Ingram, Lambert, and Tharrington. However, the due process
claims against Defendants Cooper, Walker, Halkins, Dayes, and Tucker are
dismissed without prejudice to the Plaintiff asserting his claims in the
appropriate District, subject to all procedural and timeliness requirements.7
E.

Property Deprivations

The Plaintiff alleges that a pair of shoes was taken and never returned
to him and that property in his cell was destroyed.
Where a state employee’s random, unauthorized act deprives an
individual of property, either negligently or intentionally, the individual is
relegated to his state post-deprivation process, so long as the State provides
an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517
(1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds
by Daniels v. Williams, 474 U.S. 327 (1986)). Under North Carolina law, an
action for conversion will lie against a public official who wrongfully deprives
an owner of his property by an unauthorized act. Gallimore v. Sink, 27

7

The Court makes no determination regarding the merit or procedural viability of such an
action.
16

N.C.App. 65, 67, 218 S.E.2d 181, 182 (1975).

The Fourth Circuit has

determined that North Carolina provides adequate post-deprivation
remedies for prisoners. See Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983)
(due process satisfied where North Carolina tort law provides an adequate
avenue for relief for state prisoner).
The Plaintiff asserts that Defendant White took a pair of shoes that was
never returned and that Defendant Abernathy damaged property and
documents in his cell. The Plaintiff appears to allege that these property
losses resulted from random, unauthorized acts rather than an established
state procedure. Adequate post-deprivation remedies exist for Plaintiff’s
alleged property loss, so there is no legal theory which would support a due
process claim for the loss of these items. Accordingly, the Plaintiff’s claims
for the alleged loss of property are dismissed.
F.

Conditions of Confinement

The Plaintiff appears to allege that the denial of recreation and the
conditions in which he was left in his cell after the use of force incident were
constitutionally infirm.
The Eighth Amendment protects prisoners from inhumane conditions
of confinement. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).
“Prison conditions may be harsh and uncomfortable without violating the
17

Eighth Amendment prohibition against cruel and unusual punishment.”
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997).

Rather, extreme

deprivations are required, and “only those deprivations denying the minimal
civilized measure of life’s necessities are sufficiently grave to form the basis
of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal quotation
omitted)). Further, a plaintiff must allege and prove facts sufficient to support
a claim that prison officials knew of and disregarded a substantial risk of
serious harm. See Farmer, 511 U.S. at 847.
The Plaintiff’s allegations that Defendants Abernathy and Collins left
him on the floor in full restraints without providing a decontamination shower
for several hours until he was found unresponsive state a plausible Eighth
Amendment claim. However, his claim against “every officer on Anson Unit
at the time of the incident” who witnessed and/or took part in the incident is
too vague and conclusory to proceed. [Doc. 1 at 12]; see Section III(A),
supra.
To the extent that the Plaintiff alleges that Defendant Mac denied him
recreation on a single occasion is not adequately serious to implicate the
Eight Amendment.

18

F.

Legal Mail

The Plaintiff appears to allege that his legal mail was mishandled on a
single occasion.
As a general matter, prisoners have the right to both send and receive
mail. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Pell v. Procunier,
417 U.S. 817 (1974). “[L]egal mail is widely recognized to be privileged and
confidential — even in the context of prisons — which suggests that an
incarcerated person’s expectation of privacy in his legal mail is one ‘that
society is prepared to consider reasonable.’” Haze v. Harrison, 961 F.3d
654, 660 (4th Cir. 2020) (quoting United States v. Catellanos, 716 F.3d 828,
832 (4th Cir. 2013)); see King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016)
(“nothing in Hudson8 indicates the Supreme court intended to abrogate a
prisoner’s expectation of privacy beyond his cell.”). However, a prison rule
requiring that legal mail be opened in the presence of the inmate, without
being read, does not infringe on a prisoner’s constitutional rights. See Wolff
v. McDonnell, 418 U.S. 539, 575–77 (1974); see also Turner v. Safley, 482
U.S. 78, 89 (1987) (prison restrictions impinging on an inmate’s constitutional

8

Hudson v. Palmer, 468 U.S. 517 (1984) (holding that an inmate has no reasonable
expectation of privacy, and thus no Fourth Amendment protection, in his prison cell).
19

rights are valid if they are reasonably related to legitimate penological
interests).
The Plaintiff appears to allege that Defendant Herring mishandled his
legal mail by delivering a piece of legal mail from NCIC to him, already
opened. This single instance of legal mail mishandling does not rise to the
level of a constitutional violation. See Buie v. Jones, 717 F.2d 925, 926 (4th
Cir. 1983) (stating that “a few isolated instances of plaintiff's mail being
opened out of his presence” that were “either accidental or the result of
unauthorized subordinate conduct ... were not of constitutional magnitude”);
Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“an isolated incident of
mail tampering is usually insufficient to establish a constitutional violation.”).
Therefore, the claim against Defendant Herring for mishandling the Plaintiff’s
legal mail will be dismissed.
G.

Retaliation

Construing the allegations liberally, the Plaintiff appears to allege that
he was sent to H-CON in retaliation for having communication with the North
Carolina Industrial Commission.
The First Amendment right to free speech “includes not only the
affirmative right to speak, but also the right to be free from retaliation by a
public official for the exercise of that right.” Suarez Corp. v. McGraw, 202
20

F.3d 676, 685 (4th Cir. 2000). 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). In order to state a colorable retaliation claim
under § 1983, a plaintiff must allege: “(1) [ ]he engaged in protected First
Amendment activity, (2) the defendant[ ] took some action that adversely
affected [his] First Amendment rights, and (3) there was a causal relationship
between [his] protected activity and the defendant['s] conduct.” Martin v.
Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (quoting Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005)). In the
prison context, retaliation 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).
The Plaintiff’s allegations in this regard are too vague and conclusory
to state a plausible retaliation claim against any Defendant. The Plaintiff
does not identify the Defendant(s) who allegedly retaliated against him and
such cannot be gleaned from the Complaint.

The Plaintiff alleges that

Defendant Herring opened his NCIC legal mail, but does not allege that
Herring was responsible for placing him in H-CON; and he does not allege
that Defendants Ingram, Lambert, and Tharrington, who allegedly sent him
21

to H-CON, knew of the NCIC legal mail. Therefore, the Plaintiff’s retaliation
claim will be dismissed.
H.

Supplemental Jurisdiction

Finally, the Plaintiff appears to assert claims under North Carolina law.
Federal district courts may entertain claims not otherwise within their
adjudicatory authority when those claims “are so related to claims ... within
[federal-court competence] that they form part of the same case or
controversy.” 28 U.S.C. § 1367(a). To exercise supplemental jurisdiction, a
court must find that “[t]he state and federal claims ... derive from a common
nucleus of operative fact” where a plaintiff “would ordinarily be expected to
try them all in one judicial proceeding.” United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 725 (1966).

When a district court dismisses all claims

independently qualifying for the exercise of federal jurisdiction, it “ordinarily
dismiss[es] all related state claims.” Artis v. Dist. Of Columbia, 138 S.Ct.
594, 595 (2018); see § 1367(c)(3). A district court may also dismiss the
related state claims if there is a good reason to decline jurisdiction. See §
1367(c)(1), (2), and (4).
The Plaintiff asserts that the officers who allegedly used excessive
force against him are liable for assault and battery under North Carolina law.
See generally Dickens v. Puryear, 302 N.C. 437, 445, 276 S.E.2d 325, 330
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(1981) (North Carolina assault is an offer to show violence to another without
striking him, and battery is the carrying of the threat into effect by the infliction
of a blow). These claims involve the same Defendants and incidents as the
excessive force claims that have passed initial review. Therefore, the Court
will exercise supplemental jurisdiction over the North Carolina assault and
battery claims at this time.

ORDER
IT IS, THEREFORE, ORDERED that the claims asserted against
NCDPS are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the excessive force claims against
Defendants Blackwell, Carol, Collins, Jones, Mac, White, and John Does #1
and #2; medical deliberate indifference claims against Defendants West and
White; claims of unconstitutional conditions of confinement against
Defendants Abernathy and Collins; and due process violations against
Defendants Ingram, Lambert, and Tharrington have passed initial review.
The Court will exercise supplemental jurisdiction over the Plaintiff’s North
Carolina assault and battery claims against Defendants Blackwell, Carol,
Collins, Jones, Mac, White, and John Does #1 and #2. The due process
claims against Defendants Cooper, Walker, Halkins, Dayes, and Tucker are
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DISMISSED WITHOUT PREJUDICE to the Plaintiff asserting his claims in
the appropriate District, subject to all procedural and timeliness
requirements. All other claims asserted in the Complaint are DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff shall have thirty (30)
days in which to amend his Complaint, if he so chooses, to correct the
deficiencies identified in this Order and to otherwise properly state a claim
upon which relief can be granted. Any Amended Complaint will be subject
to all timeliness and procedural requirements and will supersede the
Complaint. Piecemeal amendment will not be permitted. If Plaintiff fails to
amend the Complaint in accordance with this Order and within the time limit
set by the Court, Defendant Andrews will be dismissed from this case without
further notice to Plaintiff.
The Clerk is instructed to mail Plaintiff a blank prisoner § 1983
complaint form.
IT IS SO ORDERED.
Signed: June 7, 2021

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