Brice v. Marlowe et al
ORDER that Defts Alan Cloninger, Gaston County Sheriff's Department, and Gaston County Jail and Pltf's claim based on the violation of his rights under Eighth Amendment are DISMISSED on initial review under 28 U.S.C. § 1915(e) re: 1 Complaint. Clerk of Court is instructed to mail a blank summons to Pltf to fill out and identify Deft Marlowe for service of process, and then return the summons to the Court. Pltf is required to provide necessary information for U.S. Marshal to effectuate service on Deft Marlowe. When the Court receives summons from Pltf, Clerk shall direct U.S. Marshal to effectuate service upon Deft Marlowe. Clerk also instructed to update docket in this matter to reflect Pltf's correct NCDPS Offender Number, 0916918, and to mail Pltf a copy of Docket No. 7 , which was returned as undeliverable. Signed by Chief Judge Martin Reidinger on 9/06/2021. (Pro se litigant served by US Mail.) (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
FNU MARLOWE, et al.,
THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1], filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)
and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 7].
Pro se Plaintiff Romeal Brice is a pretrial detainee currently
incarcerated at Gaston County Jail (the “Jail”) in Gastonia, North Carolina.
He filed this action on June 22, 2021, pursuant to 42 U.S.C. § 1983, naming
as Defendants FNU Marlowe, identified as a Deputy at the Gaston County
Sheriff’s Office (“Sheriff’s Office”); Alan Cloninger, identified as the Sheriff of
Gaston County; and the Sheriff’s Office.1 [Doc. 6 at 2-3]. Plaintiff sues
Plaintiff names the Sheriff’s Office as the Sheriff’s “Department/Jail.” [Doc. 1 at 3]. To
the extent Plaintiff also intends to sue the Gaston County Jail, the Court addresses this
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Defendants Marlowe and Cloninger in their individual and official capacities
and purports to sue Defendant Sheriff’s Office in these capacities as well.
[Id.]. Plaintiff alleges that on May 23, 2021 between 10:30 a.m. and 12 p.m.
in F-Block at Gaston County Jail the following occurred.
Deputy/Jailer Marlowe told me to go to my cell before
he beats my ass. Marlowe started to walk towards
me in a vengeful, raging manner. I was afraid of what
he might do so I ran to my cell. Marlowe chase me
stating “I’m going to beat your ass boy.” I ran inside
my cell closed the door and lay facedown on the
ground with my arms spread out in surrender.
Marlow came into my cell, dropped both his knees in
my back and while handcuffing me he delivered
blows to my sides, ribs, and back of my head. I yelled
out that he was beating me and he started to mush
my head and face to the cement floor while delivering
blows to my ribs, calling me a bitch. He tightened
handcuffs, while twisting and squeezing my already
injured left hand wrist, and arm. I yelled out he was
hurting me, he lifted me off the ground and marched
me out of the dorm down to booking the whole time
squeezing, and twisting my arms and wrist very
painfully. I told him I have nerve damage in my left
wrist and arm due to having surgery for a K-9
crushing my bones. That only made him use more
force on my arm maliciously squeezing, twisting, and
[Doc. 1 at 5-6, 8 (errors uncorrected)].
Plaintiff alleges that Defendant
Cloninger “is the Sheriff and condones in the actions of his employees, and
is held accountable for there actions.” [Doc. 1 at 8 (errors uncorrected)]. As
to Defendant Sheriff’s Office, Plaintiff alleges that it is “overall held
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accountable for the actions taken against [Plaintiff].” [Id.].
no allegations specific to the Gaston County Jail. [See Doc. 1].
Plaintiff claims that this conduct violated his rights under the Eighth and
Fourteenth Amendments to be free from cruel and unusual punishment and
excessive force. [Id. at 3].
Plaintiff claims that he suffered physical and emotional injury from the
assault by Defendant Marlowe and that he requested, but was denied,
immediate medical attention. He claims he was “told to fill out a sick call,
that would take days to be seen on, and cost [Plaintiff] $20.” Plaintiff alleges
that as of June 16, 2021, he had not been treated or seen by a doctor. [Id.
at 7]. Plaintiff seeks monetary relief. [Id. at 6].
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, 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.
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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
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).
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States
and must show that the deprivation of that right was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The Fourteenth Amendment “protects a pretrial detainee from the use
of excessive force that amounts to punishment.” Graham v. Connor, 490
U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial
detainee must show only that the force “purposely or knowingly used against
him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389
(2015). The standard for assessing a pretrial detainee’s excessive force
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claim is “solely an objective one.” Id. In determining whether the force was
objectively unreasonable, a court considers the evidence “from the
perspective of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham,
490 U.S. at 396).
Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of
every reasonable inference, he has stated a claim against Defendant
Marlowe under the Fourteenth Amendment based on the use of excessive
Plaintiff’s excessive force claim under the Eighth Amendment,
however, will be dismissed. The Eighth Amendment does not apply to pretrial detainees as Plaintiff here. See Kingsley, 576 U.S. at 395-97.
Plaintiff has failed to state a claim against Defendants Cloninger and
Sheriff’s Office. Defendant Sheriff’s Office is not a “person” subject to suit
under § 1983.2 See Brooks v. Pembroke Cty. Jail, 722 F. Supp. 1294, 1301
(E.D.N.C. 1989). Furthermore, Defendant Cloninger is named only in his
supervisory capacity. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978) (stating that liability under § 1983 is personal in nature, and the
doctrine of respondeat superior does not apply). The Court will, therefore,
Gaston County Jail would also be dismissed as a Defendant on this ground, to the extent
Plaintiff intended to name it as a Defendant.
Case 3:21-cv-00295-MR Document 10 Filed 09/07/21 Page 5 of 7
dismiss Defendants Cloninger, Sheriff’s Office, and Gaston County Jail on
For the foregoing reasons, the Court concludes that the Plaintiff’s
Complaint against Defendant Marlowe for violation of Plaintiff’s Fourteenth
Amendment rights based on the use of excessive force survives initial
Plaintiff’s Eighth Amendment claim and Defendants Cloninger,
Sheriff’s Office, and Gaston County Jail are dismissed.
IT IS THEREFORE ORDERED that Defendants Alan Cloninger,
Gaston County Sheriff’s Department, and Gaston County Jail and Plaintiff’s
claim based on the violation of his rights under the Eighth Amendment are
DISMISSED on initial review under 28 U.S.C. § 1915(e).
The Clerk of Court is instructed to mail a blank summons to Plaintiff to
fill out and identify Defendant Marlowe for service of process, and then return
the summons to the Court. Plaintiff is required to provide the necessary
information for the U.S. Marshal to effectuate service on Defendant Marlowe.
When the Court receives the summons from Plaintiff, the Clerk shall direct
the U.S. Marshal to effectuate service upon Defendant Marlowe.
Case 3:21-cv-00295-MR Document 10 Filed 09/07/21 Page 6 of 7
The Clerk is also instructed to update the docket in this matter to reflect
Plaintiff’s correct NCDPS Offender Number, 0916918, and to mail Plaintiff a
copy of Docket No. 7, which was returned as undeliverable.
IT IS SO ORDERED.
Signed: September 6, 2021
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