Womic v. Cortez et al

Filing 9

ORDER that Defts Alan Cloninger, Gaston County Sheriff's Department, and Shady and Pltf's claim based on the violation of his rights under the Eighth Amendment are DISMISSED on initial review under 28 U.S.C. § 1 915(e) re: Pltf's 1 Complaint. FURTHER ORDERED that Pltf's 8 Letter is STRICKEN from the record in this matter. The Clerk of Court is instructed to mail a blank summons to Pltf to fill out and identify Deft Cortez for service of process , and then return the summons to the Court. Pltf is required to provide necessary information for the U.S. Marshal to effectuate service on Deft Cortez. When the Court receives the summons from Pltf, the Clerk shall direct the U.S. Marshal to effectuate service upon Deft Cortez. Signed by Chief Judge Martin Reidinger on 9/09/2021. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-00315-MR
CALVIN JEROME WOMIC, JR.,

)
)
Plaintiff,
)
)
vs.
)
)
FNU CORTEZ, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

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].
I.

BACKGROUND
Pro se Plaintiff Calvin Jerome Womic, Jr., (“Plaintiff”) is a pretrial

detainee currently held at Gaston County Jail (the “Jail”) in Gastonia, North
Carolina. He filed this action on July 1, 2021, pursuant to 42 U.S.C. § 1983,
naming as Defendants FNU Cortez, identified as a Deputy at the Gaston
County Sheriff’s Office (“Sheriff’s Office”); Allen Cloninger, identified as the
Sheriff of Gaston County; the Sheriff’s Office;1 and “Shady,” identified as a

Plaintiff incorrectly names the Sheriff’s Office as the “Sheriff Department.” [Doc. 1 at
3].
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dog working for the Sheriff’s Office. [Doc. 6 at 2-3]. Plaintiff sues Defendants
Cortez and Cloninger in their individual and official capacities and purports
to sue Defendants Sheriff’s Office and Shady, the dog, in these capacities
as well. [Id. at 3]. Plaintiff alleges that on May 10, 2021 between 11:00 a.m.
and 12:45 p.m. in B-Block at Gaston County Jail the following occurred.
I was in a altercation with multiple Jail staff after I was
subdued & on the ground without risisting or being
agressive. I was hit multiple times in the head & face
by multiple officers. While I was on the ground
without risisting officer Cortez allowed his dog to
attack me on my hip while I was on the ground with
my right hand in handcuffs. Cortez repositioned his
dog to bit my upper left arm while my right arm still
remained in handcuffs. Then Cortez repositioned his
dog once again to attack my lower left arm. This
happened in front of the whole block. The camera’s
in the pod seen the whole incident, including every
inmate. I had to wait atleast 45 min – 1 hour before
medical attention & I passed out multiple times due
to blood lost. & They made me change my own
bandages without medical helping everyday.
[Doc. 1 at 4-5 (errors uncorrected)]. Plaintiff makes no allegations against
Defendant Cloninger or Defendant Sheriff’s Office. [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 various physical injuries from the
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assault by Defendant Cortez’s dog. [Id. at 5]. Plaintiff seeks $1 million from
each Defendant for his physical, mental, and emotional pain and suffering.
[Id.].
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). 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.
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
(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.
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Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION
“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
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 Cortez
under the Fourteenth Amendment based on the use of excessive force.

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Plaintiff’s claim under the Eighth Amendment, however, will be dismissed.
The Eighth Amendment does not apply to pre-trial detainees as Plaintiff here.
See Kingsley, 576 U.S. at 395-97.
Plaintiff has failed to state a claim against Defendants Cloninger, the
Sheriff’s Office, and Shady, the dog. Defendant Sheriff’s Office is not a
“person” subject to suit under § 1983. 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).
Finally, animals are not subject to suit under § 1983 or otherwise. The Court
will, therefore, dismiss Defendants Cloninger, Sheriff’s Office, and Shady on
initial review.
Plaintiff has recently filed a letter with the Court with no case caption
and no signature. [Doc. 8]. In the letter, Plaintiff claims certain acts of
retaliation being perpetrated against him at Gaston County Jail since filing
this lawsuit. [Id.]. Plaintiff seeks no relief in the letter. [See id.]. The Court
declines to consider this letter and will strike it from the record in this matter.
As Plaintiff was expressly directed in the Order of Instructions mailed to him
on July 1, 2021, letters to the Clerk of Court or the Judge will not be
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answered. [Doc. 3 at ¶ 5]. Furthermore, all documents filed in the case must
include the case number at the top of the first page. [Id. at ¶ 4]. Should the
Plaintiff seek relief from the Court, he must file a proper motion with the
Court. [Id. (“Only motions will be ruled on by the Court.”)]. Should Plaintiff
file improper documents in this case in the future, they may be summarily
dismissed and/or stricken.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that the Plaintiff’s

Complaint against Defendant Cortez for violation of Plaintiff’s Fourteenth
Amendment rights based on the use of excessive force survives initial
review.

Plaintiff’s Eighth Amendment claim and Defendants Cloninger,

Sheriff’s Office, and Shady are dismissed.
ORDER
IT IS THEREFORE ORDERED that Defendants Alan Cloninger,
Gaston County Sheriff’s Department, and Shady 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).
IT IS FURTHER ORDERED that Plaintiff’s letter [Doc. 8] is STRICKEN
from the record in this matter.
The Clerk of Court is instructed to mail a blank summons to Plaintiff to
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fill out and identify Defendant Cortez 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 Cortez.
When the Court receives the summons from Plaintiff, the Clerk shall direct
the U.S. Marshal to effectuate service upon Defendant Cortez.
IT IS SO ORDERED.
Signed: September 9, 2021

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