Crump v. Carver et al

Filing 33

MEMORANDUM OF DECISION AND ORDER that: Defts' 27 Motion to Dismiss is GRANTED, and the Pltf's Complaint is hereby DISMISSED; Pltf's 31 "Request for Injunction" is DENIED; and the Clerk is respectfully instructed to close this case. Signed by Chief Judge Martin Reidinger on 2/7/2024. (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. 3:22-cv-00541-MR

RAMAR DION BENJAMIN CRUMP,

)
)
Plaintiff,
)
)
vs.
)
)
BEN CARVER, et al.,
)
)
Defendants.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER comes before the Court on Defendants Ben Carver,
David E. Cothron, Dean Locklear, Katy Poole, and Saint T. Tapp’s Motion to
Dismiss. [Doc. 27]. Also pending is the Plaintiff’s pro se “Request for
Injunction.” [Doc. 31].
I.

BACKGROUND
The pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983 while

he was a pretrial detainee at the Mecklenburg County Jail, complaining of
incidents that allegedly began at the Marion Correctional Institution and at
the Scotland Correctional Institution.1 The Complaint passed initial review

1

The Scotland CI is located in the Middle District of North Carolina. [See Doc. 9 at 1,
n.1]. The Plaintiff is presently incarcerated at the Foothills Correctional Institution in the
Western District of North Carolina.

on the Plaintiff’s due process claims against: Ben Carver, the warden of
Marion CI; Saint Tapp, a unit manager at Marion CI; David Cothron, the
assistant superintendent of programs at Marion CI; and Dean Locklear and
Katy Poole, facility administrators at Scotland CI. [Doc. 9]. The Court
exercised supplemental jurisdiction over the Plaintiff’s North Carolina
negligence claims against the Defendants. [Id.].
The Defendants have now filed a Motion to Dismiss the Complaint
pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil
Procedure. [Doc. 27]. The Plaintiff was informed of his right to respond to
the Motion to Dismiss pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975). [Doc. 29]. The Plaintiff filed a Response [Doc. 32], and the time
to reply has expired.
Also pending is the Plaintiff’s “Request for Injunction” [Doc. 31], in
which he asks the Court to enjoin his present prison facility from delaying
and reviewing his outgoing legal mail.
II.

STANDARDS OF REVIEW
A.

Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal where
the court lacks jurisdiction over the subject matter of the lawsuit. “The plaintiff
has the burden of proving that subject matter jurisdiction exists.” Evans v.
2

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir.
1999). Moreover, “a federal court is obliged to dismiss a case whenever it
appears the court lacks subject matter jurisdiction.” Lovern v. Edwards, 190
F.3d 648, 654 (4th Cir. 1999). “A dismissal for lack of standing—or any other
defect in subject matter jurisdiction—must be one without prejudice, because
a court that lacks jurisdiction has no power to adjudicate and dispose of a
claim on the merits.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
A defendant may raise a “facial challenge” to subject matter jurisdiction
by asserting “that a complaint simply fails to allege facts upon which subject
matter jurisdiction can be based.” Kerns v. United States, 585 F.3d 187, 192
(4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
When a defendant makes a facial challenge to subject matter jurisdiction,
“the plaintiff, in effect, is afforded the same procedural protection as he would
receive under a Rule 12(b)(6)” motion. Id. Thus, “the facts alleged in the
complaint are taken as true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Id.
B.

Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), the central issue for
resolving a motion to dismiss is whether the complaint states a plausible
3

claim for relief. See Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009).
In considering a defendant’s motion, the Court accepts the plaintiff’s
allegations as true and construes them in the light most favorable to the
plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
255 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92.
Although the Court accepts well-pled facts as true, the Court is not
required to assume the truth of “bare legal conclusions.” Aziz v. Alcolac, Inc.,
658 F.3d 388, 391 (4th Cir. 2011). “The mere recital of elements of a cause
of action, supported only by conclusory statements, is not sufficient to survive
a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012).
The claims need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a
cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Consumeraffairs.com, 591 F.3d at 256. Namely the complaint is
required to contain “enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570; see also Consumeraffairs.com, 591 F.3d
at 255. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
4

(2009); see also Consumeraffairs.com, 591 F.3d at 255. The mere possibility
that a defendant acted unlawfully is not sufficient for a claim to survive a
motion to dismiss. Consumeraffairs.com, 591 F.3d at 256; Giacomelli, 588
F.3d at 193. Ultimately, the well-pled factual allegations must move a
plaintiff’s claim from possible to plausible. Twombly, 550 U.S. at 570;
Consumeraffairs.com, 591 F.3d at 256.
III.

PLAINTIFF’S ALLEGATIONS
The Plaintiff alleges that the North Carolina Supreme Court vacated

his “active sentence” on December 18, 2020, while he was incarcerated in
the NCDAC.2 [Doc. 1 at 5, 12-14]; see State v. Crump, 376 N.C. 375, 851
S.E.2d 904 (Dec. 18, 2020) (reversing Mecklenburg County Superior Court
convictions for assault with a deadly weapon with intent to kill, possession of
a firearm by a convicted felon, and conspiracy to commit armed robbery).
The Plaintiff further alleges that, between December 18, 2020 through July
2021, there were no warrants, charges, or notice of reinstatement of charges,
and there was no appeal by the State. [Doc. 1 at 14]. During that time, the
Defendants knew or should have known that he was eligible for release as
of December 18, 2020. [Id. at 12-13]. However, they did not investigate his
right to release, or serve him with a notice of his rights or a detainer. [Id.].

2

Formerly the North Carolina Department of Public Safety (NCDPS).
5

The Plaintiff alleges that he informed Defendant Tapp in mid-January
2021 that the sentence had been vacated, and provided him with copies of
the state court order, certification, and docket sheet, but that Tapp failed to
forward the matter to his supervisors; that Defendant Cothron was informed
of the issue by his subordinates at the Plaintiff’s behest around that same
time, but Cothron failed to speak to the Plaintiff, inquire into the matter, or
inform his superiors; that the Plaintiff informed Defendant Carver of the
matter via a letter that received no response; that Defendant Locklear was
presented a copy of the court order when the Plaintiff arrived at Scotland CI
on March 19, 2021, but he did not speak to the Plaintiff or inquire into the
matter, and said to “just let Raleigh handle it”; and that Poole should have
known that the Plaintiff was entitled to release, but never served him with a
notice of detainer or notice of prisoner’s rights to proceed. [Id. at 12-14].
The Plaintiff claims that “[e]ach Defendant was a state actor for which
the State of North Carolina was responsible for, who purported to act on
behalf of the State in serving a government function, and whom each in
acting out their function were willful participants in joint action with one
another in depriving plaintiff of his constitutional right to Due Process….” [Id.
at 13].

6

The Plaintiff claims that his “false imprisonment” past the date he
should have been released from custody caused various injuries, including:
severe mental and emotional distress; Major Depressive Disorder and Post
Traumatic Stress Disorder that require treatment; bruises and minor cuts;
and dangerous conditions in maximum custody. [Id. at 5].
IV.

DISCUSSION
A.

Exhaustion of Administrative Remedies

The PLRA requires a prisoner to exhaust his administrative remedies
before filing a § 1983 action. 42 U.S.C. § 1997e(a). The PLRA provides, in
pertinent part, that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” Id. In Porter v.
Nussle, the Supreme Court held that the PLRA’s exhaustion requirement
applies to all inmate suits about prison life. 534 U.S. 516, 532 (2002). The
Court ruled that “exhaustion in cases covered by § 1997e(a) is now
mandatory.” Id. at 524 (citation omitted). The Porter Court stressed that,
under the PLRA, exhaustion must take place before the commencement of
the civil action to further the efficient administration of justice. Id.

7

In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion
requirement requires “proper” exhaustion: “Administrative law ... requir[es]
proper exhaustion of administrative remedies, which ‘means using all steps
that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no
question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007) (citing Porter, 534 U.S. at 524). Because exhaustion of
administrative remedies is an affirmative defense, defendants have the
burden of pleading and proving lack of exhaustion. Id. at 216.
A prisoner, however, need only exhaust those remedies actually
available to him. Ross v. Blake, 578 U.S. 632, 635 (2016). “Available” means
“capable of use for the accomplishment of a purpose” and that which “is
accessible or may be obtained.” Id. at 642 (internal quotation marks and
citation omitted). Exhaustion is excused “if a prisoner, through no fault of his
own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008).

The Plaintiff, however, must show that

administrative remedies were not available. Graham v. Gentry, 413 F. App’x
660, 663 (4th Cir. 2011).
8

Finally, it is well-settled that a prisoner may not exhaust his
administrative remedies during the pendency of a Section 1983 action;
rather, he must fully exhaust all steps of the administrative process before
filing his lawsuit. See Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir.
2016); French v. Warden, 442 F. App’x 845, 846 (4th Cir. 2011).
Here, the NCDAC’s Administrative Remedies Procedures (ARP)
establishes a three-step procedure governing submission and review of
inmate grievances. Moore, 517 F.3d at 721. Inmates are required to exhaust
administrative remedies with the NCDAC in accordance with ARP. Id. An
inmate does not exhaust his administrative remedies with the NCDAC until
he completes all three steps of the ARP. Id.
In support of the Motion to Dismiss, the Defendants assert that the
Plaintiff was aware that he was required to exhaust his administrative
remedies, and that the Plaintiff admitted in his Complaint that he failed to do
so before commencing this action. [Doc. 28 at 27; see Doc. 1 at 6-8]. The
Defendants do not address, let alone refute, the Plaintiff's allegation that he
failed to exhaust through no fault of his own because, inter alia: he was told
that any grievance would not be processed if filed; and the ARP cannot be
used to address sentencing challenges. [Doc. 1 at 8; Doc. 32 at 6-7]. As
such, the Plaintiff has sufficiently alleged that, through no fault of his own, he
9

was prevented from availing himself of otherwise available administrative
remedies. See Moore, 517 F.3d at 725. The Court, therefore, will deny the
Defendants’ Motion to Dismiss for lack of exhaustion. See, e.g., McClary v.
Kalinski, No. 5:18-cv-00102-MR, 2019 WL 3956150, at *3 (W.D.N.C. Aug.
21, 2019) (denying defendant's motion to dismiss where plaintiff claimed that
he attempted to file a grievance but that it “got ripped up” by a staff member).
B.

Standing

A dispute is not a case or controversy if the plaintiff lacks standing.
Raines v. Byrd, 521 U.S. 811, 818 (1997). To establish standing, “a plaintiff
must show (i) that he suffered an injury in fact that is concrete, particularized,
and actual or imminent; (ii) that the injury was likely caused by the defendant;
and (iii) that the injury would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992)). In other words, a plaintiff must have
a sufficient “personal stake in the alleged dispute” and have a particularized
injury that a court can remedy. Raines, 521 U.S. at 819 (internal quotation
marks and citation omitted).
The Defendants seek dismissal under Rule 12(b)(1) because the
“Moving Defendants do not determine where inmates are housed or when
they are released from State custody.” [Doc. 28 at 12]. The Defendants
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argue that, because they lacked the authority to release the Plaintiff from
custody, they did not cause him any injury, and any injury that Plaintiff may
have suffered is not redressable in this lawsuit.3 [Id. at 12-13].
The Plaintiff does not allege in the Complaint that any Defendant had
the authority to release him from incarceration. [See generally Doc. 1]. He
presently argues that the Defendants had a “responsibility” to ensure that he
was timely released from prison as “reasonable jailers.” [Doc. 32 at 1-5]. In
support of this argument, he cites North Carolina law,4 the state court Order
vacating his conviction, and general supervisory liability and negligence
principles. [Id.]. He does not, however, clearly allege facts demonstrating
that the Defendants actually had the ability to release him. See Spokeo, Inc.
v. Robins, 578 U.S. 330, 338 (2016) (“Where … a case is at the pleading
stage, the plaintiff must clearly allege facts demonstrating each element [of
Article III standing].”) (citation and internal quotation marks omitted); see also

3

The Defendants also argue that the Plaintiff failed to demonstrate that he was injured
from being held in NCDAC instead of at MCJ. [Doc. 28 at 9-10]. The Court disagrees
with the Defendants’ characterization of the Plaintiff’s claim. The Court interprets the
Complaint as claiming overincarceration, not incarceration at the wrong location. [See
Doc. 1 at 12-13 (referring to false imprisonment and the right to immediate release)]. This
claim does not warrant further discussion, however, because the Court nevertheless
concludes that the Plaintiff has failed to demonstrate standing.
4

The Plaintiff cites N.C. Gen. Stat. § 15-10.1, which addresses detainers; § 15a-711(c),
which addresses the right to request a speedy trial on a detainer; and § 7A-27(a), which
addresses appeals that lie directly in the North Carolina Supreme Court.
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N.C. Gen. Stat. Ann. § 148-4 (“[t]he Secretary of the Department of Adult
Correction shall have control and custody of all prisoners serving sentence
in the State prison system….”).
The Plaintiff’s vague and conclusory allegations that the Defendants
should have acted pursuant to their general responsibilities as jailers, but
failed to do so, are insufficient. Id. The Plaintiff has, therefore, failed to
demonstrate causation or redressability and the Defendants’ Motion to
Dismiss will be granted for lack of standing. See Wright & Miller 13A Fed.
Prac. & Proc. Juris. § 3531.5 (3d ed.) (“Causation may provide one of the
useful means of addressing the question whether the plaintiff has sued the
proper defendant…. If this defendant has not caused the injury, a remedy
directed against him will not relieve the injury.”).
C.

Failure to State a Claim

To establish liability under 42 U.S.C. § 1983, a plaintiff must show that
the defendants “acted personally” to cause the alleged violation.

See

Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). As
such, the doctrine of respondeat superior does not apply in actions brought
under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
A supervisor can only be liable where (1) he knew that his subordinate “was
engaged in conduct that posed a pervasive and unreasonable risk of
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constitutional injury;” (2) his response showed “deliberate indifference to or
tacit authorization of the alleged offensive practices;” and (3) there was an
“affirmative causal link” between her inaction and the constitutional
injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (internal quotation
marks omitted).
The Defendants argue that the Plaintiff has not alleged any facts
showing that the Defendants’ actions deprived him of due process or that
they owed him a duty such that they were negligent under North Carolina
law. [Doc. 28 at 16-24].
As the Court explained supra, the Plaintiff has failed to adequately
allege that the Defendants had the authority to release him from custody.
Accordingly, he has failed to adequately demonstrate that the Defendants
owed him any process, deprived him of any right, or injured him under color
of state law. See Iqbal, 556 U.S. at 678 (“naked assertions devoid of further
factual enhancement” are not sufficient to survive a motion to dismiss). For
the same reasons, he has failed to adequately demonstrate that the
Defendants owed him a duty under North Carolina law such that they were
negligent for failing to carry out a duty. See Stein v. Asheville City Bd. of
Educ., 360 N.C. 321, 626 S.E.2d 263, 267 (2006) (“In the absence of a legal
duty owed

to

the

plaintiff,”

a

defendant
13

“cannot

be

liable

for

negligence”)(quoting Cassell v. Collins, 344 N.C. 160, 472 S.E.2d 770
(1996), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615,
507 S.E.2d 882 (1998)); see also Steele v. City of Durham, 782 S.E.2d 331,
334 (N.C. Ct. App. 2016) (whether a legal duty exists is a question of law for
the court to decide). Accordingly, the Defendants’ Motion to Dismiss will be
granted for failure to state a claim.
D.

Qualified Immunity

“Qualified immunity protects officers who commit constitutional
violations but who, in light of clearly established law, could reasonably
believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531
(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to
qualified immunity, the court must examine (1) whether the plaintiff has
demonstrated that the officer violated a constitutional right and (2) whether
that right was clearly established at the time of the alleged violation.” E.W.
ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation
marks omitted). The doctrine of qualified immunity “gives government
officials breathing room to make reasonable but mistaken judgments and
protects all but the plainly incompetent or those who knowingly violate the
law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation marks
omitted).
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Here, because the Plaintiff has not adequately alleged that any
Defendant violated a constitutional right, they are also entitled to qualified
immunity.

Accordingly, the Defendants’ Motion to Dismiss will also be

granted on this ground as well.
E.

Request for Injunction

Finally, the Plaintiff has filed a “Request for Injunction” in which he asks
the Court to enjoin his present prison, Foothills CI, from delaying and
reviewing his outgoing legal mail. [Doc. 31].
Courts generally lack authority to enjoin third parties not before it. See
Fed. R. Civ. P. 65(c)(2). “A court ordinarily does not have power to issue an
order against a person who is not a party and over whom it has not acquired
in personam jurisdiction.” Wright & Miller, supra, § 2956; R.M.S. Titanic, Inc.
v. Haver, 171 F.3d 943, 957 (4th Cir. 1999) (“Injunctive relief, by its very
nature, can only be granted in an in personam action commenced by one
party against another in accordance with established process.”).

No

Foothills CI employee is a defendant in this action; therefore, the Plaintiff’s
request for injunctive relief with respect to the Foothills CI is denied.

15

V.

CONCLUSION
For the reasons stated herein, the Defendant’s Motion to Dismiss is

granted on the grounds that the Plaintiff lacks standing and has failed to state
a claim upon which relief can be granted.

The Plaintiff’s Request for

Injunction is denied. The Clerk will be instructed to close this case.
IT IS, THEREFORE, ORDERED that:
1.

The Defendants’ Motion to Dismiss [Doc. 27] is GRANTED, and
the Plaintiff’s Complaint is hereby DISMISSED.

2.

The Plaintiff’s “Request for Injunction” [Doc. 31] is DENIED.

The Clerk is respectfully instructed to close this case.
IT IS SO ORDERED.
Signed: February 7, 2024

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