Nickerson v. Anderson et al

Filing 6

ORDER that Plaintiff's Complaint fails initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B) for Plaintiff's failure to state a claim for relief and shall be DISMISSED WITHOUT PREJUDICE in accorda nce with the terms of this Order. IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days in which to amend his Complaint in accordance with the terms of this Order. IT IS FURTHER ORDERED that Plaintiff's 4 discovery request is STRICKEN from the record in this matter. The Clerk is respectfully instructed to mail Plaintiff a blank prisoner § 1983 form. Signed by Chief Judge Martin Reidinger on 9/25/2024. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:24-cv-00819-MR
LINDO NICKERSON,

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

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint, [Docs. 1, 1-2, 1-3], filed under 42 U.S.C. § 1983, see 28 U.S.C.
§§ 1915(e)(2) and 1915A, and Plaintiff’s discovery request [Doc. 4]. Plaintiff
is proceeding in forma pauperis in this matter. [Docs. 2, 5].
I.

BACKGROUND
Pro se Plaintiff (“Plaintiff”) is a prisoner of the State of North Carolina

currently incarcerated at Orange Correctional Center in Hillsborough, North
Carolina. On September 9, 2024, he filed this action pursuant to 42 U.S.C.
§ 1983, naming FNU Anderson and FNU Young, both identified as Sergeants
at Gaston Correctional Center (“Gaston CC”) in Dallas, North Carolina, as
Defendants. [Doc. 1]. Plaintiff names them in their individual capacities only.
[Id. at 2]. Plaintiff alleges as follows.

On October 17 and October 19, 2023, at Gaston CC, Inmate Whidbee,
Plaintiff’s bunkmate, asked Defendants Anderson and Young to move
Whidbee to another bunk, but they refused. [Doc. 1 at 13; Doc. 1-3 at 1].
Plaintiff was unaware of any problem between himself and Whidbee. [Id.].
On the morning of November 7, 2023, Inmate Whidbee “took a master
lock and put it in a sock and hit [Plaintiff] on the left side of [his] head”
because Plaintiff hung a towel on the side of his bunk. [Doc. 1-3]. After
Whidbee hit Plaintiff the first time, the lock came out of the sock and Whidbee
ran into the hallway where “the officers” were sitting at a desk. When the
officers saw “all the blood” on the Plaintiff, an officer grabbed the Plaintiff and
Plaintiff “went to the floor.” Whidbee “came around” and grabbed Plaintiff’s
t-shirt and “rib it.” “[T]he officers” handcuffed the Plaintiff, put him in a chair
in the hallway, and took pictures of his injury. [Id.].
Later that day, after returning from the hospital and while Plaintiff and
Whidbee were in segregation, Inmate Whidbee told Plaintiff that he was a
blood gang member, that he knew Plaintiff was a snitch, and, among other
things, threatened Plaintiff’s family and more harm to the Plaintiff. [Doc. 12].
Plaintiff claims that Defendants violated his rights under the Eighth
Amendment. [Id. at 3]. Plaintiff claims he suffered a head injury. Plaintiff
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seeks monetary relief, including punitive damages. [Id. at 5].
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding pro se, 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, § 1915A requires an initial
review of a “complaint in a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a governmental entity,” and
the court must identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint 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 from 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 § 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 by a “person” acting under
color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski,
599 U.S. 166, 143 S.Ct. 1444 (2023).
The Eighth Amendment’s Cruel and Unusual Punishments Clause
imposes on prison officials a duty to protect prisoners from violence at the
hands of other prisoners and other prison officials. See Farmer v. Brennan,
511 U.S. 825, 833 (1994). Still, not “every injury suffered by one prisoner at
the hands of another . . . translates into constitutional liability for prison
officials responsible for the victim’s safety.” Id. at 834. To state a claim
against a prison official for failure to protect, an inmate must show: (1)
“serious or significant physical or emotional injury,” and (2) that prison
officials exhibited deliberate indifference to inmate health or safety.”
De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation
marks omitted). To be deliberately indifferent, a prison official must “know of
and disregard an objectively serious … risk of harm.” Id.

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Taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, Plaintiff has nonetheless failed to state a claim under
the Eighth Amendment based on the failure to protect. Plaintiff alleges only
that Inmate Whidbee asked Defendants to move him (Whidbee) to another
bunk and that Defendants refused. Plaintiff alleges that he was unaware of
a problem between himself and Whidbee. [Doc. 1-3 at 1]. Significantly,
Plaintiff does not allege that Defendants knew that there was an issue
between Plaintiff and Whidbee, let alone any facts showing that they had
knowledge of an objectively serious risk of harm to Plaintiff by his continued
bunking with Whidbee. Because Plaintiff has failed to state a claim for relief,
Plaintiff’s Complaint fails initial review, and the Court will dismiss it without
prejudice.
The Court, however, will allow Plaintiff to amend his Complaint to state
a claim for relief, if the facts support such amendment.
Also pending is a discovery request filed by Plaintiff. [Doc. 4]. The
Court will strike this improper filing. As Plaintiff was expressly advised in the
Standing Order of Instructions, discovery requests are not filed with the
Court. [See Standing Order, ¶ 7]. They should only be served on the
opposing party and only after the Court enters its Pretrial Trial Order and
Case Management Plan in this case.
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Plaintiff is cautioned to review the Order of Instructions, the Local
Rules of this Court, and the Federal Rules of Civil Procedure before
filing documents with this Court. Any future improper filings may be
summarily dismissed and/or stricken from the record.
IV.

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

Complaint fails initial review and will be dismissed without prejudice. The
Court will allow Plaintiff thirty (30) days to amend his Complaint, if he so
chooses, to properly state a claim upon which relief can be granted in
accordance with the terms of this Order. Any amended complaint will be
subject to all timeliness and procedural requirements and will supersede the
Complaint. Piecemeal amendment will not be permitted. Should Plaintiff fail
to timely amend his Complaint in accordance with this Order, the Court will
dismiss this action without prejudice.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint fails initial
review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B) for Plaintiff’s
failure to state a claim for relief and shall be DISMISSED WITHOUT
PREJUDICE in accordance with the terms of this Order.

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IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days in
which to amend his Complaint in accordance with the terms of this Order. If
Plaintiff fails to so amend his Complaint, the matter will be dismissed without
prejudice.
IT IS FURTHER ORDERED that Plaintiff’s discovery request [Doc. 4]
is STRICKEN from the record in this matter.
The Clerk is respectfully instructed to mail Plaintiff a blank prisoner §
1983 form.
IT IS SO ORDERED.
Signed: September 25, 2024

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