Johnson v. Thomas et al

Filing 9

ORDER granting 2 Plaintiff's Application to Proceed Without Prepayment of Fees or Costs for the limited purpose of this initial review of his complaint. Plaintiff's complaint 1 is dismissed without prejudice. The Clerk is instructed to terminate this action. Signed by Chief Judge Frank D. Whitney on 1/21/15. (Pro se litigant served by US Mail.)(smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-cv-117-FDW
ROBERT JOHNSON,

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Plaintiff,
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vs.
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PATRICIA THOMAS, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s pro se Complaint,
filed under 42 U.S.C. § 1983, (Doc. No. 1), and on Plaintiff’s Application to Proceed Without
Prepayment of Fees or Costs, (Doc. No. 2).
The Court first addresses Plaintiff’s application to proceed in forma pauperis. Plaintiff’s
ledger account record for the Watauga County Jail shows that as of the filing of the Complaint
Plaintiff had a negative canteen balance. See (Doc. No. 8). The Court will grant Plaintiff’s
application to proceed in forma pauperis, as it appears that he does not have sufficient funds with
which to pay the filing fee.
I.

BACKGROUND
Pro se Plaintiff Robert Johnson is a North Carolina pre-trial detainee currently

incarcerated at the Watauga County Jail in Boone, North Carolina. Plaintiff filed this action
pursuant to 42 U.S.C. § 1983 on June 17, 2014, naming as Defendants: Patricia Thomas,
identified as Chief Jailer, Watauga County Detention Center; Dee Dee Rominger, identified as

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Captain, Watauga County Sheriff’s Department; Chad Slagle, identified as Social Service
Supervisor, Watauga County Department of Social Services; Len D. Hagaman, identified as the
Sheriff of Watauga County; Nicki Triplett, identified as Social Worker, Watauga County
Department of Social Services; and Beth Berry, identified as Social Worker, Watauga County
Department of Social Services. Plaintiff alleges the following in the Complaint:
Ken O. Hagaman—Sheriff letting illegal things go on around here, knowing it.
Patricia Thomas---Chief Jailer who allows me and my wife to be threatened, and
harassed. Male jailers are watching my wife take showers female jailers deeply
forcing my wife to let them feel of her breasts nipples mainly and deep inside her
vaginal area. But don’t do other inmates that way. Dee Dee Rominger—Captain,
falsely makes up charges on people and makes things look good in her favor.
Even though me and my wife are not guilty of nothing. And has us falsely
charged and falsely imprisoned and knowing it to [sic]. Chad Slagle, Beth Berry,
and Nicki Triplett—Social Service workers illegally took our four children from
grandmothers house 4-13-14 while we have been in jail. We have illegally been
locked up since 4-4-14 and 4-5-14 and still are. Our kids are illegally being
punished as well as us.
(Doc. No. 1 at 4-5). As relief, Plaintiff seeks immediate release, monetary damages, the return of
his four children to him and his wife, and for all of the named Defendants to be fired. (Id. at 5).
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). 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
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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
For the following reasons, the Court will dismiss this entire action without prejudice.

First, to the extent that Plaintiff is challenging actions regarding child custody matters, “federal
courts are courts of limited jurisdiction and generally abstain from hearing child custody
matters” because matters of domestic relations are generally within the province of the state
courts. Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir. 2006). The Court further notes that, to the
extent that Plaintiff is complaining about any pending actions in the North Carolina state courts
regarding termination of parental rights, dismissal is also appropriate under the Younger
abstention doctrine, which provides that abstention is proper in federal court when (1) there is an
ongoing state court proceeding; (2) the proceeding implicates important state interests; and (3)
the plaintiff has an adequate opportunity to present the federal claims in the state proceeding.
Emp’rs Res. Mgmt. Co. v. Shannon, 65 F.3d 1126, 1134 (4th Cir. 1995). Younger abstention is
also appropriate to the extent that Plaintiff is complaining about any pending state criminal
charges against him.
Finally, as to Plaintiff’s allegations regarding an alleged assault in the jail against his
wife, Plaintiff lacks standing to sue on his wife’s behalf. See Allen v. Wright, 468 U.S. 737, 751
(1984) (explaining that to have standing to sue, “[a] plaintiff must allege personal injury fairly
traceable to the defendant’s allegedly unlawful conduct”); Inmates v. Owens, 561 F.2d 560, 56263 (4th Cir. 1977) (finding that to state a civil rights claim, one must allege that he, himself,
sustained the deprivation of a right, privilege, or immunity secured by the Constitution or federal

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law). Therefore, any claim related to the alleged assault of Plaintiff’s wife in the jail is subject to
dismissal without prejudice. As to Plaintiff’s claim that Defendants also “threatened” and
“harassed” him in jail, these allegations are too vague to state a Section 1983 claim for a
violation of a federal right; however, Plaintiff’s claims will be dismissed without prejudice to
Plaintiff to bring a state law claim for assault in state court if he so wishes.
IV.

CONCLUSION
For the reasons stated herein, Plaintiff’s claims will be dismissed without prejudice.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Application to Proceed Without Prepayment of Fees or Costs, (Doc.
No. 2), is GRANTED for the limited purpose of this initial review of his
Complaint.

2.

Plaintiff’s Complaint, (Doc. No. 1), is DISMISSED without prejudice.

3.

The Clerk is respectfully instructed to terminate this action.

Signed: January 21, 2015

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