Barringer v. Stanley et al

Filing 9

ORDER directing the Clerk to send Plaintiff summons forms to fill out and return to the Court. After summons returned, Clerk will provide the forms to USM for service on defendants. The Clerk shall mail a copy of this Order to EDNC. Signed by Chief Judge Frank D. Whitney on 7/14/16. (Pro se litigant served by US Mail.)(smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-17-FDW
CHUVALO BARRINGER,

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Plaintiff,
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vs.
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FNU STANLEY, et al.,
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Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed
under 42 U.S.C. § 1983, (Doc. No. 1). See 28 U.S.C. §§ 1915(e) and 1915A. On June 27, 2016,
the Court entered an order waiving the initial filing fee and directing monthly payments to be
made from Plaintiff’s prison account. (Doc. No. 8). Thus, Plaintiff is proceeding in forma
pauperis.
I.

BACKGROUND

Pro se Plaintiff Chuvalo Barringer, a North Carolina state court inmate currently
incarcerated at Alexander Correctional Institution in Taylorsville, North Carolina, filed this
action on January 1, 2016, pursuant to 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff alleges that
Defendants violated his right not to be subjected to cruel and unusual punishment under the
Eighth Amendment to the U.S. Constitution based on an alleged sexual assault on October 22,
2015. In his Complaint, Plaintiff names the following persons as Defendants, all identified as
correctional officers at Alexander at all relevant times: (1) FNU Stanley; (2) FNU Tucker; and
(3) FNU McCoy.
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The following allegations by Plaintiff are taken as true for the purpose of this initial
review:
Officer Stanley, Officer Tucker, Office McCoy they let C-11 inmate Ten in my
cell at 4:30 or 5:00 am. They let him in my cell [and] watch[ed] him [ejaculate]
in my mouth and urinated on me. While I was sleep [sic] on 10-22-15. They said
they let inmate Grath in my cell and he was the inmate that gave me AIDS
because they said they trying to kill me. By infecting me with the AIDS. Plus
poisoning my food. I can’t eat, can’t sleep, watch the camera.
(Doc. No. 1 at 3). As relief, Plaintiff states that he seeks the following: “[f]irst, remove from this
facility $10,000 and to view the camera AIDS test rape kit.” (Id. at 4).
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. Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION
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The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” U.S.
CONST. amend. VIII, and protects prisoners from the “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). To establish an Eighth Amendment claim,
an inmate must satisfy both an objective component–that the harm inflicted was sufficiently
serious–and a subjective component–that the prison official acted with a sufficiently culpable
state of mind. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). The Eighth Amendment
protects inmates from sexual abuse. Schwenk v. Hartford, 204 F.3d 1187, 1196-97 (9th Cir.
2000).
The Court finds that this action survives initial review. That is, taking Plaintiff’s
allegations as true for the purposes of this initial review, Plaintiff states an Eighth Amendment
claim against Defendants based on his allegation that Defendants allowed another inmate to enter
Plaintiff’s cell and then sexually assault him, while Defendants watched and failed to intervene
to stop the sexual assault. See Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 202 (4th
Cir. 2002).
The Court further takes judicial notice, however, that Plaintiff currently has pending in
the Eastern District of North Carolina another Section 1983 action, which includes facts that are
strikingly similar to those alleged in this action. That is, in Plaintiff’s pending action in the
Eastern District of North Carolina, filed on February 18, 2015, Plaintiff alleges that, while he
was incarcerated at Maury Correctional Institution, the correctional officer defendants allowed
inmates to enter Plaintiff’s cell and sexually assault Plaintiff. Specifically, Plaintiff alleges the
following in his Complaint in the Eastern District, in which he has named as Defendants four
correctional officers who were employed at Maury Correctional Institution at all relevant times:
On 1-5-15 Officer Byrd an[d] officer Greene said that they be letting people
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inmates Cowboy, G, was in Cell 11, A Block, Cell 13, Alferd Teagey A-Block
also, said they be letting them in my cell and they be sticking they penis in my
mouth an[d] cumming [sic] in it. While I am sleep. Look at the camera. I have
something on my sheets. It wasn’t there when I went to sleep an[d] has a strange
smell. Sgt. Brown said it also, she said that’s not on your sheets. Cowboy is on
the other side. Officer Lamb said he let him in my cell. An[d] he also stuck his
penis in my mouth an[d] cum in it. Sgt. Brown said that G, Cell 11, has AIDS
and now you have it. Lamb say that Cowboy has AIDS and he gave it to you.
Officer Lane was trying to pull my pants down after he open my cell door, an[d]
ran out the room so somebody can rape you while you sleep. That what he told
me. When woke up my pants was unbutton. I don’t know why they keep
bothering me. They that Number 11 and Cowboy gave me AIDS. I file[d] a
grievance, but I have heard nothing yet. It’s been a month an[d] file a PREA
Prison Rape Elimination Act. They’re still investigating.
See Barringer v. Brown, 5:15-ct-03042-FL (E.D.N.C.), Doc. No. 1 at 3. This Court believes that
it is highly unlikely that these extremely similar incidents occurred at both Alexander
Correctional Institution and at Maury Correctional Institution. Nevertheless, for the purpose of
initial review, and accepting Plaintiff’s allegations as true, the Court will allow this action to go
forward at this time.
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review.
2.

The Clerk shall send Plaintiff summons forms to fill out and return to the Court so
that service may be made on Defendants. Once the Court receives all of the summons
forms from Plaintiff, the Court will provide the forms to the U.S. Marshal for service
on all of the named Defendants.

3. The Clerk shall mail a copy of this Order to the Eastern District of North Carolina,
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directed specifically to the chambers of the Honorable Louise Wood Flanagan,
District Judge.
Signed: July 14, 2016

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