Fraley v. Spaventa et al

Filing 16

ORDER that the Clerk of Court shall commence the procedure for waiver of service as set forth in Local Rule 4.3 for Defendants Spaventa, Walker and Poteat, who are current or former employees of NCDPS. Signed by Chief Judge Frank D. Whitney on 6/20/2018. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-201-FDW
SHAWN GERMAINE FRALEY,

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

ORDER

THIS MATTER is before the Court on periodic status review.
Pro se Plaintiff Shawn Germaine Fraley filed this action on November 3, 2017, pursuant
to 42 U.S.C § 1983. (Doc. No. 1). Plaintiff has named the following three Defendants, identified
as employees at Alexander Correctional Institution at all relevant times: (1) FNU Spaventa,
identified as a correctional officer at Alexander; (2) FNU Walker, identified as a correctional
officer at Alexander; and (3) FNU Poteat, identified as a Unit Manager at Alexander. Plaintiff
alleges that on May 20, 2017, at 10:00 pm, while Plaintiff was incarcerated at Alexander in Cblock on the Red Unit, Defendants Spaventa and Walker physically and sexually assaulted
Plaintiff. Specifically, Plaintiff alleges that Officer Spaventa assaulted Plaintiff while Plaintiff
was in his cell, punching him in the face three times while Plaintiff was handcuffed behind his
back, leaving the left side of Plaintiff’s face swollen. Plaintiff also alleges that Defendant Walker
assaulted Plaintiff sexually, while handcuffing Plaintiff behind his back, by “placing his penis” on
Plaintiff. Finally, as to Defendant Poteat, Plaintiff alleges that Poteat was the Unit Manager at
Alexander and violated Plaintiff’s due process rights by refusing to allow Plaintiff to have a
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disciplinary hearing, and that Plaintiff was found guilty of certain, unspecified charges, without a
hearing. On April 10, 2018, the US. Marshal returned the summons forms for these Defendants
as unexecuted. (Doc. Nos. 11, 12, 14).
This Court recently enacted Local Rule 4.3, which sets forth a procedure to waive service
of process for current and former employees of the North Carolina Department of Public Safety
(“NCDPS”) in actions filed by North Carolina State prisoners. Due to the difficulty the U.S.
Marshal is experiencing in attempting service of process, the Court will order the Clerk to
commence the procedure for waiver of service as set forth in Local Rule 4.3 for the unserved
Defendants.
IT IS THEREFORE ORDERED that:
1.

The Clerk of Court shall commence the procedure for waiver of service as set forth
in Local Rule 4.3 for Defendants FNU Spaventa, FNU Walker, and FNU Poteat,
who are current or former employees of NCDPS.

2.

The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.
Signed: June 20, 2018

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