Perez v. Huneycutt, et al

Filing 19

ORDER: 1) The 17 Amended Complaint passes initial review on the Plaintiff's Eighth Amendment claims against Defendants Huneycutt, Dye, Duncan and Daves. 2) The remaining claims are DISMISSED WITHOUT PREJUDICE. 3. T he Clerk of Court shall commence the procedure for waiver of service as set forth in Local Civil Rule 4.3 for Defendants Honeycutt, Dye, Duncan, and Daves. (Pro se litigant served by US Mail.) Signed by Chief Judge Martin Reidinger on 1/16/2023. (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00076-MR

OSCAR PEREZ,

)
)
Plaintiff,
)
)
vs.
)
)
FNU HUNEYCUTT, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the pro se
Amended Complaint [Doc. 17]. The Plaintiff has paid the full filing fee.
I.

BACKGROUND
The pro se incarcerated Plaintiff filed this civil rights action pursuant to

42 U.S.C. § 1983 addressing incidents that allegedly occurred at the
Alexander Correctional Institution, where he is presently incarcerated. [Doc.
1]. The Complaint passed initial review against Eighth Amendment claims
against Defendant Huneycutt, Dye, and Duncan with regards to the
conditions of his confinement, and the remaining claims were dismissed
without prejudice. [Doc. 12]. The Court granted the Plaintiff the opportunity
to amend, and the Amended Complaint is presently before the Court for initial
review. [Doc. 17].

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The Plaintiff again names FNU Huneycutt, FNU Dye, and FNU Duncan
as Defendants, and he additionally names as a Defendant FNU Daves, a
unit manager. [Id. at 1]. He asserts Eighth Amendment claims regarding the
conditions of his confinement and his serious medical and psychological
needs. [Id. at 2-3]. He claims the same injuries, and seeks the same relief
that he previously requested. [Id. at 9-10].
II.

STANDARD OF REVIEW
Despite the Plaintiff’s payment of the filing fee, the Court must conduct

an initial review and identify and dismiss the Amended Complaint, or any
portion of it, 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. 28 U.S.C. § 1915A.
In its frivolity review, this Court must determine whether the Amended
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 Amended

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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
The Amended Complaint refers to inmates other than the Plaintiff.

[See, e.g., Doc. 17 at 4]. However, as explained in the Order on initial review,
the Plaintiff may not assert claims on behalf of others. [See Doc. 12 at 910]. Therefore, to the extent that he is attempting to do so, those claims are
again dismissed.
The body of the Amended Complaint refers to individuals who are not
named as Defendants. [See, e.g., Doc. 17 at 6 (referring to “medical staff”
and “his psychologist”)]. These claims cannot proceed. See generally Fed.
R. Civ. P. 10(a) (requiring the title of the complaint to name all parties); see,
e.g., Shine v. Charlotte Mecklenburg Police Dep’t, No. 3:17-cv-306-FDW,
2018 WL 2943456 (W.D.N.C. June 12, 2018) (dismissing as nullities the
allegations against individuals not named as defendants in the caption as
required by Rule 10(a)). Therefore, to the extent that the Plaintiff attempts
to assert claims against individuals who are not Defendants, those claims
are dismissed.
The Plaintiff again asserts that Defendants Honeycutt, Dye, and
Duncan violated the Eighth Amendment with regards to the conditions of his
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confinement, and he additionally asserts this claim against Defendant
Daves. [Doc. 17 at 3-6]. Taking the Plaintiff’s allegations as true for
purposes of initial review and drawing all reasonable inferences in his favor,
the conditions of confinement claims pass initial review against Defendants
Honeycutt, Dye, Duncan, and Daves, in that such claims are not clearly
frivolous. [See Doc. 12 at 4-5].
The Plaintiff again asserts Eighth Amendment claims for deliberate
indifference to serious medical or psychological needs against Defendants
Honeycutt, Dye, Duncan, and he additionally asserts them against
Defendant Daves. [Doc. 17 at 6-10]. Taking the Plaintiff’s allegations as true
for purposes of initial review and drawing all reasonable inferences in his
favor, his deliberate indifference claims now pass initial review against
Defendants Honeycutt, Dye, Duncan, and Daves, in that such claims are not
clearly frivolous.
IV.

CONCLUSION
In sum, the Amended Complaint [Doc. 17] passes initial review on the

Plaintiff’s Eighth Amendment claims against Defendants Huneycutt, Dye,
Duncan, and Daves as described in this Order. The remaining claims are
dismissed without prejudice.

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ORDER
IT IS, THEREFORE, ORDERED that:
1. The Amended Complaint [Doc. 17] passes initial review on the
Plaintiff’s Eighth Amendment claims against Defendants Huneycutt,
Dye, Duncan and Daves.
2. The remaining claims are DISMISSED WITHOUT PREJUDICE.
3. IT IS FURTHER ORDERED that the Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendants Honeycutt, Dye, Duncan, and Daves, who are
alleged to be current or former employees of the North Carolina
Department of Public Safety.
IT IS SO ORDERED.
Signed: January 16, 2023

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