Simpson v. Maynor

Filing 8

ORDER: Plaintiff's #1 Complaint is DISMISSED with prejudice for Plaintiff's failure to state a claim for relief. The Clerk is instructed to terminate this action. Signed by Chief Judge Martin Reidinger on 8/1/2022. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:22-cv-00093-MR
ANTHONY GEORGE SIMPSON,

)
)
Plaintiff,
)
)
vs.
)
)
TIMMOTHY D. MAYNOR,
)
)
Defendant.
)
________________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s on initial review of
Plaintiff’s Complaint, [Doc. 1], under 28 U.S.C. §§ 1915A and 1915(e).
Plaintiff is proceeding in forma pauperis. [Docs. 2, 7].
I.

BACKGROUND
Pro se Plaintiff Anthony George Simpson (“Plaintiff”) is a prisoner of

the State of North Carolina currently incarcerated at Johnston Correctional
Institution in Smithfield, North Carolina.1 He filed this action purportedly
pursuant to 42 U.S.C. § 1983 on July 8, 2022, naming Timmothy [sic]
Maynor, identified as the Warden of Catawba CC, as the sole Defendant.

Since February 2022, Plaintiff has been housed at Catawba Correctional Center
(“Catawba CC”) in Newton, North Carolina; Caldwell Corrections Center in Lenoir, North
Carolina; Lincoln Correctional Center in Lincolnton, North Carolina; Foothills Correctional
Institute in Morganton, North Carolina; and now Johnston Correctional Institution. [See
Doc. 1 at 2, 5, 7, 10; NCDPS Inmate Locator website]. Plaintiff is currently serving a life
sentence for second degree murder.
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[Doc. 1]. Plaintiff alleges that on three occasions from June 26, 2016, to
February 19, 2022, he has been denied protective custody “for constant
threatening from 3 different gang groups (Blood, Crip, BOS).” [Id. at 5]. He
has been told, “as long as nothing physical had happen[ed] to [him],” the only
thing they could do is transfer Plaintiff to a different facility. [Id.]. Plaintiff had
no problems until he arrived at Catawba CC in or around February 2022,
which has an open dorm setting, where Plaintiff was subject to “constant jabs
and threats” by other inmates. [Id. at 6]. On April 24, 2022, at Catawba CC,
Plaintiff got into a shoving match with another inmate, which resulted in
Plaintiff’s brief placement in restrictive housing.

[Id.].

Plaintiff believes

Defendant Maynor put Plaintiff in restrictive housing to allow Plaintiff time to
prepare a complaint that would result in protective custody placement. [Id.
at 6-7].
Plaintiff claims his rights under the Eighth Amendment have been
violated by the “lack of due process in accordance with the North Carolina
D.P.S. policy manual.” [Id. at 5].
Plaintiff alleges no actual injury, only fear of attack by gang members
if he “breaks asylum.” [See id. at 6-7]. For relief, Plaintiff seeks “habeas
corpus relief for post-conviction remedy” in the form of “reassignment to
protective control” at Warren Correctional Institution in accordance with
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NCDPS Policy, Chapter C, Section .1100 – .1102, Protective Control. [Id. at
8]. Plaintiff also asks for access to life enrichment programs and mental
health services and an interstate compact governing his probation on
release. [Id.].
Recently, Plaintiff filed an action with this Court seeking essentially
identical relief. [Civil Case No. 5:22-cv-00061-MR (“CV 5:22-cv-61”), Doc.
1]. Plaintiff moved to voluntarily dismiss that action because, by his own
admission, he was challenging NCDPS protective custody policy and the
relief he sought was available through other means. [Id., Doc. 6 at 1].
Plaintiff acknowledged there was “no cause for the complaint.” [Id., Doc. 7
at 1]. The Court granted Plaintiff’s motion and dismissed the action. [Id.,
Doc. 9 at 4]. Thereafter, Plaintiff filed a “Petition for Writ of Habeas Corpus
for Post Conviction Remedy” pursuant to 28 U.S.C. § 2241 in that action.
[Id., Doc. 11]. Plaintiff asked the Court to order that he be brought before
the NCDPS Facility Classification Committee to seek protective custody.
[Id., id.]. The Court denied Plaintiff’s petition, noting that § 2241 does not
apply to the relief Plaintiff sought and admonishing Plaintiff that he may not
file further documents in that case that purport to institute new actions or
seek new relief. The Court advised Plaintiff that he may seek protective
custody through the means afforded by NCDPS policy and procedure, not
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with this Court. [Id., id. at 3]. Nonetheless, Plaintiff promptly filed the instant
action, which again seeks the same relief. [See Doc. 1].
II.

STANDARD OF REVIEW
The Court must review Plaintiff’s 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. 28 U.S.C. § 1915A.
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
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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
Plaintiff purports to bring this Complaint pursuant to 42 U.S.C. § 1983,

but he seeks “habeas corpus relief for post-conviction remedy.” [Doc. 1 at
2, 10]. Regardless of the label of the action, it will be dismissed for the same
reasons as Plaintiff’s recent, related action. That is, Plaintiff may seek
protective custody and prison services through the means afforded by
NCDPS policy and procedure, not with this Court. Plaintiff has failed to state
any claim for relief cognizable by this Court under § 1983 or otherwise.
Moreover, there seems no reason why Plaintiff named Maynor, the
Warden of Catawba CI, as the Defendant in this action. Plaintiff has not been
housed at Catawba CI since February 2022 and has since been transferred
to Caldwell CC, Lincoln CC, Foothills CI, and finally to Johnston CI, where
he remains now. Even if the relief Plaintiff seeks were obtainable from this
Court, which it is not, Maynor is not a proper Defendant. Finally, Plaintiff is
now housed in a facility in the Eastern District of North Carolina, which falls
outside any jurisdiction this Court might have.
Because Plaintiff has failed to state a claim for relief and because
amendment would be futile, the Court will dismiss Plaintiff’s Complaint with
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prejudice.
IV.

CONCLUSION
For the foregoing reasons, the Court will dismiss Plaintiff’s Complaint

with prejudice.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Complaint [Doc. 1] is hereby DISMISSED with
prejudice for Plaintiff’s failure to state a claim for relief.

2.

The Clerk is instructed to terminate this action.

IT IS SO ORDERED.

Signed: August 1, 2022

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