Pacheco v. Wyatt et al

Filing 18

AMENDED ORDER re 13 Amended Complaint passes initial review. The Plaintiffs remaining claims are DISMISSED WITHOUT PREJUDICE. Vacating 16 Order. Signed by Senior Judge Graham Mullen on 2/5/2024. (Pro se litigant served by US Mail.)(kab)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:23-cv-118-GCM

ELIJAH E. PACHECO,

)
)
Plaintiff,
)
)
vs.
)
)
FNU WHITLEY, et al.,
)
)
Defendants.
)
___________________________________ )

AMENDED ORDER

THIS MATTER is before the Court on initial review of the pro se Amended Complaint1
[Doc. 13]. The Plaintiff is proceeding in forma pauperis. [Doc. 6].
I.

BACKGROUND
The pro se incarcerated Plaintiff, filed the instant action pursuant to 42 U.S.C. § 1983,

addressing incidents that allegedly occurred while he was a pretrial detainee at the Wilkes
County Jail (WCJ).2 Before the Complaint had been reviewed for frivolity, the Plaintiff
attempted to amend in a piecemeal fashion. [Doc. 8]. The Court denied the piecemeal
amendment and granted Plaintiff the opportunity to amend. [Doc. 12]. The superseding
Amended Complaint is now before the Court for initial review. [Doc. 13].
The Plaintiff names as Defendants the following WCJ employees: FNU Whitley, a major;
Shelby Wyatt, a captain; Roger Hamby, FNU McGrady, and FNU Hill, corporals; FNU Hues
and FNU York, sergeants; and FNU White, FNU Shumate, FNU Patrick, FNU Grant, FNU

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This Order replaces [Doc. 16], which is vacated.

2

Plaintiff’s present address of record is at the North Carolina Central Jail in Raleigh.

Norwood, FNU Ponder, FNU Plowman, FNU Tilley, and FNU Hicks, officers.3 The Plaintiff
asserts claims under the Eighth and Fourteenth Amendments for “cruel & unusual punishment,”
“pretrial punishment,” “failure to protect from assault,” “excessive use of force,” and “loss of
property.” [Doc. 13 at 3-5]. He describes his injuries as follows:
As a result of the cruel & unusual punishments I sustained hemmorhoids.
As a result of the excessive use of force I sustained right shoulder tear.
As a result of the failure to protect, I sustained a left should tear, and head
wounds.
The only treatment I received for these injuries was a penetrating lubrication
ointment for the hemmorhoids.
I was given x-rays for my shoulder, but was denied an MRI.
[Doc. 13 at 5] (errors uncorrected); [see also Doc. 13-1]. The Plaintiff seeks compensatory and
punitive damages. [Doc. 13 at 5; Doc. 13-1 at 3-5, 7-9, 11].
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Amended

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. 28 U.S.C. § 1915A.

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The Plaintiff specifies that he is suing Defendants Whitley and Wyatt in their individual and official capacities, and
that he is suing Defendants Hamby and McGrady only in their individual capacities. [See Doc. 13 at 2-3]. He does
not specify whether he is suing the remaining Defendants in their individual capacities, their official capacities, or
both.

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In its frivolity review, this Court must determine whether a 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
To state a claim under § 1983, a plaintiff must allege that he was deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was
committed by a “person” acting under color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v.
Talevski, 599 U.S. 166 (2023).
A. Parties
The body of the Complaint contains allegations against individuals who are not named as
defendants in the caption as required by Rule 10(a) of the Federal Rules of Civil Procedure.
[See, e.g., Doc. 13-1 at 3, 7-9, 11 (referring to Phillips, Prevette, Wilson, Absher, Anderson,
Thomas, Cockerham)]; Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the
parties[.]”); Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“[T]o make someone a party
the plaintiff must specify him in the caption and arrange for service of process.”); Perez v.
Humphries, No. 3:18-cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A
plaintiff’s failure to name a defendant in the caption of a Complaint renders any action against
the purported defendant a legal nullity.”). The Court also notes that many of the Plaintiff’s

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allegations use pronouns or vague terms such that the Court cannot determine the individual(s) to
whom the Plaintiff refers. [See, e.g., Doc. 13-1 at 4 (referring to “several other officers”)]; Fed.
R. Civ. P. 8(a)(2) (requiring a “short and plain statement of the claim showing that the pleader is
entitled to relief”); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations,
unsupported by specific allegations of material fact are not sufficient); Dickson v. Microsoft
Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly,
that support each element of the claim). The allegations directed at individuals not named as
Defendants, or which are not clearly attributed to any Defendant, are dismissed without
prejudice.
B. Official Capacity Claims
The Plaintiff asserts claims against Defendants Whitley and Wyatt in their official
capacities. [Doc. 13 at 2].
Suits against an officer in his official capacity “generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473
U.S. 159, 165 (1985) (quoting Monell v Dep’t of Soc. Servs. of the City of New York, 436 U.S.
658, 690 n. 55 (1978)). The Office of Sheriff is not liable under § 1983 for an employee’s acts
“unless action pursuant to official municipal policy of some nature caused [the] constitutional
tort.” Collins v. City of Harker Heights, 503 U.S. 115, 120-21 (1992) (quoting Monell, 436 U.S.
at 691). That is, “[f]or a governmental entity to be liable under section 1983, the official policy
must be the moving force of the constitutional violation.” Moore v. City of Creedmoor, 345
N.C. 356, 366, 481 S.E.2d 14, 21 (1997) (internal quotation marks and citations omitted). “Thus,
the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Id.
(quoting Monell, 436 U.S. 658, 694).

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The Plaintiff does not appear to allege that Defendants Whitley or Wyatt violated his
constitutional rights pursuant to a municipal custom or policy. The Plaintiff’s only claim
addressing detention center policy appears to be his allegation that Defendant McGrady violated
his rights by confiscating envelopes in which Plaintiff’s legal mail was received refusing
Plaintiff to retain them pursuant to “Jail’s policy.” [Doc. 13-1 at 10]. Assuming arguendo that
such claim would pass initial review, it would be unable to do so because the Plaintiff has sued
Defendant McGrady only in his individual capacity. [Doc. 13 at 3]. Therefore, to the extent that
the Plaintiff has attempted to assert Monell claims, they have failed initial review.
C. Pretrial Punishment
The Plaintiff appears to claim that Major Whitley and Captain Wyatt failed to “procure”
him in court for a first appearance and probable cause hearing in his criminal case, but that he
was nevertheless detained “in an act of pretrial punishment.” [Doc. 13 at 5; Doc. 13-1 at 2].
The Plaintiff has not articulated any facts to plausibly show that Defendant Whitley or
Wyatt deprived him of a proceeding in his criminal cases, that transporting him or continuing to
detain him was objectively unreasonable, or that they any authority whatsoever over his criminal
case including his court hearings and detention decisions. See generally Fed. R. Civ. P. 8(a)(2);
Simpson, 900 F.2d at 35; Dickson, 309 F.3d at 201-02. Moreover, to the extent that the Plaintiff
is attempting to challenge the validity of his detention, a § 1983 action is not the appropriate
means to do so. See generally Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (when a state
prisoner seeks immediate release or a speedier release from imprisonment, his sole federal
remedy is a writ of habeas corpus). The Plaintiff’s claim for “Pretrial Punishment” is, therefore,
dismissed.
D. Loss of Property

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Plaintiff claims that Defendant Tilley neglected to properly inventory some of his property
at intake. [Doc. 13-1 at 3].
Plaintiff has failed to state a due process claim based on the deprivation of his personal
property because he has an adequate post-deprivation remedy in state tort law. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (stating that intentional deprivations of property do not violate
the Due Process Clause if a meaningful post-deprivation remedy for the loss is available); Wilkins
v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983) (“Under North Carolina law, an action for conversion
will lie against a public official who by an unauthorized act wrongfully deprives an owner of his
property.”). The Court, therefore, will dismiss Plaintiff’s claims addressing the alleged
mishandling and loss of his property.
E. Conditions of Confinement
The Plaintiff describes several incidents in which he was allegedly removed from his cell,
forcibly placed in a restraint chair without a disciplinary hearing, then was held in a padded cell
for several hours and up to a day before being returned to his usual cell. He alleges that this
occurred: in late December 2022 or early January 2023 after the Plaintiff beat on a door at
mealtime, refused to submit to officers, then punched his cell door open with his fists [Doc. 13-1
at 4]; on May 30, 2023 when he repeatedly pressed the emergency intercom, requesting to speak
to a female officer whose voice he found to be calming, despite officer instructions to use the
intercom only for emergencies [id. at 5]; on July 11, 2023, when he repeatedly requested a copy
of an incident report from officers and “via intercom” [id. at 8]; on July 28, 2023, when he
repeatedly refused a meal tray, shoved the tray at an officer with his foot causing the officer to
spill it, struggled over a door’s movement with the officer, and refused to submit to officers [id.
at 9]; and on September 1, 2023, when he snatched half of an envelope from an officer’s hand,

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refused to return it, and refused to submit to officers [id. at 10-11]. For the September 1 incident,
he additionally alleges that Officers Shumate and White, and Corporal Hamby forcibly placed
him in the restraint chair in a contorted position, that they used extremely tight restraints that cut
off his circulation, and that he was refused water for two hours while he was restrained. [Id. at
11]. He claims that these incident caused him pain and suffering, mental and emotional damages,
and contributed to him having hemorrhoids for which he will likely require surgery and/or
physical and mental therapy. [See id. at 4, 11].
An individual pretrial detainee may raise a substantive due process challenge to his
conditions of confinement “where they are so disproportionate or arbitrary that they are not
related to legitimate penological objectives and amount to punishment.” Tate v. Parks, 791 F.
App’x 387, 390 (4th Cir. 2019) (citing Williamson v. Stirling, 912 F.3d 154, 174-76 (4th Cir.
2018)). “To prevail on such a claim, a detainee must show that the challenged treatment or
conditions were either (1) imposed with an express intent to punish, or (2) not reasonably related
to a legitimate nonpunitive objective, in which case an intent to punish may be inferred.” Id.
(citing Williamson, 912 F.3d at 178).
Construing the allegations liberally and drawing all inferences in Plaintiff’s favor, the
claims addressing the September 1 incident will be allowed to pass initial review against
Defendants Shumate, White, and Hamby in that it is not clearly frivolous. However, with regards
to the remaining incidents, the Plaintiff has not plausibly alleged that any Defendant acted with
express intent to punish him, nor has he plausibly alleged that these actions were not reasonably
related to a legitimate non punitive objective in light of his admittedly disruptive, oppositional,
and/or aggressive behavior in each incident. See Pugh v. Evans, No. 5:11-CT-3239-D, 2012 WL
6892816, at *3 (E.D.N.C. June 20, 2012), aff’d 475 F. App’x 934 (4th Cir. 2012) (finding that a

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pre-trial detainee being held in the restraint chair for two hours, after he used the prison’s
intercom system inappropriately, was not “an unreasonable period of time,” and noting that
courts have held that the “use of devices such as restraint chairs ... have repeatedly been found to
be constitutional when used appropriately”). The Plaintiff’s claim about the conditions of his
confinement on September 1, 2023, therefore, will be allowed to proceed against Defendants
Shumate, White, and Hamby, and the remaining claims are dismissed without prejudice.
F. Excessive Force
The Plaintiff appears to claim that Defendants Grant, Hamby, Shumate, and White also
used excessive force against him during the September 1 incident. He claims that these
Defendants forcefully seized him; “aggressively” forced him into a restraint chair while
“contorting [his] neck, shoulders and arms” and “forcing, pushing, twisting and even pouncing
on [him]…;” applied excessively tight restraints to him; and stated “try picking up 300 pounds
bitch!’” [13-1 at 10-11]. The Plaintiff alleges that, when he was released around two hours later,
he noticed a “blistering scar” on his right bicep and shoulder joint, which he showed to Officers
White, Shumate, Grant, and Patrick, who provided no care.4 [Id. at 11]. The “contortion” caused
him “a great deal of pain and discomfort and resulted in the spraining/tearing of [Plaintiff’s] right
shoulder joint/ muscle and spraining of [his] neck.” [Id.].5
The Fourteenth Amendment “protects a pretrial detainee from the use of excessive force
that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To state an
excessive force claim, a pretrial detainee must show only that the force “purposely or knowingly

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It does not appear that the Plaintiff is asserting a claim for deliberate indifference to a serious medical need. Had he
done so, it would be dismissed because he has failed to plausibly allege that he had a serious medical need, or that
the Defendants intentionally, knowingly, or recklessly failed to act appropriately to address a substantial risk of
serious harm that the condition posed. See generally Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023).
The Plaintiff has attached to his Amended Compliant two “Excessive Force – Witness Statements” by Casey
Prevette and Dalton Roberts. [Doc. 13-1 at 12].
5

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used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389 (2015).
The standard for assessing a pretrial detainee’s excessive force claim is “solely an objective
one.” Id. In determining whether the force was objectively unreasonable, a court considers the
evidence “from the perspective of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396).
Construing the allegations liberally and drawing all reasonable inferences in favor of the
Plaintiff, the excessive force claim against Defendants Shumate, White and Hamby will be
allowed to pass initial review in that it is not clearly frivolous.
G. Failure to Protect
The Plaintiff claims that he reported that he was in potential danger from his cellmate in
August 2022, and that he was immediately placed in protective custody. [Doc. 13-1 at 6]. He
remained in segregation for his protection for almost a year, until June 28, 2023 when, during
Defendant Hues’ shift, Plaintiff was brought back to the pod where Plaintiff’s ex-cellmate was
still being housed. On July 9, 2023, the Plaintiff’s ex-cellmate and another inmate punched,
kicked, and stomped the Plaintiff and tackled him to the ground, causing a severe tear/sprain of
his left “shoulder cuff.” [Id.]. Plaintiff claims that Defendants Hues, White, and “the other
officers” failed to protect him from this assault. [Id.].
A pretrial detainee’s failure to protect claim constitutes a due process claim under the
Fourteenth Amendment. Farmer v. Brennan, 511 U.S. 825 (1994); Brown v. Harris, 240 F.3d
383, 388-90 (4th Cir. 2001) (applying Farmer to a pretrial detainee’s failure to protect and
medical claims). A pretrial detainee states a Fourteenth Amendment claim for deliberate
indifference to a serious risk of harm on the “purely objective basis that the ‘governmental
action’ they challenge is not ‘rationally related to a legitimate governmental purpose’ or is

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‘excessive in relation to that purpose.’” Short v. Hartman, 87 F.4th 593, 611 (4th Cir. 2023)
(quoting Kingsley, 576 U.S. at 398). That is, the plaintiff must show that the defendant’s action
or inaction was “objectively unreasonable.” Id. (quoting Kingsley, 576 U.S. at 387). It is not
enough for the plaintiff to allege that the defendant negligently or accidentally failed to “do
right” by him. Id. at 612.
Here, the Plaintiff has failed to plausibly allege that any Defendant acted in an
objectively unreasonable manner by returning him to the same pod as his ex-cellmate, where the
Plaintiff’s report of fear had occurred nearly a year earlier. Nor does Plaintiff suggest that
placing him in the same pod as his former cellmate was anything more than negligent or
accidental. See Short, 87 F.4th at 612. Accordingly, the Plaintiff’s failure to protect claims are
dismissed.
IV.

CONCLUSION
In sum, the Amended Complaint has passed initial review against Defendants Hamby,

Shumate, and White for the conditions of his confinement and for the use of excessive force on
September 1, 2023. The remaining claims are dismissed without prejudice.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Amended Complaint [Doc. 13] passes initial review on the Plaintiff’s § 1983
claims regarding the conditions of his confinement and the use of excessive force
against Defendants Hamby, Shumate, and White as described in this Order.
2. The Plaintiff’s remaining claims are DISMISSED WITHOUT PREJUDICE.
3. The Clerk is respectfully instructed to mail three blank summons forms to the Plaintiff,
which the Plaintiff shall fill out and return for service of process on Defendants Hamby,

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Shumate, and White.

Once the Court receives the completed summonses from

Plaintiff, the Clerk shall direct the U.S. Marshal to effectuate service upon Defendants.
4. The Order entered on January 17, 2024 [Doc. 16] is VACATED.
IT IS SO ORDERED.

Signed: February 5, 2024

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