United States District Court, W.D. North Carolina, Asheville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court on initial review of Plaintiff's Complaint, filed under 42 U.S.C. § 1983, (Doc. No. 1); on Plaintiff's two separate Motions to Appoint Counsel, (Doc. Nos. 3; 9); on Plaintiff's Motion for Order to Show Cause, Motion for Preliminary Injunction, and Motion for Temporary Restraining Order, (Doc. No. 4); and on Plaintiff's Motion to Show Cause for a Preliminary Injunction, and Motion for Temporary Restraining Order, (Doc. No. 10).
Pro se Plaintiff Terrence Javarr Ross, a North Carolina state court inmate currently incarcerated at Mountain View Correctional Institution in Spruce Pine, North Carolina, filed this action on April 21, 2014, pursuant to 42 U.S.C. § 1983. On June 19, 2009, Plaintiff was convicted of, among other things, being a habitual felon in Cleveland County Superior Court. Here, Plaintiff brings various claims against Defendants, including excessive force in violation of his constitutional right not to be subjected to cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution, failure to protect in violation of the Eighth Amendment, and unreasonable search and seizure in violation of the Fourth Amendment, arising out of an alleged incident on May 14, 2013, when Defendant Conner allegedly used excessive force against Plaintiff and tried to extract DNA from Plaintiff through the use of force and without a search warrant that allowed use of force. In his Complaint, Plaintiff names the following persons as Defendants: (1) Randy Conner, identified as a detective with the Shelby Police Department; (2) Derwin Briscoe, identified as a captain in the Cleveland County Sheriff's Department; (3) Officer Mason, identified as a detention officer with the Cleveland County Sheriff's Department; (4) Officer Piercy, identified as a detention officer with the Cleveland County Sheriff's Department; (5) Duane D. Terrell, identified as an administrator with Marion Correctional Institution; and (6) Captain McLaughlin, identified as a captain with Marion Correctional Institution.
Specifically, Plaintiff alleges in the Complaint that on May 6, 2013, Defendant Randy Conner came to Marion Correctional Institution where Plaintiff was incarcerated. (Doc. No. 1 at 4). Plaintiff was told someone wanted him in medical. Plaintiff went to medical, where he was told to go into one of the exam rooms. Plaintiff walked into an exam room, where Defendant Conner told him that he had come to get a DNA sample from Plaintiff to test a gun found in 2008. (Id. at 4). Plaintiff informed Defendant Conner that he already gave a DNA sample. Defendant Conner told Plaintiff that he "can give it to me now or I'll get you back to Shelby and beat it out of you." (Id. at 5). Plaintiff refused again. Defendant Conner then attempted to have the corrections staff assist him in taking a DNA sample by force. The corrections staff refused and Defendant Conner then left the prison. When Plaintiff returned to his cell he notified Defendant McLaughlin, the officer in charge, about what had taken place and asked about what process would need to be taken to press charges against Defendant Conner for the threats he made against Plaintiff.
Plaintiff alleges that on May 14, 2013, he was brought to Cleveland County on a writ of habeas corpus ad prosequendum. (Id. at 6). When Plaintiff arrived at the county jail, he contacted his court-appointed lawyer Thomas Wilson, who informed Plaintiff that he had not been made aware that Plaintiff was being brought back on a writ. (Id.). Plaintiff alleges that, on that same day, Defendant Mason came to Plaintiff's cell, shackled him, and told him someone was there to see him. Defendant Mason walked Plaintiff up front and sat him on a bench in front of the control room. Defendant Conner exited the control room and then put Plaintiff in handcuffs. (Id. at 6). Defendant Conner then gave Plaintiff what Conner said was a court order for Plaintiff's DNA. Plaintiff refused to give his DNA. Defendant Conner grabbed Plaintiff by the arm and tried to make him go with him by force. (Id. at 7). Defendant Conner instructed Defendants Mason and Piercy to grab Plaintiff. Plaintiff was still seated on the bench, fully handcuffed and shackled. (Id.). Defendant Mason held Plaintiff down on his left side, and Defendant Piercy held Plaintiff down on the right side. Defendant Conner grabbed Plaintiff by his nose, cutting off his oxygen supply. Defendant Conner then beat Plaintiff's head into a cement wall numerous times and he then struck Plaintiff in the face numerous times with a closed fist. (Id. at 8).
Plaintiff alleges that, throughout the entire incident, Plaintiff informed Defendants Mason and Piercy that what they were doing was contrary to the law. Defendant Conner got back on the elevator and left. Defendant Mason instructed Defendant Piercy to call someone. Several minutes later, Defendant Piercy returned, informing Defendant Mason that he had spoken with Defendant Captain Briscoe. Defendant Briscoe had stated that what Plaintiff had told them was the truth-i.e., that Conner was not allowed to use force against Plaintiff to obtain DNA. (Id. at 9). Defendant Conner then returned and stated, "You ready for some more?" Defendant Mason informed Defendant Conner that he would not be allowed to touch Plaintiff again. (Id.). At that point, Defendant Conner screamed, "It does not matter if I have to lose my job. You're going to spend the rest of your life in prison." (Id.).
Plaintiff alleges that on May 14, 2013, while serving lunch in cell block B-2, Defendant Mason looked at his cell phone and stated, "I had to turn my phone off he was calling so much. This ain't the first time this has happened. Last time I had to fight him. He's probably going to be at my house waiting on me.'" (Id.). Plaintiff alleges that on May 15, 2013, Defendant Briscoe told Plaintiff that what took place the day before was contrary to the law. (Id. at 9-10). While back in Cleveland County on a writ, Plaintiff requested to be able to press charges against the Defendants who were involved in the assault. Lieutenant Stearns told Plaintiff that, per direct orders from Defendant Briscoe, Plaintiff would not be able to press charges. (Id. at 10).
Based on the above factual allegations, Plaintiff purports to bring various legal claims against Defendants. As to Defendant McLaughlin, Plaintiff alleges that McLaughlin failed to protect Plaintiff from a substantial risk of harm from Conner, in violation of Plaintiff's Eighth Amendment rights. (Id. at 13). As to Defendant Briscoe, Plaintiff alleges that, as captain and head administrator over the Cleveland County Detention Center, Defendant Briscoe administered policy and was complacent with the work environment directly under his control; thus, allowing the beating of Plaintiff by Conner, in violation of Plaintiff's Eighth Amendment rights. (Id. at 14). As to Defendants Mason and Piercy, Plaintiff alleges that they used excessive force against Plaintiff when they restrained him on Conner's orders, and that they are both liable for failing to intervene when Defendant Conner began beating Plaintiff, in violation of Plaintiff's Eighth Amendment rights. (Id. at 15). As to Defendant Conner, Plaintiff alleges that Defendant Conner's use of force in an attempt to extract a DNA sample was an unreasonable search and seizure in violation of Plaintiff's Fourth Amendment rights. (Id. at 16). Plaintiff also alleges that Defendant Conner used excessive force, as Plaintiff "was fully restrained in handcuffs and shackles at the time he was beaten by Defendant Randy Conner." (Id.). Finally, as to Defendant Terrell, Plaintiff alleges that Defendant Terrell is liable for failing to investigate the incident and for failing to protect Plaintiff from a substantial risk of harm, in violation of Plaintiff's Eighth Amendment rights. (Id. at 17-18). Plaintiff states that even after he filed his grievance based on the alleged beating, he was sent back to the Cleveland County Detention Center twice on an application and writ of habeas corpus ad prosequendum, where he was again exposed to the same risk of harm. (Id. at 18). Plaintiff seeks declaratory relief as well as compensatory and punitive damages. (Id. at 19).
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).
A. Initial Review of ...