United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD, Magistrate Judge.
This case comes before the undersigned Magistrate Judge for a recommended ruling on Defendant Bunn's Motion to Dismiss for Failure to State a Claim (Docket Entry 11), as well as for review of service of process on Defendants Turner, Killough, and Clevenger. For the reasons that follow, the Court should grant the instant Motion and the undersigned Magistrate Judge will direct Attorney Donna Tanner to assist in effecting service on the remaining Defendants.
Plaintiff, a North Carolina state prisoner, initiated this action by filing a pro se form Complaint under 42 U.S.C. § 1983 (Docket Entry 2), alleging deprivation of his rights in connection with injuries sustained when an inmate in the adjacent cell started a fire (id. at 3). The Complaint names Sgt. Turner, Corporal Killough, Officer Bunn, and Officer Clevenger as Defendants. ( Id. at 2.) It states that Defendants failed to promptly remove Plaintiff from his cell, and that his resulting exposure to smoke led to his hospitalization and ongoing health issues. ( Id. at 3.) In that regard, Plaintiff's Complaint asserts that Defendants' alleged inaction amounted to an infliction of cruel and unusual punishment under the Eighth Amendment. (See id.) In support of the foregoing, the Complaint offers the following factual material:
1) "[o]n January 14, 2012[, ] at approximately 7 p.m.[, ] while [Plaintiff] rest[ed] inside [his] cell on the segregation unit of Orange Correctional Center, [Plaintiff] was suddenly aw[o]ken from coughing and choking from thick black smoke filling the air [and] also an inmate next door to [Plaintiff] yelling and kicking on his door" (id.);
2) "[t]his particular inmate had allegedly set a fire in his cell which resulted in [Plaintiff's] cell and basically the entire block being consumed in black smoke" (id.);
3) "being unable to breathe and barely able to see[, ] [Plaintiff] immediately got off [his] bunk[, ] went to [his] cell door[, ] and got the officer[']s attention that was next door dealing with the inmate who set the fire" (id.);
4) "[Plaintiff] requested [that] [Defendants Killough, Bunn, and Clevenger] please remove [Plaintiff] from [his] cell due to smoke inh[a]lation[, ] plus [Plaintiff] was f[ee]ling very dizzy headed" (id.);
5) "[Defendant] Killough then told [Plaintiff] to go sit down [and] that [Plaintiff] would be all right" (id.);
6) "[Defendants Killough, Bunn, and Clevenger] then walked away from [Plaintiff's] cell door [and] totally ignored [Plaintiff's] request to move [him] to safety so [he] could breathe" (id.);
7) "[s]hortly thereafter [Defendant] Turner entered the block [to] assist the other officers with the situation after [Defendants] Bun[n] and  Clevenger radioed in and announced a code blue on the segregation unit" (id.);
8) "[Plaintiff] then got [Defendant] Turner's attention and he came to [Plaintiff's] cell door and [Plaintiff] requested to him to please help [Plaintiff] and remove [him] from [his] cell... because [he] felt [him]self about to black out" (id.);
9) "[Plaintiff] also declared to [Defendant Turner] a medical emergency and then he told [Plaintiff] to shut up and go sit or lay down on [the] bunk because he wasn't removing [Plaintiff] from his cell... [and] he then walked away" (id.);
10) "[the] [l]ast thing [Plaintiff] could remember was trying to walk back to [his] bunk [and] [Plaintiff] then lost consciousness falling hitting [his] back on the steel toilet and sink ...