United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court on consideration of
Plaintiff's pro se complaint, filed pursuant to 42 U.S.C.
§ 1983. For the reasons that follow, Plaintiff's
complaint will be dismissed.
to Plaintiff's complaint, on or about July 31, 2015, he
was detained in the Buncombe County Jail. On March 20, 2016,
Plaintiff claims he was assaulted after an unnamed deputy
sheriff ordered a hit on his life. Plaintiff contends he
spoke with Defendants Gage and Coon while in the Buncombe
County Jail on September 11, 2015, and informed them that he
believed his life was in grave danger. Apparently,
Plaintiff's attorney, Defendant Smith, accompanied him to
a hearing in district court on an undisclosed date to address
the perceived threat. Following the hearing, Plaintiff
believed that he would be moved for his safety; however it
appears that he was not moved prior to the attack.
courts are required to review a complaint under Section 1983
when a prisoner “seeks redress from a governmental
entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The statute further
provides that “the court shall identify cognizable
claims or dismiss the complaint, or any portion of the
complaint, if the complaint-(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.” § 1915A(b)(1) & (2).
conducting this review, the 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). While a pro se
complaint must be construed liberally, Haines v.
Kerner, 404 U.S. 519, 520 (1972), this requirement of
liberal construction will not permit a district court to
ignore a clear failure to allege facts in the complaint which
set forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990). Further, the Court is “not bound
to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265,
sure, the Eighth Amendment imposes a duty on prison officials
“to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S.
825, 833 (1994) (quoting Cortes-Quinones v.
Jiminez-Nettleship, 842 F.2d 556, 558 (1st Cir.),
cert. denied, 488 U.S.C. 823 (1988)). To establish a
claim under § 1983 for failure to protect from violence,
an inmate must show; (1) “serious or significant
physical or emotional injury resulting from the challenged
conditions, ” De'Lonta v. Angelone, 330
F.3d 630, 634 (4th Cir. 2003) (quoting Strickler v.
Waters, 989 F.2d 1375, 1381 (4th Cir. 1993)); and (2)
that the prison official has a “sufficiently culpable
state of mind.” Farmer, 511 U.S. at 834.
Simply put, in order to succeed on a claim of deliberate
indifference to Plaintiff's safety, Plaintiff must show
that the Defendants knew of and disregarded an excessive risk
to Plaintiff's health or safety, were aware of facts from
which the inference could be drawn that a substantial risk of
serious harm existed, and drew that inference. Rich v.
Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (citing
Farmer, 511 U.S. 825 at 837).
complaint fails to state a claim for relief. First, assuming
Plaintiff did inform Defendants Gage and Coon that he
believed he was in danger that was seven months before he was
apparently assaulted. Second, Plaintiff does not identify the
deputy sheriff that allegedly ordered a hit on him by name.
Third, Defendants Gage and Coon have no responsibility
regarding Plaintiff's housing within the Buncombe County
Jail as that is the exclusive province of Van Duncan, who is
the present sheriff of Buncombe County. Finally, Plaintiff
fails to fairly allege any facts against Defendants Smith or
Moore that could support a § 1983 claim. Moreover,
private attorneys are not state actors and are therefore not
amendable to suit in a § 1983 proceeding, see Polk
Cnty. v. Dodson, 454 U.S. 312 (1981); and district
attorneys are immune from suit in a § 1983 proceeding.
Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
on the foregoing, the Court finds that Plaintiff's
complaint should be dismissed for failure to state a claim.
28 U.S.C. § 1915A(b)(1).
THEREFORE, ORDERED that Plaintiff's application to
proceed in forma pauperis is GRANTED. (Doc. No. 2).
FURTHER ORDERED that Plaintiff's complaint is DISMISSED
WITHOUT PREJUDICE. (Doc. No. 1).
Clerk of Court is respectfully directed to ...