Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gervin v. Hendley

United States District Court, W.D. North Carolina, Asheville Division

March 21, 2018

DASHAWN GERVIN, Plaintiff,
v.
CHRISTIAN HENDLEY, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on initial review of the Complaint, (Doc. No. 1), and on Plaintiff's Motions for Default Judgment, (Doc. Nos. 9, 10). Plaintiff has been granted leave to proceed in forma pauperis. (Doc. No. 6).

         I. BACKGROUND

         Pro se Plaintiff Dashawn Gervin, a North Carolina prisoner, filed this action pursuant to 42 U.S.C. § 1983. He is complaining about an incident that occurred at the Marion Correctional Institution on June 14, 2017. He names as Defendants NC DPS Director George T. Solomon, Marion C.I. Superintendent Hubert Corpening, and Marion C.I. officers Christian Hendley and B. Fisher.

         Liberally construing the Complaint and accepting the allegations as true, Plaintiff had just returned to Marion C.I. from a court visit on June 14, 2017, at approximately 4:45 PM when Defendants Hendley and Fischer arrived at the holding cell to escort him to his housing unit. Plaintiff complied with the order to turn around for handcuffing and immediately notified Defendant Hendley that the cuff was painfully tight, cutting into his wrist. Defendant Hendley told Plaintiff to turn around to have his other hand cuffed. Plaintiff refused until one of the officers in the holding cell, Officer Seamen, offered to loosen it. After both of Plaintiff's hands were cuffed, Defendants Hendley and Fischer entered the holding cell. Defendant Hendley loosened Plaintiff's right handcuff but Defendant Fischer tightened the left one to intentionally cause Plaintiff pain. As Plaintiff turned slightly to inform the officers that the cuff was too tight, Fischer tackled him to the ground and put him in a headlock, effectively cutting off his ability to breathe. Defendant Hendley then re-tightened the right handcuff until it was again painfully cutting into his writs. The officer in the control room called a “code 4” request for assistance. When the other officers arrived, Defendant Hendley painfully bent Plaintiff's wrists around the cuffs and applied the rest of the full restraints. At no time did Plaintiff refuse to comply with the officers or show any type of aggression. On several occasions following the incident, Defendants Hendley and Fischer have been permitted to have close contact with Plaintiff, and verbally harassed him despite an ongoing investigation.

         Plaintiff has suffered injuries to his mid- and lower-back as well as both hands and wrists, and swelling, pain, and numbness in his hands and wrists for which he has been seen by medical staff on several occasions.

         Plaintiff asks the Court to order him to be transferred out of Marion C.I., and injunction to keep Defendants away from him during this action, and compensatory and punitive damages.

         II. STANDARD OF REVIEW

         A “court shall dismiss [a prisoner's] case at any time if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). In its frivolity review, a 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).

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). 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 pro se complaint must still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id.

         III. DISCUSSION

         (1) Unnamed Individuals

         The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action shall include the names of all the parties.” Fed.R.Civ.P. 10(a); see Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants, ” Pliler v. Ford, 542 U.S. 225 (2004).

         The body of the Complaint refers to individuals who are not named as defendants in the caption as required by Rule 10(a). This failure renders Plaintiff's allegations against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.