United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of the
Amended Complaint, (Doc. No. 12). Plaintiff has been granted
leave to proceed in forma pauperis. (Doc. No. 6).
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. Plaintiff named as
Defendants in the original Complaint NC DPS Director George
T. Solomon, and Marion C.I. Superintendent Hubert Corpening,
and Marion C.I. officers Christian Hendley and B. Fisher.
Order on initial review of the original Complaint, the Court
found that Plaintiff failed to state a claim against
Defendants Solomon and Corpening, and stated a facially
sufficient Eighth Amendment claim as to Defendants Hendley
and Fischer. The Court also noted that Plaintiff's
references to individuals that were not named in the case
caption were insufficient to state a claim against them. He
was granted leave to file an Amended Complaint to attempt to
cure the deficiencies. See (Doc. No. 11).
has now filed an Amended Complaint. He does not include any
allegations against Defendants Solomon and Corpening. He also
fails to include in the caption as Defendants any of the
individuals referenced in the body of the Amended Complaint.
Thus any claim against these individuals have been waived.
See (Id. at 11) (informing Plaintiff that
“[t]he Amended Complaint will supersede the original
Complaint so that any claims or parties omitted from the
Amended Complaint will be waived.”).
construing the Amended Complaint and accepting the
allegations as true, Defendants Hendley and Fischer violated
the Eighth Amendment on June 14, 2017, in a Marion C.I.
holding cell. Defendant Hendley put a handcuff on Plaintiff
that was painfully tight, cutting into Plaintiff's
wrists. Officer Fischer slammed Plaintiff into a wooden bench
then onto the floor as he painfully tightened the other
handcuff. Officers Seamen and Connter were present and
watching while this happened.
both of Plaintiff's hands were swollen, and he suffers
chronic back pain and nerve damage in his left hand. He is
still receiving medical treatment from medical staff at
Marion C.I. including multiple medications.
asks the Court to order him to be transferred out of Marion
C.I., and injunction to prevent retaliation for this legal
action, and compensatory and punitive damages.
STANDARD OF REVIEW
“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).
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