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Gervin v. Hendley

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

April 4, 2018

CHRISTIAN HENDLEY, et al., Defendants.


          Frank D. Whitney Chief United States District Judge.

         THIS 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).

         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. 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.

         In its 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).

         Plaintiff 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.”).

         Liberally 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.

         Initially, 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.

         Plaintiff 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.


         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.


         (1) Unnam ...

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