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Boger v. Cooper

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

April 6, 2018

DERRICK D. BOGER, Plaintiff,
ROY COOPER, et al., Defendants.



         THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1), and his “Civil Complaint, ” (Doc. No. 7). He is proceeding in forma pauperis. See (Doc. No. 6).

         I. BACKGROUND

         Pro se Plaintiff Derrick D. Boger, who is an inmate at the Craggy Correctional Center, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. He names as Defendants: Governor Roy Cooper, Director of Prisons Kenneth E. Lassiter, Assistant Superintendent of Craggy C.C. Marty Galloway, and Security Risk Group (“SRG”) Sgt. Parton.

         Construing the Complaint liberally and accepting the allegations as true, Plaintiff appears to argue that he was placed in an all-gang cell block on January 4, 2017, due to a tattoo. This placed him in harm's way and was “left to suffer cruel and unusual punishment, mental trauma, libel, [and] humilitation.” (Doc. No. 1 at 3). This could have been stopped by “head officials” who allowed Sgt. Parton to abuse his authority in violation of Constitutional Amendments 4, 5, 8, and 14. (Doc. No. 1 at 3). Plaintiff sent a grievance to Raleigh and officials told him to talk to the Captain. Sgt. Parton and Lt. Warren said they would move Plaintiff but this was a lie and breach of their duties.

         Plaintiff seeks $50 million in compensatory damages as well as Defendants' reprimand and demotion.


         Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 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 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)).

         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)Conditions of Confinement

         The Eighth Amendment prohibits punishments that “involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “It not only outlaws excessive sentences but also protects inmates from inhumane treatment and conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996). The Constitution “does not mandate comfortable prisons, … but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). Thus, prison official must provide sentenced prisoners with adequate food, clothing, shelter, and medical care, and “take reasonable measures to guarantee the[ir] safety….” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see Farmer, 511 U.S. at 832-34. To establish a violation of the Eighth Amendment in the context of a challenge to conditions of confinement, an inmate must allege (1) a “sufficiently serious” deprivation under an objective standard and (2) that prison officials acted with “deliberate indifference” to the inmate's health and safety under a subjective standard. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991). A sufficiently serious deprivation occurs when “a prison official's act or omission ... result[s] in the denial of the minimal civilized measure of life's necessities.” Id. at 298 (citing Rhodes, 452 U.S. at 347). An inmate has no constitutional interest in any particular prison classification or housing assignment. See generally Sandin v. Conner, 515 U.S. 472 (1995) (a change in the conditions of a prisoner's confinement that does not exceed the scope of the original sentence only gives rise to a federally protected liberty interest if it imposes atypical and significant hardship in relation to the ordinary incidents of prison life).

         Plaintiff fails to state a claim as to Defendants Cooper, Lassiter, and Galloway, because he sets forth no factual allegations against them whatsoever. See Fed.R.Civ.P. 8(a)(2) (requiring a short and plain statement of the claim); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly, that support each element of the claim); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact are not sufficient). Plaintiff's claims against these Defendants are therefore insufficient to proceed.

         Plaintiff alleges that Sgt. Parton housed him in a cell block with gang members. This fails to state a constitutional violation because there is no interest in any particular classification or placement in prison, and Plaintiff states no sufficiently serious hardship or ...

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