United States District Court, W.D. North Carolina, Asheville Division
DERRICK D. BOGER, Plaintiff,
ROY COOPER, et al., Defendants.
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
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).
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.
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.
seeks $50 million in compensatory damages as well as
Defendants' reprimand and demotion.
STANDARD OF REVIEW
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)).
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
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).
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.
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 ...