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
Plaintiff's Complaint, (Doc. No. 1). Plaintiff is
proceeding in forma pauperis. See (Doc. No.
se Plaintiff has filed a civil rights suit pursuant to
42 U.S.C. § 1983 with regards to an incident that
allegedly occurred at the Marion Correctional Institution
where he is still incarcerated. He names as Defendants
Sergeant Pruitt, Officer Kos, and Officer Bright.
the Complaint liberally and accepting the allegations as
true, on January 4, 2018, the following occurred:
I request (PC) because of statements that Officer Kos told me
he would get my (faggot a**) and then number of officer come
to take me to E-unit PC. I had my prayer rug and Qur'an
then was attacked by Officer K and spraed by Sgt Pruitt two
time, in cell and hallway.
(Doc. No. 1 at 2).
further claims that Officer Kos “acted out of
duty” by “jumping on” Plaintiff “when
[Plaintiff] was trying to get away from him on PC.”
(Doc. No. 1 at 2). Officer Bright was in the cell when
another officer in the cell jumped on Plaintiff in handcuffs
and did not help Plaintiff, then helped other officers take
Plaintiff's property. (Doc. No. 1 at 2). Plaintiff fears
for his safety and his left leg is in pain. (Doc. No. 1 at
3). He seeks to be transferred from Marion C.I., the return
of his property, and “fix's it to where
officer's can't be in cell here with inmates off
crames footage.” (Doc. No. 1 at 5).
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 relief. Id.
Not Named as Defendants
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, ...