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Battle v. North Carolina Department of Public Safety

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

June 14, 2018



          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 9).

         I. BACKGROUND

         Pro se incarcerated Plaintiff has filed a civil rights suit pursuant to 42 U.S.C. § 1983 with regards to incidents that allegedly occurred at the Avery-Mitchell Correctional Institution.[1] He names the following as Defendants in their official and individual capacities: the North Carolina Department of Public Safety - Prisons (“NC DPS”); and the following employees at the Avery-Mitchell C.I.: Assistant Superintendent of Custody Gegory Taylor, Assistant Superintendent of Programs Jason Penland, Assistant Unit Manager Mark Geouge, Physician Assistant Keith D'Amico, Officers Bailey, Clark, Hensley, and Porshia, Captains Pittman and Watson, Sergeant Tate, and Lieutenant Quintero.

         Construing the Compliant liberally and accepting the allegations as true, Plaintiff suffers from a severe latex allergy for which he had a Medical “490” card at the time of the incidents at issue. Dr. Umesie and P.A. Hendricks at Harnett Correctional Institution had conducted a latex test on Plaintiff that came back negative but chose to err on the side of caution, prescribed Triamcinolone Acet 0.1%, and recommended that Plaintiff see a dermatologist due to his severe skin reactions when he contacts latex. Plaintiff was taken to Boone Dermatology on November 24, 2015, and the consulting dermatologist concluded that Plaintiff is likely allergic to latex, recommended that he not to come in direct contact with it, and recommended the same medication that Umesie and Hendricks had prescribed.

         On October 25, 2015, at Avery-Mitchell C.I., Plaintiff went to get his special diet meal at lunchtime and noticed that every inmate on the serving line was wearing latex gloves. Plaintiff explained to the officer over the serving line that he is allergic to latex and displayed his ID Card bearing a warning placed by Medical. Officer Porshia came over and began harassing Plaintiff, stating “look guy, are you going to eat or what?” (Doc. No. 1 at 10). Plaintiff said “yes, ” but that he could not eat food that had been handled with latex. Plaintiff showed his card to Officers Hensley and Clark as Plaintiff began showing the first stages of his allergic reaction to latex on his arms and neck. He also told them that he had a “Medical 490 … that states [he] has a severe latex allergy that will ca[u]se severe skin reactions.” (Doc. No. 1 at 10). Plaintiff told Officer Hensley “this stuff will kill me!” (Doc. No. 1 at 10). Officer Clark made a “sadistic and disparaging” comment that “when you die, fill out a grievance.” (Doc. No. 1 at 10). Plaintiff asked to see a Captain or the Officer in Charge (“OIC”), and Officer Clark told Plaintiff to go tell the sergeant on duty that he wanted to see the captain. Plaintiff complied.

         At dinnertime that same day, Plaintiff approached Captain Pittman about the lunchtime incident with Officers Clark, Porshia, and Hensley, including Clark's “sadistic” comment. (Doc. No. 1 at 10). Pittman said he did not believe that Clark made that comment. When Plaintiff said there were witnesses, Pittman said that an inmate's word means “nothing” to him and told Plaintiff to go back to his unit. (Doc. No. 1 at 11). Pittman did not investigate these issues.

         After this incident, Medical consistently began giving Plaintiff appointments with P.A. D'Amico, who attempted to deny Plaintiff's latex allergy. D'Amico chose to seek his own findings by taping latex to Plaintiff's arm and ordering Plaintiff to walk around with it for hours. It caused Plaintiff great pain and made him sick, requiring him to file a medical emergency. (Doc. No. at 12). On November 18, 2015, D'Amico discontinued the Triamcinolone Acet 0.1% that had been prescribed by Dr. Umesie and P.A. Henricks, and that was also recommended by the dermatologist.

         Assistant Unit Manger Geouge processed Plaintiff's grievances and told him that Defendant Penland said witness statements cannot be submitted with grievances. (Doc. No. 1 at 12). Plaintiff responded that it violated NC DPS policy regarding administrative remedies to reject witness statements and Geouge said he would have to look into the matter. As investigator of the Step-1 grievance, Geouge had full knowledge of the witness statements and identities of the witnesses willing to testify for Plaintiff. However, he disregarded this and failed to interview the witnesses or obtain any statements from them. If he would have done so, he would have found that D'Amico discontinued his medication needed for allergy on November 18, 2015. Geouge failed to adequately and truthfully investigate Plaitniff's allegations against staff.

         Assistant Superintendent of Programs, Jason Penland, investigated Step-2 of the grievances. He refused to adequately and truthfully investigate Plaintiff's complaints and investigated them with bias. He already saw and read the grievance before it was assigned to him and formed and opinion about it. This “clearly shows the fallacious and deceptive tactics he and Mr. Geouge has taken, in their efforts to hide the truth and protect their fellow officers and staff.” (Doc. No. 1 at 14).

         Plaintiff spoke with Captain Reel about the incident and the officers' conduct, and she told him to file a grievance. Plaintiff also spoke to Captain Watson of the internal affairs division. Still nothing happened. Plaintiff sent Captain Watson copies of the witness statements because Captain Pittman's officers (Clark, Porshia, and Hensley) submitted false statements in response to the grievance. This shows the incident is being swept under the rug and officers are being protected. Plaintiff spoke to Taylor about the incident but he refused to step in and do anything to stop it or correct the actions of officers and staff. Taylor told Plaintiff to “stay out of the situation” but would not tell him “by who or why.” (Doc. No. 1 at 15).

         Defendants Porshia and Hensley retaliated against Plaintiff on November 22, 20155, by searching him and going through his belongings while wearing latex gloves, while they both had full knowledge of Plaintiff's latex allergy. Plaintiff told both officers again that he is allergic to latex, showed them the “490” card, and offered them non-latex gloves but they refused to wear them.

         The retaliation continued on January 17, 2016, when Defendants Geouge, Taylor, and Bailey searched Plaintiff's property. A lot of property and food were taken or destroyed. The officers did not fill out a property form noting the disposition of Plaintiff's property and failed to conduct a proper inventory.

         On May 13, 2016, Plaintiff returned to Avery-Mitchell C.I. where he faced more retaliation when he was denied adequate bedding.[2] Plaintiff's allergy makes him unable to sleep on the plastic mattresses that the facility changed over to, and Medical said that Plaintiff's mattress has to be cloth. The facility and supervisors are aware of the latex allergy and bedding situation because Plaintiff was housed at Avery-Mitchell C.I. before. Sgt. Tate, the Unit Supervisor the night of Plaintiff's return, was given Plaintiff's Medical “490” indicating the mattress restriction, but he failed to provide Plaintiff with the appropriate mattress. At around 3:00 am, Tate told Plaintiff there was no mattress for him to sleep on. Plaintiff asked to speak to the OIC, Lt. Quintero, and Tate said “he is aware of the situation, ” however, Quintero failed to help resolve the problem. (Doc. No. 1 at 16). Plaintiff was given some blankets so he could lie on the bed's bare wire fencing and springs, or on the floor. Plaintiff chose to lie on the bare metal bed which caused “much pain” to his back and arms; he was already on medication for his back due to surgery. This affected him mentally and humiliated him in front of other inmates. It took him several days to feel relief from the back pain.

         Avery-Mitchell C.I. and its staff have a history of discrimination against African American inmates with brutality and cruel and unusual punishment. Inmates of color are harassed with hostile abusive verbal or physical conduct more often than white inmates. Officers' behavior and their aggression towards Black inmates should be viewed as hate crimes, criminal charges should be filed. There have been numerous complaints filed with NC DPS and Department of Justice civil rights division but the tyrannical acts of officers and staff at this facility continue.

         The Defendants' actions when Plaintiff was searched and touched with latex gloves caused him to have skin reactions. The latex that D'Amico taped to his arm caused scarring and a more severe skin reaction. Plaintiff experienced pain in arms and back from sleeping on a bed without a mattress. He also sustained mental and emotional injury from cruel and unusual punishment and pain and suffering.

         Plaintiff seeks preliminary and permanent injunction to make NC DPS and Defendants stop their pattern of brutality and harassment and mandate the use of latex gloves; compensatory damages; punitive damages; any additional relief the court deems just, proper, and equitable. He does not seek a jury trial.


         A preliminary injunction is an extraordinary remedy that is never awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). To obtain a preliminary injunction, a plaintiff must establish (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20; Di Biase v. SPX Corp., 872 F.3d 224, 229 (4th Cir. 2017).

         A prisoner's transfer moots a § 1983 request for declaratory and injunctive relief when the conditions of which the prisoner claims are unlikely to recur. See Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986). Plaintiff alleges that the incidents at issue occurred at the Avery-Mitchell C.I., his address of record is at the Tabor C.I., and the NC DPS website indicates that he is presently housed at the Alexander C.I. Because he no longer resides where the alleged incidents occurred and he has not alleged that these conditions are likely to recur, his request for preliminary injunctive relief will be denied as moot.


         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) Parties

         a) ...

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