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 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. 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.
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.
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.
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.
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.
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.
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).
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
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.
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.
13, 2016, Plaintiff returned to Avery-Mitchell C.I. where he
faced more retaliation when he was denied adequate
bedding. 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.
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.
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.
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.
PRELIMINARY INJUNCTION/TEMPORARY RESTRAINING ORDER
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
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.
INITIAL REVIEW STANDARD
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.