United States District Court, M.D. North Carolina
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Webster United States Magistrate Judge.
Ronald McClary, submitted a pro se complaint under 42 U.S.C.
§ 1983 and requests permission to proceed in forma
pauperis pursuant to 28 U.S.C. § l915(a). Plaintiff
names five correctional officers at Scotland Correctional
Institution as Defendants in the case. He alleges that, on
11-21-18, Defendant Hafaze slammed Plaintiff's arm in a
trap door, causing scrapes and bruises. Plaintiff claims that
Defendant Martinez failed to stop Hafeze from acting in this
manner and that Defendant Vanardo did not allow Plaintiff to
receive medical treatment. Finally, he alleges that
Defendants Barber and Maples tore up administrative
grievances filed by Plaintiff concerning the incident, rather
than process them as they should have.
Plaintiff is “a prisoner seek[ing] redress from a
governmental entity or officer or employee of a governmental
entity, ” this Court has an obligation to
“review” this Complaint. 28 U.S.C. §
1915A(a). “On review, the court shall . . . dismiss the
complaint, or any portion of the complaint, if [it] - (1) is
frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
here, a plaintiff “fails to state a claim upon which
relief may be granted, ” 28 U.S.C. § 1915A(b)(1),
when the complaint does not “contain sufficient
factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(emphasis added) (internal citations omitted) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” Id. (quoting
Twombly, 550 U.S. at 557). This standard
“demands more than an unadorned,
Id. In other words, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
reasons that follow, the claims against Defendants Hafeze and
Vanardo will be allowed to proceed, but the claims against
Defendants Martinez, Maples, and Barber should be dismissed
pursuant to 28 U.S.C. § 1915A(b) for failure to state a
claim upon which relief may be granted.
first to the claims against Defendants Hafeze and Vanardo,
Plaintiff alleges that Hafeze used unnecessary and excessive
force against him, thereby injuring his arm. He also alleges
that Defendant Vanardo would not allow Plaintiff to receive
medical attention. These allegations, although somewhat bare,
are sufficient to state claims against these two Defendants.
Therefore, the claims against them will be allowed to
claims against the remaining defendants are a different
matter. As to Defendant Martinez, Plaintiff alleges that he
failed to stop Hafeze from shutting Plaintiff's arm in
the trap door. However, he sets out no facts to allow a
conclusion that Martinez had the power, opportunity, or
authority to stop Hafeze. It may be that such facts exist.
However, Plaintiff does not set them out in his current
Complaint and his claim against Martinez should be dismissed.
Defendants Maples and Barber, Plaintiff alleges that they
refused to process administrative grievances he filed. The
alleged obstruction of Plaintiff's grievances does not
state any claim for relief under § 1983 because there is
no substantive due process right to a prison grievance
procedure. Grieveson v. Anderson, 538 F.3d 763, 772
n.3 (7th Cir. 2008) (no substantive right to a grievance
procedure); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994) (no right to any grievance procedure or to access any
procedure voluntarily created by the State). Therefore,
Plaintiff fails to state a claim against Defendants Maples
and Barber and the claims against them should be dismissed.
Only the claims against Defendants Hafeze and Vanardo should
be allowed to proceed.
now to Plaintiff's request to proceed in forma
pauperis, he had $8.00 deposited into his prison trust
account in the past six months and § 1915(b)(1) requires
that he make an initial payment of $0.27. Failure to comply
with this Order will lead to dismissal of the complaint.
THEREFORE ORDERED that Plaintiff in the above-named action
be, and is hereby, permitted to file and prosecute said
action in this Court without prepayment of fees or giving
security therefor, subject to the conditions set forth below.
FURTHER ORDERED that, as a condition of Plaintiff's
proceeding in forma pauperis, Plaintiff shall,
within sixty (60) days after the date of this Order, submit
to the Clerk an initial payment of $ 0.27, which represents
20% of the greater of the average monthly deposits into or
the balance in Plaintiff's account for the 6-month period
immediately preceding filing of this complaint.
TO COMPLY WITH THIS ORDER IN A TIMELY MANNER WILL RESULT IN
DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE TO PLAINTIFF.
FURTHER ORDERED that, as a condition of Plaintiff's
proceeding in forma pauperis, Plaintiff's trust
officer shall be directed to pay to the Clerk of this Court
20% of all deposits to his account starting with the month of
March of 2019, and thereafter each time that the amount in
the account exceeds $10.00 until the $350.00 filing fee has
FURTHER ORDERED that all payments deducted in relation to
this case shall be designated as made inpayment of the filing
fee for Civil Action No. 1:19CV1, and shall be paid to the
Clerk, U.S. District Court for the Middle District of North
Carolina. In the event Plaintiff is transferred to another
institution, the balance due shall be collected and paid to
the Clerk by the ...