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
pro se Plaintiff's Complaint, (Doc. No. 1).
Plaintiff has filed an application to proceed in forma
pauperis. (Doc. No. 5).
se Plaintiff filed a civil rights suit pursuant to 42
U.S.C. § 1983, addressing incidents that allegedly
occurred at the Marion Correctional Institution where he
still resides. He names as Defendants: “NCDOP,
” and Marion C.I. Sergeants Kizer and
construing the Complaint and accepting the allegations as
true, Plaintiff was handcuffed behind his back and escorted
to the shower between 6:00 and 7:00 PM. Plaintiff asked
“them” to remove the handcuffs so he could shower
but Kizer told Plaintiff to “figure it out.”
(Doc. No. 1 at 3). The handcuffs stayed on the entire time
Plaintiff was in the shower. Plaintiff appears to allege that
he was given a suicide vest to wear that was soiled with his
own urine and feces. While Plaintiff was handcuffed in
“a little more but less than full restraints, ”
Kizer threw him to the ground. (Doc. No. 1 at 4). Kinser, who
is over 200 pounds, placed his right knee on Plaintiff's
face, and put all his weight on it, which drilled
Plaintiff's face into the ground. Kinser then put his
fingers on Plaintiff's face and pressure points. Kinser
and Kizer refused to let a nurse take Plaintiff's vitals.
Kinser took a picture of Plaintiff from the other side of the
door while Plaintiff was dressed in the vest and his hair was
covering his forehead and ears. Plaintiff seeks $1, 000, 000
and “fire officer that wrong did in incident.”
(Doc. No. 1 at 4).
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.
Eleventh Amendment bars suits directly against a state or its
agencies, unless the state has waived its immunity or
Congress has exercised its power under § 5 of the
Fourteenth Amendment to override that immunity. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66
(1989). Congress has not imposed § 1983 liability upon
states, and the state of North Carolina has done nothing to
waive its immunity. Bright v. McClure, 865 F.2d 623,
626 (4th Cir. 1989) (citing McConnell v.
Adams, 829 F.2d 1319, 1328 (4th Cir. 1987)).
Further, “neither a state nor its officials acting in
their official capacities are ‘persons' under
§ 1983.” Will, 491 U.S. at 71.
names “NCDOP” as a Defendant. It appears that he
is attempting to name as a Defendant NCDPS, however, that
entity is not a “person” under § 1983 and is
protected by sovereign immunity. Therefore, the claims
against NCDOP will be dismissed with prejudice.
Cruel and Unusual Punishment
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 ...