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Williams v. Kizer

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

February 5, 2019

FNU KIZER, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS 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).

         I. BACKGROUND

         Pro 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, ”[1] and Marion C.I. Sergeants Kizer and Kinser.

         Liberally 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.[2] 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).


         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

         The 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.

         Plaintiff 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.

         (2) Cruel and Unusual Punishment

         The 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 ...

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