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Leak v. NC Department of Public Safety

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

February 6, 2019

BRADLEY LEAK, Plaintiff,
v.
NC DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.

          ORDER

          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. 2).

         I. BACKGROUND

         Pro se Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983 while incarcerated at the New Hanover Correctional Center addressing incidents that allegedly occurred at the Gaston C.C. and Foothills Correctional Institution. He names as Defendants: NCDPS, Gaston C.C., Foothills C.I., Assistant Superintendent of Gaston C.C. B. Burton, Transfer Coordinator of Gaston C.C. Craig Davis, and Program Director at Foothill C.I. Larry Williamson.

         Liberally construing the Complaint and accepting the allegations as true, Defendant Davis intentionally put Plaintiff on “backlog” to Foothill C.I. even though Plaintiff did not put in a transfer to Foothills. This was done in retaliation for Plaintiff filing a civil rights lawsuit in this Court. He appears to allege that he experienced the intentional infliction of emotional distress from being transferred among five prisons in Western North Carolina. (Doc. No. 1 at 5). Plaintiff alleges verbatim:

I went to Mr. Burton on 12-4-17 and he told me that I was backlog to Foothill C.C. I didn't know that until he told me. He admitted to me, and I told him that I didn't put in a transfer to Foothills so Mr. Burton call Mr. Davis to see why so as he had Mr. Davis on speaker, Mr. Davis to Assistant Superintendent Mr. Burton that we need him (me) away from here.

(Doc. No. 1 at 3, 19).

         The “Injury” section of the Complaint is blank. (Doc. No. 1 at 3). However, Plaintiff states that he saw doctors on August 25, 2017, September 27, 2017, February 2 and 21, 2018, in April 2018 and in July 2018 due to the “emotion and outrageous conduct” he has endured. (Doc. No. 1 at 19). Plaintiff appears to seek compensatory and punitive damages for his emotional distress due to “evil intent” by prison officials. (Doc. No. 1 at 19).

         II. STANDARD OF REVIEW

         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)).

         The Federal Rules of Civil Procedure require a short and plain statement of the case. Fed.R.Civ.P. 8(a)(2). Conclusory allegations, unsupported by specific allegations of material fact are not sufficient. Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990). A pleader must allege facts, directly or indirectly, that support each element of the claim. Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002).

         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.

         III. DISCUSSION

         (1) ...


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