United States District Court, W.D. North Carolina, Charlotte 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. 2).
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.
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).
“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).
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)).
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).
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