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Hill v. Palmer

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

February 26, 2019

DERRICK PALMER, 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 is proceeding in forma pauperis. (Doc. No. 8). Also pending are two Letters, (Doc. Nos. 1-16, 3), filed by Plaintiff that are construed as Motions for the Appointment of Counsel and a third Letter, (Doc. No. 9), that is construed as a Motion for Default Judgment.

         I. BACKGROUND

         Pro se Plaintiff, who is a pretrial detainee, filed a civil rights suit pursuant to 42 U.S.C. § 1983, addressing incidents that allegedly occurred at the Cherokee County Detention Center (“CCDC”). He names as Defendants: Cherokee County Sheriff Derrick Palmer; CCDC Captain Mark Patterson; CCDC Lieutenant Jeremy Bresch; and Cherokee County Manager Randy Wiggins.

         Construing the Complaint liberally and accepting it as true, Plaintiff alleges that Palmer is legally responsible for the overall operation of the sheriff's department and CCDC. Patterson is legally responsible for CCDC and the welfare of all inmates at the facility. Bresch is legally responsible for the inmates at CCDC. Wiggins is legally responsible for managing County departments and was aware of Plaintiff's confinement at CCDC as well as Macon County Detention Center (“MCDC”) and had a duty to take action in response to Plaintiff's complaints.

         Plaintiff has been a pretrial detainee awaiting trial since June 29, 2014. In March 2016, the CCDC Defendants began keeping Plaintiff's mail. Plaintiff started writing grievances and Defendants retaliated by keeping Plaintiff from going to church and punished him by placing him in max segregation where inmates are not allowed to attend church.

         Plaintiff was tased and beaten on one occasion by Defendant Bresch who then let Plaintiff return to general population.

         On July 24, 2017, Bresch renewed Plaintiff's magazines and newspapers out of Plaintiff's inmate account then refused to give them to Plaintiff and also refused to give Plaintiff a Discipleship Course that Plaintiff is taking by mail. Bresch knows that Plaintiff is Catholic and made a comment that “it's a wonder you're not a cho-mo (child molester).” (Doc. No. 1 at 15).

         Plaintiff started writing grievances about not receiving his mail but none were returned so he could appeal. He started writing Defendant Patterson grievances and received no reply. After ten months of no mail and attempting to use the grievance procedure, Plaintiff wrote Defendant Palmer again, this time through Plaintiff's attorney, which Palmer received. Defendant Patterson was very angry that Defendant Palmer had received the letter and punished Plaintiff by transferring him to MCDC and placing him in max segregation without due process in retaliation for writing grievances and threatening to sue. Plaintiff tried to file an order to show cause for preliminary injunction in the Asheville Clerk's Office on March 25 and 28, 2018, and contacted Defendant Wiggins, Defendant Palmer, the County Attorney, the Human Rights Defense Center, SBI, ACLU, U.S. Department of Justice, State Auditor, County Auditor, County Finance Director Candy Anderson, Congressman Mark Meadows, Governor Roy Cooper, the Better Business Bureau, the Cherokee Scout, Andrews Journal, North Carolina Department of Public Safety Division of Prisons, North Carolina Attorney General Josh Stein, and the U.S. District Court in Charlotte. Plaintiff has been assaulted, tased, placed in administrative segregation, denied proper food and hygiene, and transferred to max segregation in another jail two counties away which is creating a hardship for him and his family. Medical has been told to deny him pain medication for a staph/MRSA infection “per Captain and Lieutenant.” (Doc. No. 1 at 17). He has been denied church and Rock of Ages Discipleship Courses for over three years and now all his mail has been stopped/censored.

         Plaintiff believes that his outgoing mail was being censored at CCDC. At MCDC, Plaintiff's mail was going out so he was able to write Defendants Wiggins and Palmer to let them know what was happening. County Attorney Darryl Brown sent Plaintiff a letter instructing Defendants Palmer, Patterson, and Bresch, to give him his mail which they said was “boxed up.” Plaintiff was sent 31 magazines, some of which were not his, out of at least 124 that were missing. “Defendants claim mail policy banned them. It didn't.” (Doc. No. 1 at 15). Other inmates get magazines and Plaintiff is still being punished.

         While Plaintiff was at MCDC, Defendant Palmer sent Chief Detective Joe Wood to see what Plaintiff wanted because Defendant Wiggins, Brown, and Anderson were “getting involved with the SBI.” (Doc. No. 1 at 19). Plaintiff told Wood that he wanted to speak to Defendant Palmer about his rights being violated. Wood said he was opening an internal investigation and “SBI was already there.” (Doc. No. 1 at 19). Defendant Palmer came to visit Plaintiff a week later in August 2018. Plaintiff told him “all that was being done” to him by Defendants Patterson and Bresch with regards to past and pending lawsuits, that CCDC would not give him his magazines and religious material. (Doc. No. 1 at 20). Plaintiff was brought back to MCDC on September 4, 2018 due to overcrowding. Plaintiff still cannot get his mail log.

         On September 26, 2018, Plaintiff mailed more letters through his attorney in an attempt to get help. He has written several letters to the Cherokee Scout paper but on October 3, 2018, he called Editor Mathew Osborne who said he had not received them and wanted to know the status of the lawsuits pending against CCDC. Plaintiff is still on lockdown for no given reason.

         Plaintiff claims that he has no plain, adequate, or complete remedy at law and that he will continue to be irreparably injured unless the Court grants declaratory and injunctive relief. He seeks declaratory judgment, a preliminary and permanent injunction ordering Defendants to follow the due process of the grievance system, stop censoring his mail and religious material and stop cruel and unusual punishment, transfers and segregation, compensatory damages, punitive damages, a jury trial, costs, and any additional relief the Court deems just, proper and equitable.


         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) Individuals and Entities Not Named as Defendants

         The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action shall include the names of all the parties.” Fed.R.Civ.P. 10(a); see Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants, ” Pliler v. Ford, 542 U.S. 225 (2004).

         The body of the Amended Complaint contains allegations against individuals who are not named as defendants in the caption as required by Rule 10(a). This failure renders Plaintiff's allegations against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served). ...

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