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 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.
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.
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.
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.
was tased and beaten on one occasion by Defendant Bresch who
then let Plaintiff return to general population.
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).
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
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.
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
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
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.
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
Individuals and Entities Not Named as
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.
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). ...