United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
a state inmate proceeding pro se, filed this action under 42
U.S.C. § 1983 and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et seq. He
also seeks relief under Bumgarner v. North Carolina
Department of Correction, No. 5:10-CT-3166-BO (E.D. N.C.
Aug. 15, 2013.). The matter is before the court for frivolity
review pursuant to 28 U.S.C. § 1915. Also before the
court is plaintiff's motion for preliminary injunction
is incarcerated at Tabor Correctional Institution. In
September, 2015, defendant Nurse Palmer allegedly refused to
treat internal bleeding in plaintiff's leg. Following
several weeks of non-treatment, x-rays revealed plaintiff
shattered his tibia. Plaintiff eventually underwent surgery
on his leg. The delay in plaintiff's treatment was due,
in part, to defendant Jamese Smith's retaliation against
plaintiff. Smith retaliated against plaintiff “because
of [plaintiff's] First Amendment activities.”
(Compl. (DE 1) 6-7). In addition, prison officials fired
plaintiff from his prison job after he suffered this injury,
and transferred him to an unsanitary cell where he could not
reach the bed. Plaintiff also asserts defendants denied him
access to “facilities, programs, and services” as
a result of his injury. (Id. at 7). This denial
included lack of access to the shower. Plaintiff filed
grievances related to these perceived ADA violations. Upon
receipt of this grievance, non-defendant Sgt. Jolly verbally
abused plaintiff. In December, 2017, prison officials refused
to treat irritation in plaintiff's throat. Plaintiff
contends this condition caused violent coughing fits and made
breathing difficult. Beginning in March 2018, plaintiff
alleges that further ADA violations denied him access to the
dining hall. Finally, plaintiff mentions in passing various
disciplinary convictions he received. However, he does not
name the disciplinary hearing officers (“DHO”)
who imposed these sentences as defendants, nor do his claims
for relief indicate that he seeks to pursue any claim related
to these disciplinary proceedings.
U.S.C. § 1915 provides that courts shall review
complaints filed by prisoners and dismiss such complaints if
they are “frivolous” or fail to state a claim on
which relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(I)-(ii). A complaint may be found frivolous
because of either legal or factual deficiencies. First, a
complaint is frivolous where “it lacks an arguable
basis . . . in law.” Neitzke v. Williams, 490
U.S. 319, 325 (1989). Legally frivolous claims are based on
an “indisputably meritless legal theory” and
include “claims of infringement of a legal interest
which clearly does not exist.” Adams v. Rice,
40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490
U.S. at 327). Under this standard, complaints may be
dismissed for failure to state a claim cognizable in law,
although frivolity is a more lenient standard than that for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Neitzke, 490 U.S. at 328.
Second, a complaint may be frivolous where it “lacks an
arguable basis . . . in fact.” Id. at 325.
Section 1915 permits federal courts “to pierce the veil
of the complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless.”
See Denton v. Hernandez, 504 U.S. 25, 32 (1992)
(citing Neitzke, 490 U.S. at 327).
state a claim on which relief may be granted, the complaint
must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating
whether a claim is stated, “[the] court accepts all
well-pled facts as true and construes these facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted). In other words, the
plausibility standard requires a plaintiff to articulate
facts that, when accepted as true, plausibly demonstrate that
plaintiff is entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
alleges various Eighth Amendment violations based on the
delay in his treatment and his exposure to inhumane
conditions of confinement. The Eighth Amendment's
prohibition on cruel and unusual punishment requires prison
officials to provide humane conditions of confinement.
Makdessi v. Fields, 789 F.3d 126, 132 (4th Cir.
2015) (citing Farmer v. Brennan, 511 U.S. 825,
832-33 (1994)). A plaintiff alleging deliberate indifference
to serious medical needs must establish that a prison
official knew of and disregarded an “objectively
serious condition, medical need, or risk of harm.”
Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995);
see also Farmer, 511 U.S. at 837. To succeed on an
Eighth Amendment conditions of confinement claim, an inmate
must “show both (1) a serious deprivation of a basic
human need; and (2) deliberate indifference to prison
conditions on the part of prison officials.”
Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir.
1993) (quotation omitted).
they are not clearly frivolous, plaintiff may proceed with
his Eighth Amendment claims.
contends defendant Smith contributed to the delay in
plaintiff's medical treatment as retaliation for
plaintiff exercising his First Amendment Rights. To state a
retaliation claim, plaintiff must allege: 1) that he engaged
in constitutionally protected First Amendment activity, such
as filing a lawsuit; 2) the defendant took an action that
adversely affected that activity; and 3) there was a causal
relationship between the plaintiff's protected activity
and the defendant's conduct. Raub v. Campbell,
785 F.3d 876, 885 (4th Cir. 2015); see also Booker v.
S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir.
2017) (holding First Amendment right to petition the
government violated when prison officials retaliate against
inmate for filing prison grievances). “[A] plaintiff
suffers adverse action if the defendant's allegedly
retaliatory conduct would likely deter a person of ordinary
firmness from the exercise of First Amendment rights.”
Constantine v. Recotors & Visitors of George Mason
Univ., 411 F.3d 474, 500 (4th Cir. 2005).
it is not clearly frivolous, plaintiff may proceed with his