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
Plaintiff's Complaint, filed under 42 U.S.C. § 1983,
(Doc. No. 1). See 28 U.S.C. §§ 1915A and
Plaintiff Charles Dean Willingham is a pre-trial detainee
incarcerated at the Buncombe County Detention Center in
Asheville, North Carolina. Plaintiff filed this action on
February 21, 2019, naming as Defendants (1) the
“Buncombe County Jail”; (2) “Medical Dept
Staffing, Diet. and Chief BCDF in their Official
Capacity”; (3) “Food/Kitchen Lt./Sgt., Capt.
Corp. Chief of BCDF in their Official Capacity”; (4)
Michael Casterline, identified as a Buncombe County attorney;
(5) and “J.M. Kepple, ” identified as a Buncombe
County judge. Plaintiff's allegations against Defendants
are unclear, but he alleges, among other things, that
“the jail itself the staff here need to be replace[d]
ASAP the new chief need to be replace[d] as well ASAP”;
he has lost weight since entering the jail; he has steel
plates and pins in his feet and legs, and he has been
assigned a top bunk; and he has been subject to “hate
crimes, ” bullying, and threats while in the jail.
(Doc. No. 1 at 3-5).
provisions of 28 U.S.C. § 1915 are mandatory and define
the degree and scope of this Court's initial review of
Plaintiff's Complaint. See Crawford-El v.
Britton, 523 U.S. 574, 596 (1998) (discussing the Prison
Litigation Reform Act (“PLRA”)). Section 1915(g)
of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
is a frequent filer of civil rights actions. At least three
of Plaintiff's previously filed civil rights actions have
been dismissed on the grounds that they were frivolous,
malicious, or failed to state a claim upon which relief may
be granted. See Willingham v. Summers,
1:12cv336-RJC, Order, Doc. No. 15 (W.D. N.C. filed July 12,
2013) (citing cases and finding that Plaintiff qualifies as a
three-striker under § 1915(g)). Plaintiff is, therefore,
subject to 28 U.S.C. § 1915(g)'s bar to filing civil
actions in forma pauperis unless he can show that he is under
imminent danger of serious physical injury. Here, Plaintiff
raises no credible allegations that he is under imminent
danger of serious physical injury as required by §
1915(g). Therefore, this action will be dismissed without
prejudice because Plaintiff has not paid the full filing fee.
event, Plaintiff's action would be subject to dismissal
for other reasons. First, the allegations are simply too
vague, and some too unintelligible, to state a cognizable
violation of federal or constitutional law. Second, the
Buncombe County Jail is not a legal entity capable of being
sued, nor is it a “person” within the meaning of
42 U.S.C. § 1983. See Monell v. Dep't. of Soc.
Servs., 436 U.S. 658, 688 & n.55 (1978) (noting that
for purposes of § 1983 a “person” includes
individuals and “bodies politic and corporate”);
Fed.R.Civ.P. 17(b). Third, naming as Defendants the medical
and food “staffs” at the jail, without naming
specific officers, is not adequate to state a claim against a
“person” as required in § 1983 actions.
Accord Barnes v. Baskerville Corr. Ctr. Med. Staff,
No. 3:07CV195, 2008 WL 2564779 (E.D. Va. June 25, 2008).
Fourth, as to Defendant Michael Casterline, identified as a
Buncombe County attorney, Plaintiff alleges no personal
participation by Defendant Casterline and, in any event, it
is well established that an attorney, whether retained,
court-appointed, or a public defender, does not act under
color of state law, which is a jurisdictional prerequisite
for any civil action brought under 42 U.S.C. § 1983.
See Polk Cnty. v. Dodson, 454 U.S. 312 (1981); see
also Davidson v. Ratliff, No. 4:11-1072-RBH-SVH,
2011 WL 3678679, at *2 (D.S.C. June 3, 2011) (private counsel
was not acting under color of state law under 42 U.S.C.
§ 1983). Finally, as to Defendant Judge Kepple, a
Buncombe County judge, Plaintiff alleges no personal
participation by Judge Kepple, and, in any event, Judge
Kepple is entitled to absolute judicial immunity. See
Stump v. Sparkman, 435 U.S. 349, 359 (1996) (“A
judge is absolutely immune from liability for his judicial
acts even if his exercise of authority is flawed by the
commission of grave procedural errors.”); Imbler v.
Pachtman, 424 U.S. 409, 419 (1976) (stating that
judicial “immunity applies even when the judge is
accused of acting maliciously and corruptly, and it is not
for the protection or benefit of a malicious or corrupt
judge, but for the benefit of the public, whose interest it
is that the judges should be at liberty to exercise their
functions with independence and without fear of
consequences”) (internal quotations omitted).
reasons stated herein, the Court will dismiss this action
without prejudice to Plaintiff to refile after paying the
full filing fee. The Court warns Plaintiff, however, that
refiling would be futile, as his claims against Defendants
fail for the reasons stated in this Order.
THEREFORE, ORDERED that:
1. For the reasons stated herein, the Court finds that
Plaintiff has failed to show that he is under imminent risk
of serious physical injury and he must therefore pay the full
filing fee before he may present this § 1983 complaint