United States District Court, W.D. North Carolina, Charlotte Division
DUANE L. FOX, A/K/A DUANE LEROY FOX, A/K/A JENNIFER ANN JASMAINE, Plaintiff,
v.
FNU KINLISKY, CHRISTOPHER P. MURY, FNU GOING, KENNETH RAYMOND, FNU FOX, ELIZABETH D. WALLACE, FNU HARRIS, ROBERT E. CAMPBELL, JAMES D. FOSTER, JONATHAN D. FRANKLIN, DANIEL REDDING, FNU BYRD, JANE DOE 1-4, JOHN DOE 1-4, FNU PITTS, FNU HOLLER, FNU CRUMP, FNU MILLER, MCCURRAY, FNU DYE, FNU BEAVER, FNU ANDERSON, FNU HESTER, FNU BROWN, FNU DUNLAP, FNU BLANKETSHIP, FNU O'BRIAN, FNU COOK, FNU TOWNSLIN, FNU TEEK, Defendants.
ORDER
Frank
D. Whitney Chief United States District Judge
THIS
MATTER is before the Court upon initial review of
Plaintiff Duane L. Fox's pro se Complaint (Doc. No.
1).[1]
See 28 U.S.C. § 1915(e). Also before the Court
are Plaintiff's Motion for Appointment of Counsel (Doc.
No. 6), Motion for Additional Prayer for Relief (Doc. No. 8),
and Motion to Increase the Limit for Interrogatories (Doc.
No. 12).
I.
BACKGROUND
Plaintiff,
a prisoner of the State of North Carolina, has filed a
Complaint pursuant to 42 U.S.C. § 1983, naming 36
current and/or former employees of the North Carolina
Department of Corrections (“NCDPS”) as
Defendants. She claims that while she was housed at Alexander
Correctional Institution (“ACI”), one or more of
these Defendants, at various specified and unspecified times,
violated one or more of the following rights:
Eighth Amendment, Due Process, Harassment, deliberate
Indifference, First Amendment, Fourteenth Amendment,
Religious Land Use and Institutionalized persons Act
(RLUIPA), Free Exercise Clause, Establishment Clause[, ]
Freedom of Discrimination, Right to be Free from Cruel and
Unusual Punishment, PREA[, ] 42 U.S.C. 15601(13), 42 U.S.C.
15602(1), Fourth Amendment - unreasonable searches
(Compl. 2-3, Doc. No. 1.)[2] Plaintiff currently is housed at
Lanesboro Correctional Institution (“LCI”).
See NCDPS Offender Public Information website,
supra, at n.1.
II.
FEDERAL RULES OF CIVIL PROCEDURE 18, 20(A)(2) AND 21
Under
Rule 18(a) of the Federal Rules of Civil Procedure, a
plaintiff may bring multiple claims, related or not, in a
lawsuit against a single defendant. See Fed.R.Civ.P.
18(a). However, to name other defendants in the same lawsuit,
the plaintiff must satisfy Rule 20(a)(2), which permits
joinder of multiple defendants only where the right to relief
asserted against them arises out of the same transaction or
occurrence and concerns a common question of law or fact.
See Fed.R.Civ.P. 20(a)(2). In other words, “a
plaintiff may join multiple defendants in a single action
only if the plaintiff asserts at least one claim for relief
against each of them that arises out of the same
transaction or occurrence and presents a question of law or
fact that is common to all of them.” McCoy v.
Bazzle, 4:07-cv-3562-PMD-TER, 2008 WL 4280386, at *5
(D.S.C. Sept. 15, 2008) (emphasis added). To remedy
improperly joined parties, the court should not dismiss the
action outright, but “the court may at any time, on
just terms, add or drop a party.” Fed.R.Civ.P. 21. The
court may act upon motion by a party or sua sponte.
Id.
The
Complaint consists of 194 pages of repetitive allegations
against individual Defendants that fall into the following
categories: 1) deliberate indifference to Plaintiff's
serious medical needs (physical) (Defendants Kinlisky, Fox,
Harris, Byrd, Jane Doe #1-#4, John Doe #1-#3); 2) deliberate
indifference to Plaintiff's serious medical needs
(mental) (Defendants John Doe #4, Crump, O'Brian); 3)
universal denial at all levels of Plaintiff's grievances
(Defendants Mury/Murry, [3] Raymond, Wallace, Campbell, Foster,
Franklin, Dye, Beaver, Anderson); 4) singling out Plaintiff
for wearing pants that are too tight (Defendants Going,
Holler, Miller, Dye, Beaver, Anderson, Townslin); 5) no
reprisal for false PREA filed against Plaintiff by another
inmate (Defendants Pitts, Holler, Miller); 6) denial of
Plaintiff's grievance about attempted purchase of art
supplies (Defendant Miller); 7) deliberate indifference to
Plaintiff's physical safety (Defendants Pitts,
Blanketship, Holler, Miller, McCurray, Dye, Beaver, Anderson,
Hester, Dunlap, Cook, Townslin); 8) violations of
Plaintiff's right to worship (Wicca) (Defendants Redding,
Brown); and 9) failure to credit $2.00 to Plaintiff's
prison trust account for return of a purchase (Teek). The
Court finds that Plaintiff's claims for relief alleging
deliberate indifference to serious medical needs, both
physical and mental, arguably arise out of the same
“transaction or occurrence” and present a common
question of law or fact. None of the other categories of
claims, to the extent they are actionable, are related to the
medical claims or, in most instances, each other.
It
appears that these categories of claims are really separate
lawsuits combined together for no apparent reason except to
avoid paying filing fees. Since there appears to be no
legitimate basis for joining all these Defendants and claims
together, the Court finds that the claims against all but
those named in the medical-related claims should be severed
from this action. In so finding, the Court notes that the
potential prejudice to the individual Defendants if their
cases were to be tried together, given the wide variety of
unrelated claims against them, is obvious.[4]Nevertheless, for
the sake of judicial economy, the Court shall dismiss several
of Plaintiff's claims that on their face are not
actionable and dismiss the remaining Defendants who are not
named in Plaintiff's claims alleging deliberate
indifference to serious medical needs, see
Fed.R.Civ.P. 21.
The
Court notes the Complaint also includes allegations about
various issues that Plaintiff makes no effort to tie to any
named Defendant. For example, in pages 163-167, Plaintiff
discusses gender dysphoria and its treatment and makes a
conclusory assertion that “Defendants put off and
outright denied [her] . . . access to healthcare for
GD.” (Compl. 165 ¶ 7.) Plaintiff does not identify
which Defendant(s) denied her access to treatment for GD, the
type of treatment she sought for GD, or when she was denied
access to treatment for GD at ACI. In other words, although
she claims Defendants Kinlisky, Fox, Harris, Byrd, Jane Doe
#1-#4, John Doe #1-#4, Crump, and O'Brian were
deliberately indifferent to her serious medical needs, she
does not allege any denied her access to treatment for GD.
The Court finds the Complaint does not raise a claim for
relief related to GD. The Court also finds the Complaint does
not raise a claim for relief based on her designation as a
member of a security risk group (Compl. 171 ¶ 7, 172
¶ 9), theft of some of her possessions (172-173 ¶
11), or the mail room losing her “MAD” magazine
(Compl. 173 ¶ 12, 175 ¶ 7).
III.
STANDARD OF REVIEW
Because
Plaintiff is a prisoner proceeding in forma pauperis (Doc.
No. 11), 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, the Court must determine whether the
Complaint raises an “indisputably meritless legal
theory, ” Denton v. Hernandez, 504 U.S. 25, 32
(1992), or is founded upon clearly baseless factual
contentions, such as “fantastic or delusional
scenarios, ” Neitzke v. Williams, 490 U.S.
319, 327-28 (1989).
While a
pro se complaint must be construed liberally, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), the liberal
construction requirement will not permit a district court to
ignore a plaintiff's clear failure to allege facts which
set forth a claim that is cognizable under federal law,
see Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990). A complaint fails to state a claim for
relief if after accepting all well-pleaded allegations in the
complaint as true and drawing all reasonable factual
inferences from those allegations in the plaintiff's
favor, the complaint does not contain enough facts to
“raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007); see also
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.
IV:
DISCUSSION
To
state a claim under § 1983, Plaintiff “must allege
the violation of a right secured by the Constitution and laws
of the United States[ ] and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988).
A.
Claims Subject to Immediate Dismissal
1.
Tight Pants
Plaintiff
alleges Defendants Going, Holler, Miller, Dye, and Townslin,
identified as ACI corrections officers, singled her out for
wearing pants that were too tight and
“antagonized” and/or “harassed” her
about it and/or wanted her to wear baggy pants. (Compl.
30-31; 90 ¶ 4; 97-98 ¶ 4; 113 ¶ A; 155-156
¶ 2.) She does not specify how she was antagonized or
harassed, except to assert in the case of Defendant Going
that she was locked in her cell and required to eat on the
unit instead of going to the dining hall because
“they” wanted her to change into a larger pants
size. (Compl. 31 ¶ D.) Otherwise, Plaintiff's
allegations are that none of the Defendants singled out other
inmates for wearing pants that sag below their backsides,
that homosexual inmates were allowed to wear tight pants, and
that female nurses, guards, and administrative staff were
allowed to wear tight pants. Plaintiff contends Defendants
Beaver and Anderson, identified as ACI Superintendent and
Assistant Superintendent, respectively, are liable because of
their supervisory positions over the other Defendants.
(Compl. 123 ¶ A; 133-134 ¶ A.)
Plaintiff
does not identify a constitutional right at issue. She does
not have a constitutional right to choose either the type or
size of her prison clothing, and she has failed to identify
any prison or State policy that creates a liberty interest in
allowing her to wear tight pants. A claim by Plaintiff that
Defendants violated her Eighth Amendment right against cruel
and unusual punishment by not allowing her to wear tight
pants would be frivolous.
The
Court finds Plaintiff's allegations against Defendants
are frivolous and that she has failed to state a claim upon
which relief may be granted. Accordingly, her claims against
Defendants Going, Holler, Miller, Dye Townslin, Beaver, and
Anderson related to her tight pants is dismissed with
prejudice as frivolous and ...