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Fox v. Kinlisky

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

March 25, 2019

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 ...


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