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McClary v. Cullen

United States District Court, E.D. North Carolina

April 11, 2019

Ronald McClary, Plaintiff,
Nurse Cullen and Nurse Martin, Defendants.


          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff Ronald McClary, a state inmate proceeding pro se, commenced this action under 42 U.S.C. § 1983. This matter is currently before the court for the screening required by the Prison Litigation Reform Act (“PLRA”). Also before the court is McClary's motion to amend (D.E. 8). For the following reasons, the court grants McClary's motion to amend and allows his deliberate indifference claim to proceed. However, McClary's claim alleging sexual harassment should be dismissed.

         I. Motion to Amend

         McClary moves to amend his complaint. The court will allow him to amend his complaint as a matter of right. See Fed. R. Civ. P. 15(a)(1).

         II. Screening Under the PLRA

         The PRLA requires courts to review, prior to docketing, actions filed by prisoners against governmental entities or officials. 28 U.S.C. § 1915A(a). The purpose of this review is to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must examine the pleadings, identify cognizable claims, and dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. at § 1915A(b).

         A complaint fails to state a claim upon which relief may be granted if it does not “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). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. McClary's status as a pro se party relaxes, but does not eliminate, the requirement that his complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).

         Here, McClary claims that defendants violated his rights under the Eighth Amendment to the Constitution. The Eighth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments, ” U.S. Const. amend. VIII, and protects prisoners from the “unnecessary and wanton infliction of pain, ” Whitley v. Albers, 475 U.S. 312, 319 (1986). To establish an Eighth Amendment claim, an inmate must satisfy both an objective component-that the harm inflicted was sufficiently serious-and a subjective component-that the prison official acted with a sufficiently culpable state of mind. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996).

         McClary alleges that defendants were deliberately indifferent to his serious medical needs. Specifically, plaintiff contends that, on several occasions in March and April 2018, defendants denied him medical treatment. Compl. at 7, D.E. 1. When he requested treatment, McClary experienced flu symptoms, a burning sensation while urinating, and blood in his urine. Id. Because it does not clearly appear from the face of the complaint that McClary is not entitled to relief, the court permits this claim to proceed. See Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).

         McClary also contends that defendant Nurse Cullen sexually harassed him on one occasion. Specifically, McClary asserts “Cullen said he wanted to put his nose on my penis and see my penis. Not a joke. Cullen is not a doctor and no exam require[s] that sexual harassment.” Am. Compl. at 5, D.E. 8. While the court does not condone this incident, if it happened, an isolated incident of verbal harassment is insufficient to state an Eighth Amendment claim. Jackson v. Holley, 666 Fed.Appx. 242, 244 (4th Cir. 2016) (unpublished) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment”) (quoting Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004)); Howard v. Everett, 208 F.3d 218, 2000 WL 268493, at *1 (8th Cir. 2000) (unpublished) (“We believe this sexual harassment, absent contact or touching, does not constitute unnecessary and wanton infliction of pain”); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (dismissing sexual harassment claim where plaintiff asserted “a small number of incidents in which he allegedly was verbally harassed, touched, and pressed against without his consent”); Accordingly, the district court should dismiss McClary's claim alleging sexual harassment.

         III. Conclusion

         As discussed above, the court allows McClary's motion to amend (D.E. 8).

         McClary's Eighth Amendment claim alleging deliberate indifference may proceed. The clerk of court is directed to proceed in accordance with standing order 14-SO-02 which governs service of process in state prisoner civil rights cases. In the event it becomes necessary, the court directs the United States Marshal Service to make service pursuant to 28 U.S.C. § 1915(d). The clerk of court is further directed to proceed in accordance ...

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