United States District Court, E.D. North Carolina
ORDER AND MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
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.
Motion to Amend
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).
Screening Under the PLRA
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).
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.
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).
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).
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.
discussed above, the court allows McClary's motion to
amend (D.E. 8).
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