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. 1]. See 28 U.S.C. §§ 1915(e)(2);
1915A. Also pending before the Court are the following:
(1) Plaintiff's Motion for Appointment of Counsel [Doc.
(2) Plaintiff's Motion for Immediate Help from the Court
(3) Plaintiff's Motion for a Court Order to Have Five
Cells Ventilation System Dropped by Professional H-VAC
Company for Bacteria Testing and Bacteria Device Testing
(4) Plaintiff's Motion to Bring to the Courts Attention
on the Grievance Response No: 3730-2019-EU4C-00417 on Stating
that Brice Moore Made This Same Claim as Well [Doc. 8];
(5) Plaintiff's Motion for the Court to have the
ventilation unit dropped to certain inmates cells location
for fecals bacteria examination and DNA testing [Doc. 10];
(6) Plaintiff's Motion to the Court of Charlotte North
Carolina to Receive the Federal Judge Name for the Western
District of McDowell County. Not the District Judge, But
Federal. Reasons Explain Below [Doc. 12]; and
(7) Plaintiff's Motion to Put the Court on Notice of the
Only Remedy Plaintiff Have Left is Commit a Violent Crime to
be Removed from Marion Correctional to H-Con LockUp Facility
Away from These Infective Ventilation of Fecal Bacteria [Doc.
2, 2019, the Court entered an order waiving the initial
filing fee and directing monthly payments be made from
Plaintiff's prison account. [Doc. 15]. Thus, Plaintiff is
proceeding in forma pauperis.
Plaintiff Brice C. Moore (“Plaintiff”) is a
prisoner of the State of North Carolina, currently
incarcerated at Marion Correctional Institution (MCI) in
Marion, North Carolina. Plaintiff filed this action on March
22, 2019, pursuant to 42 U.S.C. § 1983, naming the
following as Defendants: (1) H. Corpening, identified as the
Superintendent of MCI; (2) FNU Watkins, identified as the
Assistant Superintendent of MCI; and (3) Thomas Hamilton,
identified as Assistant Unit Manager at MCI. [Doc. 1 at 2].
brings a claim against Defendants complaining of his
conditions of confinement in violation of his Eighth
Amendment rights. [Doc. 1]. Plaintiff also brings a First
Amendment retaliation claim against Defendant Hamilton.
[Id.]. The allegations in Plaintiff's 35-page
Complaint are summarized as follows: Thomas Hamilton is the
Assistant Unit Manager for E-Unit Restrictive Housing for
Segregation Lock-Up at MCI. [Id. at ¶ 6]. Since
May 2018, Plaintiff has complained of a “strong
smell” and “toxic bacteria” coming from the
prison's ventilation system as a result of the placement
of fecal matter in the ventilation system by certain gang
members. [Id. at ¶¶ 31-32, 54, 122-23].
Plaintiff contends these gang members are conspiring to
create uninhabitable conditions, forcing Plaintiff to move to
Rehabilitative Diversion Unit (RDU). Specifically, Plaintiff
123. The [gang member] inmate/s uses the bathroom, put on
gloves or nothing at all, scoop the fecals out of their
toilet, places it inside a milk carton, or another container
such as a plastic bottle where their hygiene product comes
in, mix it with urine or water to make a liquid substance out
of it, let it set up for days or weeks to receive it's
strength, and then squirts it inside the ventilation system.
Then they stop up the vents in every cells where they are
housed in, that causes the fumes to force it way through the
ventilation system, and to every cell inside that cell block.
They then takes Muslim oil that they purchase out of the
canteen commissary to make inscents to burn inside there
cell, to down the strength inside their cells. Purchases of
oil from the canteen here on lockup will verify this
[Id. at ¶ 123]. Plaintiff contends, however,
that if he were to move to RDU the gang members would kill
alleges that Defendant Hamilton has willfully and
purposefully ignored and created false reports in relation to
Plaintiff's complaint regarding the bacterial
contamination of the air entering his cell through the prison
ventilation system. Defendant Hamilton is also known to make
inmate grievances disappear. [Id. at ¶¶
46, 54-55]. Defendant Hamilton has gone so far as to
implicate Plaintiff's mental health in response to
Plaintiff's complaints regarding the ventilation system,
stating that Plaintiff had “persistent and delusional
beliefs that there is fecal matter coming out of the
vents….” [Id. at ¶ 55]. Further,
Defendant Hamilton stated that Plaintiff appears to be quite
paranoid in his behaviors and comments regarding other
further alleges that several other officers have investigated
the smell in Plaintiff's cell and agree that it smells of
feces. While some of these officers have reported and/or
given statements regarding these observations, Defendant
Hamilton prevents them from documenting their observations
and/or alters their reports regarding the condition and
threatens Plaintiff that he will make the officers
“deny everything.” [Id. at ¶¶
57-65, 69-70, 74-75, 81, 117, 136-38]. Plaintiff was coerced
into dismissing other cases he has filed with this Court
because of various threats by Defendant Hamilton.
[Id. at 50-52, 139]. Specifically, Plaintiff alleges
that he dismissed Nos. 1:19-cv-00005-FDW,  1:18-cv-191-FDW,
and 1:18-cv-00310-FDW “only for his safety.”
[Id. at ¶¶ 50-52]. On this point,
Plaintiff alleges as follows:
49. Plaintiff has filed at least four cases here against
Marion Correctional Institutional. Two or three of those
cases are involving Thomas Hamilton. And now this case also.
50. Plaintiff was forced by threats to withdraw the cases
against Marion Correctional by Thomas Hamilton, to either
drop the cases if I wanted protection here at Marion
Correctional from the Gang Members, and to be free from the
problem with ...