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Moore v. Corpening

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

May 31, 2019

H. CORPENING, et al. Defendants.


          Frank D. Whitney, Chief United States District Judge.

         THIS 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. 3];
(2) Plaintiff's Motion for Immediate Help from the Court [Doc. 6];
(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 [Doc. 7];
(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. 13].

         On May 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.

         I. BACKGROUND

         Pro se 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].

         Plaintiff 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).[1] Specifically, Plaintiff alleges:

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 statement.

[Id. at ¶ 123]. Plaintiff contends, however, that if he were to move to RDU the gang members would kill him.[2]

         Plaintiff 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 inmates. [Id.].

         Plaintiff 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, [3] 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 ...

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