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Moore v. Corpening

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

June 6, 2019

BRICE CHRISTOPHER MOORE, Plaintiff,
v.
FNU CORPENING, et al. Defendants.

          ORDER

          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 Preliminary Injunction and Brief in Support [Doc. 4]; and
(3) Plaintiff's Motion for Need to be Removed from Marion Correctional for My Safety from Staff Members and Gang Members [Doc. 14].

         On March 30, 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 January 7, 2019, pursuant to 42 U.S.C. § 1983, naming the following as Defendants: (1) H. Corpening, identified as the Superintendent of MCI; (2) T.A. Boysworth, identified as Manager of E-Unit Housing at MCI; and (3) T. Hamilton, identified as Assistant Unit Manager at MCI. [Doc. 1 at 2-3].

         Plaintiff brings claims against Defendants complaining of violation of his Eighth Amendment rights based on his conditions of confinement and of violation of his Fourteenth Amendment due process rights. [Doc. 1]. The allegations of Plaintiff's 26-page Complaint are largely duplicative of the allegations of his Complaint in No. 1:19-cv-91-FDW, which was brought against two of the Defendants named in the current action, Defendants Corpening and Hamilton, and a third defendant, FNU Watkins. The Court recently ordered that Plaintiff's Complaint in No. 1:19-cv-91-FDW survived initial review as to all three named Defendants.[1]As such, to avoid unnecessary repetition, the Court incorporates herein by reference the factual recitation in Docket No. 17 in that matter.

         Because Defendant Boysworth was not named as a defendant in No. 1:19-cv-91-FDW, the Court summarizes the Plaintiff's allegations specific to Defendant Boysworth here. Defendant Boysworth was the Unit Manager for E-Unit restrictive Housing at MCI. [Doc. 1 at ¶ 18]. On May 9, 2018, Plaintiff wrote a “request form” to Defendant Boysworth “about the feces/urine being put inside the ventilation system” and “how strong the smell was inside the cells.” [Id. at ¶ 20]. On May 28, 2018, Plaintiff wrote Defendant Boysworth another request form, stating that the condition in the ventilation system was “taking effect on the Plaintiff's health” and causing him to feel “constantly lightheaded.” [Id. at ¶ 22]. On June 14, 2018, the Plaintiff wrote Defendant Boysworth, stating the “if the problem isn't dealt with” Plaintiff planned on filing a Section 1983 complaint against “them.” [Id. at ¶ 23]. Finally, on June 22, 2018, Plaintiff “wrote another request form to [Defendant] Boysworth.” [Id. at ¶ 24]. At the time Plaintiff submitted his Complaint to this Court, on or about December 23, 2018, Defendant Boysworth was leaving or had already left employment with MCI. [Id. at ¶ 45].

         Plaintiff seeks injunctive relief, declaratory relief, and damages.

         II. STANDARD OF REVIEW

         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A the Court must conduct an initial review and identify and dismiss the complaint, or any portion of the complaint, if it is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune to such relief.

         In its frivolity review, this Court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his ...


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