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Moore v. FNU Corpening

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

August 19, 2019

FNU CORPENING, et al. Defendants.



         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 Plaintiff's Motion for Appointment of Counsel [Doc. 3]; and Plaintiff's “Declaration of Motion to Memorandum of Law, ” [Doc. 4], which the Court construes as a motion for preliminary injunction and temporary restraining order.

         On July 9, 2019, the Court entered an order waiving the initial filing fee and directing monthly payments be made from Plaintiff's prison account. [Doc. 8]. 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 July 9, 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 in that action.[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.


         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 Complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).


         A. Motion to Appoint Counsel

         The Court first addresses the Plaintiff's motion to appoint counsel. In support of this motion, the Plaintiff states, among other things, that he does not know the law well, does not have access to a law library, that is case is “very complicated, ” and that an attorney could have an investigator come to the prison and test the ventilation system for bacteria. [Doc. 3 at 1-2]. Plaintiff also states that he has written several attorneys and received no responses from them other than from Prisoner Legal Services who advised they could not help unless “numerous” inmates complained about the problem. A plaintiff must present “exceptional circumstances” in order to require the Court to seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Mi ...

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