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 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.
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.
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].
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. As such, to avoid
unnecessary repetition, the Court incorporates herein by
reference the factual recitation in Docket No. 17 in that
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 ¶
seeks injunctive relief, declaratory relief, and damages.
STANDARD OF REVIEW
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.
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).
Motion to Appoint Counsel
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.