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Ellerbe v. Herring

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

August 19, 2019

JOHN A. HERRING, et al., Defendants.



         THIS MATTER is before the Court on initial review of pro se Plaintiff's Complaint, (Doc. No. 1). Plaintiff has also filed several Motions that are pending for the Court's review. (Doc. Nos. 3, 12, 13). Plaintiff is proceeding in forma pauperis. (Doc. No. 10).

         I. BACKGROUND

         Pro se incarcerated Plaintiff filed a civil rights suit pursuant to 42 U.S.C. § 1983, addressing incidents that allegedly occurred at the Lanesboro Correctional Institution.[1] He names as Defendants: Administrator John A. Herring, Unit Manager Kevin Ingram, Assistant Unit Manager Keith Lambert, Lieutenant Preston, Sergeant Rue, and Officer Sellers.

         Liberally construing the Complaint and accepting the allegations as true, Plaintiff was on restricted housing on the Anson Unit around 8:15 PM on November 4, 2018 when Officer Sellers “sexually assaulted” him by intentionally spraying an excessive amount of pepper spray at Plaintiff's privates, midsection, legs, and property. Plaintiff was not given the opportunity to shower and decontaminate himself from the pepper spray. Plaintiff told Sergeant Rue the he needed medical treatment but Rue refused to acknowledge this request. Plaintiff also requested to see the officer in charge, Lieutenant Preston, but that was denied as well. Plaintiff alleges that these practices were part of a chronic violation of policy and procedures by Defendants Preston, Rue, and Sellers. These Defendants were fully aware of the situation and intentionally denied him medical treatment. Defendants Preston and Rue refused to take a statement from Plaintiff about the incident, in violation of policy and procedures.

         Plaintiff repeatedly washed off in his cell sink with cold water but he was still burning from the pepper spray. The following morning, Plaintiff sent a request form to Defendant Ingram about this urgent matter but he did not response. Plaintiff spoke to Ingram face-to-face and Ingram said he was not going to review the surveillance video footage and that Plaintiff should file a grievance about the matter. On November 5, 2018, Plaintiff also sent a request form to Defendant Lambert and he denied Plaintiff a response about his sexual assault allegations. Plaintiff spoke to Lambert face-to-face at a later date. Lambert said that he “didn't give a shit” and that Plaintiff should file a grievance. (Doc. No. 1 at 11). On November 5, 2018, Plaintiff also write a request form to Defendant Herring and never received a response. It is a known practice by unit management to keep offenders form being able to properly file their grievances.

         Since that incident, Plaintiff has had a burning sensation and red splotches on his skin. Plaintiff had to take care of himself without a nurse or doctor. Plaintiff was finally able to file a grievance on January 4, 2019 and investigators made it possible for him to see a nurse on January 17, 2019. Nurse Vasquez documented Plaintiff's physical condition including burn scars on that day. Plaintiff spoke to PREA investigators on February 7, 2019. Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, a jury trial, costs, and any additional relief the Court deems just, proper, and equitable.


         Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity review, a 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). A complaint should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). 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 pro se complaint must still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id.


         (1) Parties

         The body of the Complaint contains allegations against individuals who are not named as defendants in the caption as required by Rule 10(a). This failure renders Plaintiff's allegations against them nullities. See, e.g., Londeree v. Crutchfield Corp.,68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were ...

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