United States District Court, W.D. North Carolina, Charlotte Division
CHRISTOPHER D. ELLERBE, Plaintiff,
JOHN A. HERRING, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
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).
incarcerated Plaintiff filed a civil rights suit pursuant to
42 U.S.C. § 1983, addressing incidents that allegedly
occurred at the Lanesboro Correctional
Institution. He names as Defendants: Administrator John
A. Herring, Unit Manager Kevin Ingram, Assistant Unit Manager
Keith Lambert, Lieutenant Preston, Sergeant Rue, and Officer
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.
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.
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.
STANDARD OF REVIEW
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)).
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.
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