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 Amended Complaint pursuant to 28 U.S.C.
§ 1915(e) and § 1915A. [Doc. 4]. Plaintiff is
proceeding in forma pauperis. [Docs. 2, 10].
Plaintiff William Kimble, Jr., is an inmate of the State of
North Carolina, currently incarcerated at Bertie Correctional
Institution in Windsor, North Carolina. Plaintiff filed this
action on December 11, 2018, pursuant to 42 U.S.C. §
1983, related to acts he alleged occurred while he was
incarcerated at Marion Correctional Institution
(“Marion”). Plaintiff names as Defendants: (1)
Hilda R. Acord, a registered nurse at Maron, in her
individual and official capacities; and (2) FNU Hergenmother,
a correctional officer at Marion, in his official capacity
only. On December 20, 2018, Plaintiff filed an Amended
Complaint, which the Court construes to include these same
Defendants. In his Amended Complaint, Plaintiff purports to
bring claims against Defendants for violations of a
“Procedural Due Process Right, ” and the Fifth,
Eighth, and Fourteenth Amendments.
Plaintiff alleges that, on October 17, 2018, after the
Defendants were whispering about the Plaintiff, Defendant
Hergenmother approached the Plaintiff and told the Plaintiff
that his eyeglasses were considered “altered.”
The Plaintiff’s eyeglasses were taken to be
photographed and, later that day, the Plaintiff learned the
glasses were confiscated as “contraband because they
were considered ‘altered.’” [Doc. 4 at 2].
The Plaintiff further alleges that at his previous place of
incarceration, a close friend gave the Plaintiff the eyeglass
frames that were taken. However, to make the
Plaintiff’s lenses remain securely in these frames, the
Plaintiff had to melt the bottom of the frames. The Plaintiff
received new eyeglasses on December 3, 2018.[Id. at
1-3]. As damages, Plaintiff claims to have suffered
“constant headaches” while he was without his
eyeglasses and having to take Tylenol. [Id. at 3].
Plaintiff alleges that the confiscation of his eyeglasses
without having been written up for having contraband
“and not having a DC-160 done on the property”
amounted to a violation of procedural due process, as well as
violations of the Eighth, Fifth, and Fourteenth Amendments.
He also vaguely references Defendants’
“deliberate indifference actions.” [Id.
at 4]. Other than this vague reference to “deliberate
indifference, ” the Plaintiff does not allege how the
Eighth Amendment applies to his allegations.
relief, Plaintiff seeks compensatory and punitive damages.
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,
§ 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” and the court must identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint 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 from 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).
Eighth Amendment protects prisoners from inhumane methods of
punishment and from inhumane conditions of confinement.
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.
1996). “Prison conditions may be harsh and
uncomfortable without violating the Eighth Amendment
prohibition against cruel and unusual punishment.”
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997).
Rather, extreme deprivations are required, and “only
those deprivations denying the minimal civilized measure of
life’s necessities are sufficiently grave to form the
basis of an Eighth Amendment violation.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (quoting Wilson v.
Seiter, 501 U.S. 294, 298 (1991) (internal quotation
omitted)). The plaintiff must allege facts sufficient to
support a claim that prison officials knew of and disregarded
a substantial risk of serious harm. Farmer v.
Brennan, 511 U.S. 825, 847 (1994). A plaintiff must also
generally allege “a serious or significant physical or
emotional injury resulting from the challenged
conditions.” Strickler v. Waters, 989 F.2d
1375, 1381 (4th Cir. 1993).
taking Plaintiff’s allegations as true and drawing all
reasonable inferences in Plaintiff’s favor, Plaintiff
has not alleged sufficient facts to proceed past initial
review on an Eighth Amendment claim. The Plaintiff has not
alleged that his glasses were not contraband and, even if he
had, the Plaintiff being without his glass for up to 47 days
is not an extreme deprivation for which Plaintiff has a
remedy under the Eighth Amendment. Plaintiff has also failed
to allege a serious or significant physical or emotional
injury resulting from the condition. The Court also notes
that these Defendants cannot be sued in their official
capacities under § 1983, in any event.
Plaintiff asserts a general Fourteenth Amendment violation
but fails to allege how he contends his ...