Kimble v. Acord

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS 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].

         I. BACKGROUND

         Pro se 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.

         Specifically, 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.^[1][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.

         For relief, Plaintiff seeks compensatory and punitive damages.

         II.STANDARD OF REVIEW

         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, § 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).

         III. DISCUSSION

         A. Eighth Amendment

         The 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).

         Here, 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.

         B. Fourteenth Amendment

         The Plaintiff asserts a general Fourteenth Amendment violation but fails to allege how he contends his ...