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 [Doc. 10], filed under 42
U.S.C. § 1983. See 28 U.S.C. §§
1915(e) and 1915A.
April 22, 2019, the Court entered an order waiving the
initial filing fee and directing monthly payments to be made
from Plaintiff's prison account. [Doc. 7]. Plaintiff,
therefore, is proceeding in forma pauperis.
Plaintiff Eli Alvarez, a North Carolina state inmate
currently incarcerated at Polk Correctional Institution in
Butner, North Carolina, filed this action on January 29,
2019, pursuant to 42 U.S.C. § 1983. [Doc. 1]. Plaintiff
filed an Amended Complaint on June 11, 2019. [Doc. 10].
Plaintiff alleges that Defendants violated his Eighth and
Fourteenth Amendment rights under the U.S. Constitution in
relation to an alleged sexual assault on October 8, 2018, and
subsequent events. In his Complaint, Plaintiff names the
following persons as Defendants: (1) FNU Davis, identified as
a correctional officer at Marion Correctional Institution
(“Marion”); (2) FNU Morris, identified as a
correctional officer at Marion; (3) Thomas Hamilton,
identified as a Unit Manager at Marion; (4) FNU James,
identified as a Unit Manager and P.R.E.A. Investigator at
Ervin, identified as an Assistant Superintendent of Programs
and P.R.E.A. support personnel at Marion; (6) Donny Watkins,
identified as Assistant Superintendent at Marion; and (7)
Hubert Corpening, identified as superintendent of Marion.
[Doc. 10 at 2-4].
following allegations by Plaintiff are taken as true for the
purpose of this initial review:
As I was attending a tort hearing in a conference room
Defendants N. Davis, and B. Morris sexually abused/assaulted
me (Plaintiff) while I was restrained to a table with
handcuffs, waist chain, and leg irons that where locked into
a locking device on the bottom of the table preventing me
from getting off the chair, C.O. Morris bend down to unlock
my leg irons from the locking device and while down there he
reached behind me and grabed my buttocks real hard, when I
tried to jump off the chair C.O. Davis jumped on top of me
and placed his forearm on the back of my neck and pin me down
to the table face down and started rubbing his penis on my
pack saying derogatory things that they was doing to do to
[Id. at 6 (spelling and grammatical errors
Defendant Hamilton, Plaintiff alleges that he failed to
initiate a medical screening or have photographs of the
Plaintiff's injuries taken when Plaintiff reported the
assault. Plaintiff alleges that Defendant Hamilton did not
respond to his report of sexual assault for four days, did
not send Plaintiff for medical screening for 13 days, and
refused to take photographs of Plaintiff's injuries until
October 30, 2018, all in an attempt to allow Plaintiff's
injuries time to heal and to cover up the assault.
[Id. at 6-7].
Defendant FNU James, Plaintiff alleges that Defendant James
was the P.R.E.A. investigator assigned to Plaintiff's
complaint. Plaintiff alleges that Defendant James was
supposed to start an investigation of a sexual assault as
soon as one is reported. Plaintiff alleges that Defendant
James did not begin an investigation for 15 days.
[Id. at 7]. Plaintiff alleges Defendant James
delayed in beginning the investigation to allow time for
Plaintiff's injuries to heal. Plaintiff showed Defendant
James his injuries and demanded that photographs be taken.
Defendant James refused and told Plaintiff that Defendant
James would note the injuries in his report, which he did not
do. [Id. at 8]. Plaintiff alleges Defendant James
tried to cover up the incident in violation of P.R.E.A.
Defendant Ervin, Plaintiff alleges he was assigned as
Plaintiff's P.R.E.A. support personnel. Plaintiff alleges
that Defendant Ervin never followed up on Plaintiff's
requests for photographs. Plaintiff also alleges that
Plaintiff reported to Defendant Ervin numerous times that
Defendants Davis and Morris continued to harass the Plaintiff
after the incident, telling the Plaintiff that they were
going to rape him. [Id. at 8]. Plaintiff alleges
that Defendant Ervin was “deliberately
indifferent” in allowing the officers to continuously
harass Plaintiff after the incident and failed to protect
him. [Id. at 9].
Defendant Corpening, Plaintiff alleges that he wrote
Defendant Corpening before and after the assault. Plaintiff
alleges he spoke with Defendant Corpening once regarding the
assault and Defendant Corpening failed to take any action to
investigate, despite assurances to the contrary.
[Id. at 9]. Plaintiff alleges that he told Defendant
Corpening that officers were still harassing him during the
P.R.E.A. investigation and Corpening did nothing. Instead,
Defendant Corpening put Plaintiff in “lock up for over
(11) months without seeing the classification board in
violation of policy.” [Id. at 9]. Plaintiff
further alleges that Corpening transferred Plaintiff to
maximum security prison in retaliation for the sexual assault
incident. Plaintiff alleges that Corpening reported that
Plaintiff had 14 infractions when Plaintiff really had seven.
Defendant Watkins, Plaintiff alleges that he wrote Watkins
before and after the assault regarding staff sexual abuse.
Plaintiff alleges he spoke with Defendant Watkins on January
24, 2019, and Watkins said, “Get the hell out of my
house before something worse happens to you, what my boys did
to you was nothing!” [Id. at 10]. Plaintiff
alleges this conversation took place the same day he was
transferred to maximum security. [Id.]. Plaintiff
further alleges that Defendant Watkins knew what was going to
happen to Plaintiff and encouraged “them” to
attack Plaintiff. [Id.].
Plaintiff claims these acts by Defendants were done in
retaliation for Plaintiff's numerous complaints and
grievances and for Plaintiff providing information regarding
staff bringing ...