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Alvarez v. Davis

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

October 30, 2019

ELI ALVAREZ, Plaintiff,
v.
FNU DAVIS, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS 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.

         On 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.

         I.BACKGROUND

         Pro se 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.[1] Investigator at Marion; (5)

         FNU 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].

         The 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 me.

[Id. at 6 (spelling and grammatical errors uncorrected].

         As for 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].

         As for 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. policy. [Id.].

         As for 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].

         As for 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. [Id.].

         As for 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.].

         Finally, 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 ...


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