United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of the Amended
Complaint, (Doc. No. 6). Plaintiff is proceeding in forma
pauperis. (Doc. No. 3).
Plaintiff purports to file suit under 42 U.S.C. § 1983,
whose present address is in Charlotte, North Carolina,
against Defendant Jerrad Collins, Director of Charlotte
Men's Shelter Services, in Charlotte. (Doc. No. 6 at 1).
Plaintiff claims that the Men's Shelter, at the time of
the claim, “ran under North Carolina statutes.”
(Doc. No. 6 at 2).
the Amended Complaint liberally and accepting the allegations
as true, Plaintiff alleges that Defendant violated
“housing laws” by “kicking [Plaintiff] out
of shelter” for 28 days without a hearing or proof of a
violation by Plaintiff, i.e., that he used or possessed
illegal drugs on the property. (Doc. No. 6 at 2). Plaintiff
claims that his eviction from the shelter subjected him to
cruel and inhumane conditions because he had nowhere to stay
and had to sleep in the woods. Cold and rain caused him to
catch pneumonia and he was treated at the V.A. Hospital with
antibiotics and cough medication.
seeks damages for each hour of the 28 days when he was barred
from the shelter “to deter, rid the evil from again
happening.” (Doc. No. 6 at 5).
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Amended Complaint to determine whether it is
subject to dismissal on the grounds that it is
“frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). The Court must determine
whether the Amended 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).
state a claim under § 1983, a plaintiff must allege that
she was “deprived of a right secured by the
Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state
law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49-50 (1999). The color of law requirement “excludes
from its reach merely private conduct, no matter how
discriminatory or wrongful.” Id. at 50
(internal quotations omitted). In rare cases, the state can
“so dominate [private] activity as to convert it to
state action.” Philips v. Pitt Cnty. Mem'l Hosp.,
572 F.3d 176, 181 (4th Cir. 2009). To satisfy the
state action requirement, a plaintiff must demonstrate that
the conduct at issue is “fairly attributable to the
State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). Conduct is fairly attributable to the state where:
(1) it is “caused by the exercise of some right or
privilege created by the State or by a rule of conduct
imposed by the State or by a person for whom the State is
responsible;” and (2) where the party charged with the
deprivation is a person who may “fairly be said to be a
state actor.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50 (1999). “Without state action, [plaintiff]
has no § 1983 claim.” Thomas v. Salvation Army
Southern Territory, 841 F.3d 632, 637 (4th Cir.
2016) (affirming dismissal pursuant to §
1915(e)(2)(B)(ii) where plaintiff did not allege any facts
that even remotely suggested that defendants' actions
were attributable to the state).
8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Erickson v. Pardus,
551 U.S. 89, 93 (2007). The statement of the claim does not
require specific facts; instead, it “need only
‘give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.'”
Id. (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). However, the statement must assert
more than “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555.
se complaint must be construed liberally. See 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 the 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.
alleges that the Men's Shelter “ran under North
Carolina Statutes” and that he was evicted from the
Shelter on allegations of drug use or possession without
proof of any wrongdoing by Plaintiff. (Doc. No. 6 at 2).
Liberally construed, it appears that Plaintiff is alleging
that he had a right to receive shelter pursuant to a State
statute that, in turn, required due process before that right
was terminated, which Defendant Collins violated. See Board
of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705
(1972) (“To have a property interest in a benefit [that
gives rise to a due process right], a person must have more
than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.”). This claim is
minimally sufficient to proceed. Plaintiff also alleges that
his eviction from the Shelter resulted in cruel and inhumane
conditions. The Eighth and Fourteenth Amendments apply to
cruel and unusual conditions of confinement as a result of a
criminal conviction, criminal pretrial detention, or civil
commitment. See Ingraham v. Wright, 430 U.S. 651, 664, 97
S.Ct. 1401, 1408-09, 51 L.Ed.2d 711 (1977) (imprisonment);
Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447
(1979) (pretrial detention); Youngberg v. Romeo, 457 U.S.
307, 102 S.Ct. 2452 (1982) (civil commitment).
fails to allege that he belongs to any of these categories
and his allegations suggest that he was completely free of
any Government fetters when he experience the rainy and cold
conditions. To the extent that he attempts to state a claim
for cruel and unusual ...