United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER comes before the Court on initial review of
Plaintiff's Complaint, (Doc. No. 1). Plaintiff is
proceeding in forma pauperis. (Doc. No. 8).
se Plaintiff, who is currently incarcerated at the
Alexander Correctional Institution, filed a civil rights suit
pursuant to 42 U.S.C. § 1983 addressing incidents that
allegedly occurred at the Mountain View and Alexander C.I.s.
The Defendants are Mountain View C.I. Sergeant Buchanan,
Alexander C.I. Captain Chester, and Alexander C.I. Security
Threat Group (“STG”) Officer Dula.
the Complaint liberally and accepting the allegations as
true, Sergeant Buchanan retaliated against Plaintiff for
filing a grievance against him in September 2016 by having
Plaintiff validated as a gang member and placed on the STG
list. Plaintiff denies that he is, or ever has been, a gang
member and that he is not racist. Plaintiff admits that he
ate with, and lifted weights with, known members of the Aryan
Brotherhood, but that he had no choice in the matter because
there is only one chow hall and one weight pile. In February
2018, Captain Chester and Officer Dula had Plaintiff moved to
the gang block for observation and refused to take him off
the STG list. These same two officers came to Mountain View
C.I. to interview Plaintiff for purposes of validation and
asked why he was there because he did not meet any of the STG
criteria. They nevertheless refused to take him off the STG
list. Plaintiff claims that he and his family have
“suffered greatly” because Plaintiff is not
allowed to have contact visits with his family, that
“other races perceive [him] as their enemy…,
” and that he is at greater danger of being caught up
in gang violence because of his STG designation. (Doc. No. 1
at 3). Plaintiff seeks injunctive relief and compensatory and
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma
pauperis, the Court must review the Complaint to
determine whether it is subject to dismissal on the grounds
that it is “(i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). In its
frivolity review, a 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). A complaint
should not be dismissed for failure to state a claim
“unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
pro se complaint must be construed liberally.
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
his 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. 1990). A
pro se complaint must still contain sufficient facts
“to raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (the Twombly
plausibility standard applies to all federal civil complaints
including those filed under § 1983). This
“plausibility standard requires a plaintiff to
demonstrate more than a sheer possibility that a defendant
has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal
quotation marks omitted). He must articulate facts that, when
accepted as true, demonstrate he has stated a claim entitling
him to relief. Id.
officials may not retaliate against an inmate for exercising
a constitutional right. See Hudspeth v. Figgins, 584
F.2d 1345, 1347 (4th Cir.1978). To succeed on such
a claim, a plaintiff must first allege that “the
retaliatory act was taken in response to the exercise of a
constitutionally protected right....” Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994).
Thereafter, a plaintiff must demonstrate that he suffered
some adverse impact or actual injury. See American Civil
Libs. Un. of Md., Inc. v. Wicomico Cnty., 999 F.2d 780,
785 (4th Cir. 1993) (citing Huang v. Board of
Governors of Univ. of N.C. , 902 F.2d 1134, 1140
(4th Cir. 1990)). In addition, a plaintiff must
come forward with specific evidence “establish[ing]
that but for the retaliatory motive the complained of
incident[s] ... would not have occurred.” Woods v.
Smith, 60 F.3d 1161, 1166 (5thCir. 1995);
accord Ponchik v. Bogan, 929 F.2d 419, 420
(8th Cir.1991) (plaintiff must show that action
would not have occurred “but for” the alleged
reprisal); Collinson v. Gott, 895 F.2d 994, 1002
(4th Cir. 1990) (Phillips, J., concurring);
McDonald v. Hall, 610 F.2d 16, 18-19 (1st
Cir.1979). In the prison context, such claims are treated
with skepticism because “[e]very act of discipline by
prison officials is by definition ‘retaliatory' in
the sense that it responds directly to prisoner
misconduct.” Adams, 40 F.3d at 74.
Plaintiff alleges that Defendant Buchanan placed him on the
STG list for exercising his First Amendment right to file a
grievance, he also admits that he ate with, and lifted
weights with, members of the Aryan Brotherhood. He has
therefore failed to allege that his designation as a gang
member associate was caused by Defendant Buchanan's
retaliatory motive. Plaintiff has failed to state a
retaliation claim against Defendants Chester and Dula because
he does not allege that their actions - leaving him on the
STG list - were taken in response to Plaintiff exercising a
constitutionally protected right. Nor does he allege that
Defendants Chester and Dula's actions would not have
occurred but for a retaliatory motive.
Plaintiff's Complaint, as submitted, fails to state a
claim against any named Defendant and is subject to dismissal
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court
will allow Plaintiff the opportunity to amend his Complaint,
if he so chooses.
reasons stated herein, Plaintiff shall have thirty (30) days
in which to file an Amended ...