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 Complaint filed under 42 U.S.C. § 1983,
(Doc. No. 1). Plaintiff is proceeding in forma
pauperis. See (Doc. No. 5).
se Plaintiff, who is presently a pretrial detainee at
the Sevier County Jail in Sevierville, Tennessee, filed this
action pursuant to 42 U.S.C. § 1983 addressing
incidents that allegedly occurred in Cherokee, North Carolina
on October 11 and December 20, 2018. He names as Defendants:
Cherokee Police Officers A. Hyatt, L. Woodard, and A. Arthur
in their official capacities and Cherokee Indian Hospital
Doctor Orlando Nieves in his individual capacity. The
Complaint's statement of fact section alleges
The Cherokee Police Officers physically assaulted me,
violated my 8thAmendment rights by illegally
detaining and searching me. Dr. Nieves physically assaulted
me and denied me my rights to medical attention. I was
illegally extradited from Cherokee, N.C. to Sevierville TN.
(Doc. No. 1 at 5).
alleges that Defendants also violated several other of his
civil rights. (Doc. No. 1 at 3-4). Plaintiff claims that he
suffered “shoulder injuries due to the assault by
Cherokee police” and that he was taken to Cherokee
Indian Hospital where he “received injuries from Dr.
Nieves, and subsequently denied medical attention.”
(Doc. No. 1 at 5). Plaintiff seeks medical treatment,
compensation for medical bills, and compensation for
“mental and physical anguish.” (Doc. No. 1 at 5).
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, 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). 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.
initial review, the Court finds that Plaintiff's
Complaint suffers from many deficiencies. Plaintiff must
therefore amend his Complaint, or this action will be subject
to dismissal without prejudice and without further notice to
instance, Plaintiff only asserts claims against the Defendant
police officers in their official capacities. However, his
allegations are completely conclusory and fail to explain
each of the Defendant police officers' actions.
See Fed.R.Civ.P. 8(a)(2) (requiring a short and
plain statement of the claim); Simpson v. Welch, 900
F.2d 33, 35 (4th Cir. 1990) (conclusory
allegations, unsupported by specific allegations of material
fact are not sufficient); Dickson v. Microsoft
Corp., 309 F.3d 193, 201-02 (4th Cir. 2002)
(a pleader must allege facts, directly or indirectly, that
support each element of the claim). Further, Plaintiff
provides no basis for an official-capacity claim against any
of these Defendants. See generally King v.
Rubenstein, 825 F.3d 206, 223-24 (4th Cir.
2016) (an official-capacity suit is treated as a suit against
the entity, which must then be a moving force behind the
deprivation, thus, the entity's policy or custom must
have played a part in the violation of federal law) (quoting
Polk County v. Dodson, 454 U.S. 312, 326 (1981),
Monell v. Dep't of Soc. Servs. of City of NY,
436 U.S. 658, 694 (1978)).
claims against Dr. Nieves in his individual capacity fare no
better. See generally King, 825 F.3d at 223 (for
personal liability, it is enough to show that the official,
acting under the color of state law, caused the deprivation
of a federal right) (quoting Kentucky v. Graham, 473
U.S. 159, 166 (1985)). Plaintiff fails to allege that Dr.
Nieves, who appears to be a private citizen, acted under the
color of state law. See generally Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49-50 (1999) (to state a claim
under § 1983, a plaintiff must allege that he 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.”). Moreover,
the allegations that Dr. Nieves' ...