United States District Court, W.D. North Carolina, Statesville 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. 1]. See 28 U.S.C. §§ 1915(e)(2);
1915A. The Plaintiff is proceeding in forma pauperis. [Doc.
Plaintiff George W. Jones (“Plaintiff”), who is a
North Carolina prisoner currently incarcerated at Mountain
View Correctional Institution located in Spruce Pine, North
Carolina, filed this action on June 12, 2019, pursuant to 42
U.S.C. § 1983. Plaintiff names FNU Parry, identified as
a correctional officer at Alexander Correctional Institution
(“Alexander”), as the sole Defendant in this
matter. [Doc. 1 at 1]. Plaintiff purports to state two causes
of action in his Complaint, which he calls: (1)
“Excessive use of force, Cruel and Unusual Punishment
8th Amendment Assault and Battery;” and (2)
“Cruel and Unusual Punishment 8th Amendment intentional
infliction of emotional distress.” [Doc. 1 at 3].
support of his first claim, Plaintiff alleges that:
On 12-10-2018 at 5:00 pm without provocation while recovering
from Prostate brachytherapy with limited wellness returned, I
requested to watch T.V. After his continued harassment here
then broke my left tibula of my leg. And Body shamed me
twice. He broke my leg by placing his right knee on the back
of my [illegible] and pull up on my foot.
[Id. at 3 (grammatical errors in original)].
Intentional infliction of emotional distress with injury
requirement met by constant taunts, assaultive language,
harsh treatment while recovering form Prostate brachytherapy
disrupting my care and wellness, ending in battery did break
my left tibula of my left leg.
[Id. (grammatical errors in original)].
injuries, Plaintiff states he suffered a broken leg, that he
was demoted and lost his honor grade “[d]ue to
misconduct, ” and mental and emotional injury. [Doc. 1
relief, Plaintiff seeks that Defendant Parry be required to
attend sensitivity training, that criminal charges be brought
against Defendant Parry, restoration of Plaintiff to
“honor grade” with Plaintiff's choice of
facility, and compensatory and punitive damages.
[Id. at 5].
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
under § 1915A the Court must conduct an initial review
and identify and dismiss the complaint, or any portion of the
complaint, if it is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune to such relief.
frivolity review, this 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). Furthermore, a
pro se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts in his ...