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Jones v. FNU Parry

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

December 18, 2019

GEORGE JONES, Plaintiff,
v.
FNU PARRY, Defendant.

          ORDEDR

          Frank D. Whitney Chief United States District Judge.

         THIS 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. 2, 9].

         I. BACKGROUND

         Pro se 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].

         In support of his first claim, Plaintiff alleges that:

On 12-10-2018 at 5:00 pm without provocation while recovering from Prostate brachytherapy[1] 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)].

         For his 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 at 3].

         For 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].

         II. STANDARD OF REVIEW

         Because 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.

         In its 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 ...


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