Smith v. Staton et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:24-cv-50-MOC
BRIAN MARK SMITH, )
)
Plaintiff, )
)
vs. )
)
DEPUTY STATON, et al., ) ORDER
)
Defendants. )
___________________________________ )
THIS MATTER is before the Court on initial review of the Complaint [Doc. 1]. Plaintiff
is proceeding in forma pauperis. [Doc. 10].
I. BACKGROUND
The pro se Plaintiff filed this civil rights suit pursuant to 42 U.S.C. § 1983 while he was a
pretrial detainee at the Cleveland County Detention Center (CCDC), addressing the circumstances
of his arrest on September 17 or 21, 2023 when a police dog bit him.1 [Doc. 1 at 4, 13]. He names
as Defendants in their individual and official capacities: FNU Staton, a Cleveland County Sheriff’s
Office (CCSO) deputy; and Joker, a CCSO police dog. [Doc. 1 at 2]. The Plaintiff asserts claims
for “8th & 14th amendment use of excessive force & cruel & unusually punishment.” [Id. at 3]
(errors uncorrected). He claims that “they … siced” Joker on him for “no reason” while he was
1 The Plaintiff’s address of record with the Court is at the Piedmont Correctional Institution. However, the North
Carolina Department of Adult Corrections’ website indicates that the Plaintiff is presently located at the Avery-
Mitchell Correctional Institution. See
https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=1663691&searchLastName=smith
&searchFirstName=brian&searchMiddleName=m&searchDOBRange=0&activeFilter=2&listurl=pagelistoffenderse
archresults&listpage=1 (last accessed March 25, 2024); Fed. R. Ev. 201. The Plaintiff is reminded that it is his
responsibility to keep the Court apprised of his present address at all times, and that the failure to do so may result in
the dismissal of this action for lack of prosecution. [See Feb. 15, 2024 Order of Instructions].
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on the ground and complying with police, and that he was “viciously mauld.” [Id. at 5, 12-13]. For
injury, he claims:
The K9 Joker tore half my ear off and ripped my neck open not to mention
I could hard walk for 3 weeks the detion officer had to pick me off the floor I still
have a headach and swollen head the med staff only said I’ve see wrose with Joker
I was lucky I beg the differ.
…
Since my arrest I have been having seviere headaches, loss of vision,
stomach pains, swelling in my dead and side. The pain is unbearable and makes it
almost impossible to sleep at night….
[Id. at 5, 13] (errors uncorrected). He seeks damages and injunctive relief.2 [Id. at 12].
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 “(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); see 28 U.S.C. § 1915A
(requiring frivolity review for prisoners’ civil actions seeking redress from governmental entities,
officers, or employees).
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). Furthermore, a pro se
2 The Plaintiff’s claims for injunctive relief appear to be moot insofar as the Plaintiff no longer resides at CCDC. See
generally Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (“the transfer of an inmate from a unit or location
where he is subject to [a] challenged policy, practice, or condition, to a different unit or location where he is no longer
subject to the challenged policy, practice, or condition moots his claims for injunctive and declaratory relief.”). He
also appears to seek the suspension Defendant Staton’s employment, which is outside the purview of this § 1983
action. See generally DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989) (“The Due
Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to
secure life, liberty, or property interests of which the government itself may not deprive the individual.”)); see, e.g.,
Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002) (arrestee had no constitutional right to internal investigation
of excessive force claim); Van Houten v. Gaskill, 2006 WL 749410 (D. Kan. March 22, 2006) (“whether to fire or
demote an employee is a personnel issue beyond the jurisdiction” of the district court).
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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 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).
III. DISCUSSION
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
by a “person” acting under color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S.
166 (2023).
The Plaintiff uses vague terms and pronouns rather than identifying the individual(s)
involved in each allegation. [See, e.g., Doc. 1 at 5, 13 (referring to “they,” “detion officer,” “med
staff,” and “the police” )]. Such claims are too vague and conclusory to proceed insofar as the
Court is unable to determine the individual(s) to whom these allegations refer. See Fed. R. Civ. P.
8(a)(2) (requiring a “short and plain statement of the claim showing that the pleader is entitled to
relief”); 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). Moreover, the Plaintiff’s claims are nullities insofar as they refer to
individuals not named as defendants in the caption as required by the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties”); Myles
v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify
him in the caption and arrange for service of process.”); Perez v. Humphries, No. 3:18-cv-107-
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GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A plaintiff’s failure to name a
defendant in the caption of a Complaint renders any action against the purported defendant a legal
nullity”). The allegations directed at individuals not named as Defendants, or which refer to non-
parties, are therefore dismissed without prejudice.
The Plaintiff names Joker, a police dog, as a Defendant. However, a dog is not a “person”
for purposes of § 1983 and this action cannot proceed against him. See Dye v. Wargo, 253 F.3d
296, 299 – 300 (7th Cir. 2011) (A dog is not a proper defendant in a § 1983 action); see also Mickle
v. Ahmed, 444 F. Supp. 2d 601, 605 n.2 (D.S.C. Jul. 10, 2006) (“Vito K-9,” a police dog, is not a
“person” and, therefore, is not an appropriate defendant to a § 1983 claim); Stout v. Preston Cnty.
Sherriff [Sic] Dep’t., No. 1:19-cv-123, 2021 WL 1540468, at *6 (N.D.W. Va. Jan. 14, 2021)
(dismissing a canine officer as a defendant for failure to state a claim upon which relief can be
granted), report and recommendation adopted sub nom. Stout v. Preston Cnty. Sheriff’s Dep’t,
No. 1:19-cv-123, 2021 WL 1217315 (N.D.W. Va. Mar. 31, 2021). Accordingly, the claims against
Joker will be dismissed with prejudice.
To establish individual liability under 42 U.S.C. § 1983, a plaintiff must show that the
defendants “acted personally” to cause the alleged violation. See Vinnedge v. Gibbs, 550 F.2d
926, 928 (4th Cir. 1977) (citation omitted). As such, the doctrine of respondeat superior does not
apply in actions brought under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). The Plaintiff does not make any allegations about Defendant Staton’s personal
involvement in the Plaintiff’s arrest. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain
statement of the claim showing that the pleader is entitled to relief”); 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
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must allege facts, directly or indirectly, that support each element of the claim). Therefore, the
claims against Defendant Staton in his individual capacity will be dismissed without prejudice for
failure to state a claim upon which relief can be granted.
Suits against an officer in his official capacity “generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473
U.S. 159, 165 (1985) (quoting Monell v Dep’t of Soc. Servs. of the City of New York, 436 U.S.
658, 690 n. 55 (1978)). The Office of Sheriff is not liable under § 1983 for an employee’s acts
“unless action pursuant to official municipal policy of some nature caused [the] constitutional
tort.” Collins v. City of Harker Heights, 503 U.S. 115, 120-21 (quoting Monell, 436 U.S. at 691).
That is, “[f]or a governmental entity to be liable under section 1983, the official policy must be
the moving force of the constitutional violation.” Moore v. City of Creedmoor, 345 N.C. 356,
366, 481 S.E.2d 14, 21 (1997) (internal quotation marks and citations omitted). “Thus, the entity’s
‘policy or custom’ must have played a part in the violation of federal law.” Id. (quoting Monell,
436 U.S. 658, 694). Here, the Plaintiff alleges that Defendant Staton is “not a good dog handler
and from past experience with many other case’s you have reviewed I’m it’s the same where he
uses K-9 Joker in his cruel and unusual punishment wich is wrong.” [Doc. 1 at 12] (errors
uncorrected). These allegations are too vague, conclusory, and confusing to state a plausible
Monell claim. . Accordingly, the claims against Defendant Staton in his official capacity will be
dismissed without prejudice.
IV. CONCLUSION
In sum, the Complaint fails initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). The
claims against Joker are dismissed with prejudice and the remaining claims are dismissed without
prejudice.
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The Court will allow the Plaintiff thirty (30) days to amend his Complaint, if he so chooses,
to correct the deficiencies identified in this Order and to otherwise properly state a claim upon
which relief can be granted. Any Amended Complaint will be subject to all timeliness and
procedural requirements and will supersede his previous filings. Piecemeal amendment will not
be allowed. Should Plaintiff fail to timely file an Amended Complaint in accordance with this
Order, this action will be dismissed without prejudice and without further notice to Plaintiff.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Complaint [Doc. 1] fails initial review pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-
(ii)
2. The claims against Joker are DISMISSED WITH PREJUDICE.
3. The remaining claims are DISMISSED WITHOUT PREJUDICE.
4. The Plaintiff shall have thirty (30) days in which to amend his Complaint in
accordance with the terms of this Order. If Plaintiff fails to file an Amended
Complaint in accordance with this Order and within the time limit set by the Court,
this action will be dismissed without prejudice and without further notice to Plaintiff.
The Clerk is respectfully instructed to mail a blank § 1983 prisoner complaint form and a
copy of this Order to the Plaintiff at his address of record as well as to: Brian Mark Smith, 1663691,
Avery-Mitchell Correctional Institution, PO Box 247, Phoenix, MD 21131.
IT IS SO ORDERED.
Signed: April 16, 2024
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