UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION 5:20-cv-00067-MR

THOMAS DAVID HUGHES, ) ) Plaintiff, ) ) vs. ) ORDER ) CHRISTOPHER WARD, et al., ) ) Defendants. ) ________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint [Doc. 1], filed under

. See

(e) and 1915A. Also pending before the Court are Plaintiff’s Motion for Court Appointed Counsel [Doc. 9] and Plaintiff’s Motion to Appoint U.S. Marshal to Serve Summons [Doc. 10]. Plaintiff is proceeding in forma pauperis. [Docs. 2, 8]. I. BACKGROUND Pro se Plaintiff Thomas David Hughes (“Plaintiff”) is a prisoner of the State of North Carolina currently incarcerated at Central Prison in Raleigh, North Carolina. He filed this action on May 26, 2020, pursuant to

, naming as Defendants Christopher Ward and FNU Fox, both identified as Sheriff’s Deputies with the Watauga County Sheriff’s Office. [Doc. 1 at 3]. Plaintiff alleges that, on March 19, 2010 at approximately 7:00 to 8:30 p.m., Plaintiff was a pre-trial detainee at the Watauga County

Detention Center and in the process of being wrongfully transferred to Central Prison. [Doc. 1-1 at 1]. Plaintiff claims that, after he demanded to see the safekeeping order supporting his transfer and for Defendants to

identify themselves by first name, Defendants gratuitously beat him as more specifically described in the Complaint. Plaintiff claims that Defendants’ conduct constituted a violation of his rights under the Fifth, Eighth and Fourteenth Amendments. [Doc. 1-1 at 2]. Plaintiff sues them in their

individual and official capacities. For injuries, Plaintiff claims that he suffered physical and psychological harm as a result of Defendants’ conduct. [Id. at 2-3]. Plaintiff seeks

monetary damages. [Id. at 4]. 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.”

(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. 28 U.S.C. § 1915A.

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,

(1989). Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner,

(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.,

(4th Cir. 1990). III. DISCUSSION

“To state a claim under

, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show that the deprivation of that right was committed by a person acting under color of state law.” West v. Atkins,

(1988).

Here, Plaintiff claims that his rights under the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution were violated by Defendants. The Eighth Amendment prohibits the infliction of “cruel and

unusual punishments,” U.S. Const. amend. VIII, and protects prisoners from the “unnecessary and wanton infliction of pain,” Whitley v. Albers,

(1986). Because Plaintiff was a pretrial detainee, however, his

excessive force claim is properly brought under the Fourteenth Amendment, rather than the Eighth Amendment. See Kingsley v. Hendrickson,

(2015) (holding that the test for excessive force claims

brought by pretrial detainees under the Fourteenth Amendment differs from the test for excessive force claims brought by convicted prisoners under the Eighth Amendment). Under the Fourteenth Amendment, a pretrial detainee must show only that the force purposely or knowingly used against him was

objectively unreasonable in order to demonstrate that it was excessive in violation of the Fourteenth Amendment’s Due Process Clause.

. Taking Plaintiff’s allegations as true and giving Plaintiff the benefit of

every reasonable inference, he has stated a claim against Defendants Ward and Fox in their individual capacities only based on the use of excessive force. See Monell v. New York City Dept. of Social Services,

,

(1978) (holding that in an official capacity suit,

the entity’s “policy or custom” must have played a part in the violation of federal law); Oklahoma City v. Tuttle,

,

(1985) (discussing same). The claims against Defendants in their

official capacities, therefore, will be dismissed. Plaintiff, however, fails to allege any facts in support of a claim for violation of the Fifth Amendment. The Court, therefore, will dismiss Plaintiff’s

claim under the Fifth Amendment. IV. MOTION FOR APPOINTMENT OF COUNSEL In support of his motion to appoint counsel, Plaintiff states, among

other things, that he does not have access to a law library; that he “requires extensive documentary discovery” and access to witnesses; that his incarcerated status “hinders [his] ability to investigate the facts;” and that he “has reasons to expect the facts to be strongly disputed by the defense

counsel.” [Doc. 9]. A plaintiff must present “exceptional circumstances” in order to require the Court to seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons,

(4th Cir. 1987). The Plaintiff here has not presented exceptional circumstances that justify appointment of counsel. Therefore, Plaintiff’s motion to appoint counsel will be denied. V. MOTION FOR SERVICE BY U.S. MARSHAL

Plaintiff also moves pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure for the Court to appoint a U.S. Marshal “to serve summons to Christopher Ward and Logan Fox.” [Doc. 10]. Plaintiff’s motion is both

premature and unnecessary. Plaintiff filed the motion before his Complaint survived initial review. It is, therefore, premature for Plaintiff to request assistance with service. Furthermore, given the Court’s Order on initial

review allowing certain claims to proceed against Defendants Ward and Fox, the Court orders the Clerk to direct the U.S. Marshal to effectuate service on Defendants once Plaintiff has supplied the necessary information, in any

event. The Court will therefore deny Plaintiff’s motion without prejudice. VI. CONCLUSION For the foregoing reasons, the Court concludes that the Plaintiff’s claims against Defendants Ward and Fox in their individual capacities based

on the use of excessive force under the Eighth and Fourteenth Amendment survives initial review. Plaintiff’s claim based on violation of the Fifth Amendment will be dismissed.

(e) and 1915A.

ORDER IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint [Doc. 1] survives initial review as to Plaintiff’s claims against Defendants in their individual capacities based on violations of the Eighth and Fourteenth

Amendments. Plaintiff’s claims based on violation of the Fifth Amendment and Plaintiff’s claims against Defendants in their official capacities are hereby dismissed. IT IS FURTHER ORDERED that Plaintiff's Motion to Appoint Counsel [Doc. 9] is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Appoint US Marshal to Serve Summons [Doc. 10] is DENIED WITHOUT PREJUDICE. The Clerk of Court is instructed to mail two (2) blank summonses to Plaintiff to fill out and identify Defendants Christopher Ward and FNU Fox for service of process, and then return the summonses to the Court. Plaintiff is required to provide the necessary information for the U.S. Marshal to effectuate service on Defendants. As the Court receives the summonses from Plaintiff, the Clerk shall direct the U.S. Marshal to effectuate service

upon Defendants. IT IS SO ORDERED.

Signed: August 19, 2020

Martifi Reidinger ee Chief United States District Judge AS