Sisk v. Holden

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION 1:18-cv-00366-FDW

JAMES DARIN SISK, ) ) Plaintiff, ) ) vs. ) ORDER ) KEVIN HOLDEN, et al., ) ) Defendants. ) _________________________________________ )

THIS MATTER is before the Court on periodic status review and Plaintiff’s Amended Complaint [Doc. 9]. On December 20, 2018, pro se Plaintiff James Darin Sisk (“Plaintiff”) filed suit under 42 U.S.C. § 1983 against Defendants Kevin Holden, identified as a Lieutenant in the Transylvania County Sheriff’s Department, and the Transylvania County Sheriff’s Department. [Doc. 1]. Plaintiff claims that Defendants violated his constitutional right not to be subjected to cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. [Id.]. Plaintiff’s Complaint survived initial review as to Defendant Holden, but the Court ordered Plaintiff to file an Amended Complaint to clarify the relief sought as well as certain allegations Plaintiff made regarding his injuries. [Doc. 8]. On September 23, 2019, Plaintiff filed an Amended Complaint in accordance with the Court’s Order. In his Amended Complaint, Plaintiff also seeks to add two additional Defendants in this matter: Jimmy Harris, identified as the Mayor of Transylvania County; and (2) Joshua Laughter, identified as a Sergeant with the Transylvania Sheriffs Department. As to Defendant Laughter, Plaintiff alleges he was directly involved in the alleged assault on the Plaintiff that is the subject of Plaintiffs original Complaint. [See Doc. 9-1 at 1-3]. Plaintiff makes no allegations against Defendant Harris and attempts to sue him solely in his official capacity as Mayor. [See id.]. For a government official to be held liable under Section 1983 in his individual capacity, the plaintiff must demonstrate that the defendant personally participated in the alleged denial of rights. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S Ct. 1937 (2009); see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 n.7 (1978). Plaintiff, here, has made no allegations of personal participation against Defendant Harris. The Court will, therefore, dismiss Defendant Harris. IT IS, THEREFORE, ORDERED that: (1) The Plaintiff's claim against Defendant Jimmy Harris shall be dismissed and Defendant Harris shall be terminated as a Defendant in this matter. See 28 U.S.C. $§ 1915(e); 1915A. (2) The Clerk is directed to mail summons forms to Plaintiff for Plaintiff to fill out and identify Defendants Holden and Laughter in the summonses 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. Once the Court receives summonses from Plaintiff, the Clerk shall then direct the U.S. Marshal to effectuate service upon Defendants.

Signed: November 14, 2019

Frank D. Whitney □□ Chief United States District Judge ~“»*"