UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6768
JONATHAN LEIGH HENSLEE,
Plaintiff - Appellant,
versus
LIEUTENANT LEWIS, Lieutenant of Rutherford
County Jail; MR. YOUNG, Correctional Officer
at Rutherford County Jail; TINA, Correctional
Officer at Rutherford County Jail,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Graham C. Mullen, Chief
District Judge. (CA-04-152)
Submitted: September 26, 2005 Decided: November 3, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Jonathan Leigh Henslee, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Leigh Henslee filed a 42 U.S.C. § 1983 (2000)
complaint charging that employees at the Rutherford County Jail
violated his constitutional rights. Specifically, Henslee claimed
that he was placed in restraints for two weeks under unsanitary
conditions and without a mattress or covers. He also asserted that
one employee encouraged inmates to attack him. Henslee sought
damages and a reduction in his sentence. The district court denied
relief under 28 U.S.C. § 1915A (2000), finding that Henslee failed
to state a claim. Henslee timely appealed.
Under § 1915A, the district court is required to review
any “complaint in a civil action in which a prisoner seeks redress
from a governmental entity . . . [and] identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the
complaint . . . fails to state a claim upon which relief may be
granted . . . .” This court “reviews dismissals for failure to
state a claim de novo.” Veney v. Wyche, 293 F.3d 726, 730 (4th
Cir. 2002). A court should not dismiss a complaint for failure to
state a claim “unless after accepting all well-pleaded allegations
in the plaintiff’s complaint as true and drawing all reasonable
factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief.” Id. (internal
marks and citation omitted). Moreover, when such a dismissal
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involves a civil rights complaint, a court “must be especially
solicitous of the wrongs alleged and must not dismiss the complaint
unless it appears to a certainty that the plaintiff would not be
entitled to relief under any legal theory which might plausibly be
suggested by the facts alleged.” Id. (internal quotation marks
and citation omitted).
As the district court correctly noted, Henslee’s
complaint failed to allege any injury from being held in restraints
for two weeks in unsanitary conditions. However, liberally
construing Henslee’s discovery request, Gordon v. Leake, 574 F.2d
1147, 1151 (4th Cir. 1978), he asserted that he sustained an elbow
injury requiring surgery as a result of being in restraints.
Accordingly, we find that dismissal of this claim under § 1915A was
premature and that Henslee should have been afforded an opportunity
to particularize his complaint.* Accordingly, we vacate the
portion of the district court’s order dismissing this claim and
remand for further proceedings consistent with this opinion.
As to Henslee’s claim that a jail employee incited other
inmates to attack him, Henslee did not contend that any inmates in
fact attacked him. Mere threats or verbal abuse by prison
officials, without more, do not state a cognizable claim under
*
The district court noted that Henslee failed to provide dates
for the alleged incidents and therefore it was not possible to
determine whether his complaint was filed within the applicable
statute of limitations. Upon remand, the district court will be
able to direct Henslee to provide this information.
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§ 1983. Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979). We
therefore affirm the district court’s dismissal of this portion of
Henslee’s complaint.
In light of the remand, we decline to address Henslee’s
challenge to the district court’s denial of his requests for
discovery and appointment of counsel. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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