UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6480

CHRISTOPHER LEE MICHELSON,

Plaintiff - Appellant,

v.

STEPHEN COON, Asheville Police Dept. Detective,

Defendant - Appellee,

and

VAN DUNCAN; MARK GAGE, ATF Agent; RON MOORE, Buncombe County 

District Attorney; ROGER THEODORE SMITH, Buncombe County Attorney at 

Law; MIKE LAMB, Asheville Police Dept. Sergeant,

Defendants.

Appeal from the United States District Court for the Western District of North Carolina, at 

Asheville. Frank D. Whitney, District Judge. (1:17-cv-00050-FDW)

Submitted: March 1, 2021 Decided: July 15, 2021

Before GREGORY, Chief Judge, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.
2

Christopher Lee Michelson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Christopher Lee Michelson appeals the district court’s orders dismissing his 42 

U.S.C. § 1983 complaint for lack of subject matter jurisdiction and denying 

reconsideration. Michelson, a pretrial detainee in state custody, initially filed a complaint 

against Buncombe County Sherriff Van Duncan; Asheville Police Detective Stephen Coon; 

Special Agent Mark Gage of the Bureau of Alcohol, Tobacco, and Firearms; Buncombe 

County District Attorney Ron Moore; and Roger Smith, an attorney. In the complaint, 

Michelson alleged that Duncan had allowed Michelson to be housed in a facility in which 

a deputy was employed who was a relative of an enemy of Michelson’s. Michelson alleged 

that he informed Coon and Gage that his life was in danger due to this threat, but he was 

not moved to another facility or placed in protective custody, and in March 2016, 

Michelson was beaten unconscious by an inmate acting on orders of this deputy. 

Pursuant to 28 U.S.C. § 1915A, the district court dismissed the initial complaint 

without prejudice. As is relevant here, the court concluded that Michelson had failed to 

state an Eighth Amendment claim for failure to protect against Gage1 and Coon because 

they had no responsibility for Michelson’s housing within the Buncombe County Jail 

because that was the “exclusive province of Van Duncan,” the Sheriff of Buncombe 

County. The court, however, dismissed the claims against not only Gage and Coon, but 

also against Duncan. Michelson thereafter amended his complaint, but only reasserted 

1 Because Gage is a federal agent, any claim asserted against him could only be 

properly considered as arising under Bivens v. Six Unknown Named Agents of Fed. Bureau 

of Narcotics, 403 U.S. 388 (1971). 
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claims against Gage and Coon and added Asheville Police Sergeant Mike Lamb as a 

defendant. 

Despite its prior ruling that Gage and Coon had no responsibility for Michelson’s 

housing in the jail, on review under § 1915A, the district court allowed the claims to 

proceed, concluding that Michelson had pled a deliberate indifference claim against Gage 

and Coon that was “facially sufficient.” Coon and Lamb filed an answer to the complaint 

that asserted that the complaint should be dismissed for failure to state a claim for relief 

but did not file a separate motion to dismiss or memorandum of law in support of this 

request. Gage filed a motion to dismiss the claims against him, which the court granted, 

finding that no cause of action under Bivens could properly be implied in this context.2

 In 

addition, Michelson later voluntarily dismissed his claims against Lamb. 

Shortly after the district court set a date for trial, and more than a year after the 

district court’s deadline for filing dispositive motions, Coon filed a motion to dismiss the 

complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil 

Procedure 12(b)(1). In his motion Coon asserted that, as the district court had found in its 

initial motion dismissing the complaint without prejudice, Coon had no authority over 

Michelson’s housing in the jail. The district court granted Coon’s motion, finding that 

2 While Michelson argues on appeal that Coon and Gage are liable for failing to 

protect him in the jail, he fails to challenge the district court’s conclusion that there is no 

valid cause of action under Bivens to hold Gage liable on this claim. He has therefore 

forfeited appellate review of that issue. See 4th Cir. R. 34(b); see also Jackson v. Lightsey, 

775 F.3d 170, 176 (4th Cir. 2014) (“The informal brief is an important document; under 

Fourth Circuit rules, our review is limited to issues preserved in that brief.”). 
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since Coon did not have any responsibility for housing Michelson in the Buncombe County 

Jail, he could not “be liable for failure to protect a detainee” and the court therefore lacked 

subject matter jurisdiction over Michelson’s claim. Michelson sought reconsideration 

under Federal Rule of Civil Procedure 59(e), which the court denied. Michelson appeals.

Initially, we conclude that the district court erred in dismissing Michelson’s claim 

against Coon for lack of subject matter jurisdiction. Pursuant to Rule 12(b)(1), a court may 

dismiss a complaint if it lacks subject matter jurisdiction; a motion to dismiss a complaint 

asserting that the complaint fails to state a claim upon which relief may be granted, 

however, must be brought under Federal Rule of Civil Procedure 12(b)(6). Courts have 

“been less than meticulous” in differentiating between motions to dismiss for lack of 

subject matter jurisdiction and those based on failure to state a claim. Arbaugh v. Y & H 

Corp., 546 U.S. 500, 511 (2006). “[S]ubject matter jurisdiction involves a court’s power 

to hear a case, can never be forfeited or waived,” and requires dismissal of a complaint in 

its entirety when it is lacking. Id. at 514 (internal quotation marks omitted). A plaintiff 

properly invokes a district court’s federal question jurisdiction under 28 U.S.C. § 1331

when he “pleads a colorable claim arising under the Constitution or laws of the United 

States.” Id. at 513 (internal quotation marks omitted). 

We have cautioned against “blurr[ing] the fundamental difference between a Rule 

12(b)(1) motion for lack of subject matter jurisdiction and a Rule 12(b)(6) motion for 

failure to state a claim”; the former involves the plaintiff’s right to be in federal court and 

the court’s power to adjudicate his claim while the latter addresses only whether the 

plaintiff has stated a cognizable claim for relief. Holloway v. Pagan River Dockside 
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Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). “Deficiencies in the statement of a federal 

cause of action should normally be addressed by a motion under rules challenging the 

sufficiency of the complaint.” Id. Where “the plaintiff’s claim is determined by 

application of a federal law over which Congress has given the federal courts jurisdiction,” 

the “complaint should not be dismissed for lack of subject matter jurisdiction, as the federal 

courts have been given the power and authority to hear and resolve such claims.” Id. 

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured 

by the Constitution and laws of the United States, and must show that the alleged 

deprivation was committed by a person acting under color of state law.” West v. Atkins, 

487 U.S. 42, 48 (1988); see Davison v. Randall, 912 F.3d 666, 679 (4th Cir. 2019). 

“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other 

prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). For convicted prisoners, the 

right to be protected from violence falls under the Eighth Amendment guarantee against 

cruel and unusual punishment, id. at 828; however, because a state has no authority to 

punish pretrial detainees at all, the right of a pretrial detainee to be protected from violence 

while incarcerated falls under the Due Process Clause of the Fourteenth Amendment. See 

Kingsley v. Hendrickson, 576 U.S. 389, 400-01 (2015). 

Here, Michelson sought to invoke the Fourteenth Amendment’s protections against 

violence by other prisoners or detainees, based upon an incident in which he was allegedly 

beaten unconscious by another inmate while in the Buncombe County Jail. While the 

district court dismissed this claim against Coon because Coon had no authority over 

Michelson’s housing in the jail, it can hardly be asserted that Michelson’s claim was “not 
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colorable, or [was] made solely for the purpose of obtaining jurisdiction, or [was] so wholly 

insubstantial and frivolous that an invocation of federal jurisdiction should not be 

recognized.” Holloway, 669 F.3d at 453. Michelson’s claim against Coon might not 

properly state a claim for relief but his claim is properly “determined by application of a 

federal law,” id. at 452, and therefore the district court did not lack jurisdiction over this 

claim. 

In cases where a defendant moves for dismissal under both Rule 12(b)(1) and 

12(b)(6) and the district court dismisses for lack of subject matter jurisdiction, we can 

address the merits of the Rule 12(b)(6) analysis if we determine that the district court’s 

jurisdictional ruling was erroneous. See Hawes v. Network Sols., Inc., 337 F.3d 377, 383 

(4th Cir. 2003). As noted above, a pretrial detainee’s claim for failure to protect arises 

under the Fourteenth Amendment, rather than the Eighth Amendment. See Kingsley, 576 

U.S. at 400-01. Generally, a prisoner asserting a claim for failure to protect must prove 

that he was “incarcerated under conditions posing a substantial risk of serious harm, 

Farmer, 511 U.S at 833, and that the prison official knew of and disregarded the risk, id.

at 838. In Kingsley, however, the Supreme Court held that a pretrial detainee bringing an 

excessive force claim must prove that the prison official’s actions were objectively 

unreasonable but need not prove that the official acted with a subjectively culpable state of 

mind. 576 U.S. at 396-97. Some other circuits to have examined failure to protect claims

following Kingsley have determined that this standard for excessive force claims extends 

to failure to protect claims under the Fourteenth Amendment. See Castro v. County of Los 

Angeles, 833 F.3d 1060, 1069-71 (9th Cir. 2016) (finding Kingsley’s purely objective 
8

standard for excessive force claims extends to failure to protect claims by pretrial 

detainees); see also Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (same). We need 

not resolve this issue here because, even if a purely objective standard applies to a pretrial 

detainee’s failure to protect claim, Michelson failed to state such a claim against Coon.

Under North Carolina law, “[a]ll persons committed to prison before conviction 

shall be committed to the jail of the county in which the examination is had, or to that of 

the county in which the offense is charged to have been committed,” unless the committing 

magistrate determines that the jails of the county are unsafe or injurious to a prisoner’s 

health, in which case the magistrate may commit a prisoner to the jail of “any other 

convenient county.” N.C. Stat. Ann. 15-126 (2019). Thereafter, “every sheriff or jailer to 

whose jail any person shall be committed by any court or magistrate of competent 

jurisdiction shall receive such prisoner and give receipt for him, and be bound for his 

safekeeping as prescribed by law.” Id.; see N.C. Stat. Ann. § 162-22 (2019) (“The sheriff 

shall have custody and care of the jail in his county.”). Therefore, “[s]heriffs run the county 

jails in North Carolina.” Knight v. Vernon, 214 F.3d 544, 545 (4th Cir 2000). 

Here, the actions of which Michelson complains that caused his injury were the 

decision to place him in the same jail as that which employed a relative of his enemy and 

the decision to leave him there without placing him in protective segregation or moving 

him to another facility. Coon, however, was not the official responsible for either of those 

decisions. Under state law, the magistrate who committed Michelson decided whether to 

place him in the jail in that county or in another facility based on risk to him, and, once he 

was in the jail, the sheriff was responsible for his placement. No state action or omission 
9

on the part of Coon, a police officer in a neighboring jurisdiction, therefore, caused 

Michelson’s injury. See Davison, 912 F.3d at 679 (“The traditional definition of acting 

under color of state law requires that the defendant in a § 1983 action have exercised power 

possessed by virtue of state law and made possible only because the wrongdoer is clothed 

with the authority of state law.” (internal quotation marks omitted)). Nor did Coon 

intentionally place Michelson in the unsafe conditions or fail to act with reasonable care to 

mitigate the risk in those conditions, as Coon had no authority over Michelson’s placement 

in the jail. See Castro, 833 F.3d at 1071 (stating standard for failure to protect claim under 

Fourteenth Amendment after Kingsley); see also Darnell, 849 F.3d at 35 (same). 

Accordingly, while we conclude that the district court had jurisdiction over 

Michelson’s claim, we further conclude that he failed to state a claim for relief for failure 

to protect against the remaining defendants. We therefore affirm the district court’s orders. 

We also deny Michelson’s motions for “jurisdictional matter” and for a transfer to another 

facility. We dispense with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and argument would not aid the 

decisional process.

AFFIRMED