COOK v. BOYD BENNETT, ET AL.,

Filing 51

MEMORANDUM OPINION, ORDER and RECOMMENDATION of MAGISTRATE JUDGE ELIASON signed on 11/19/2008 that Defendants' motion to dismiss (Docket No. 39 ) be granted as to Plaintiff's due process claims and his equal protection claim based on the p olicies of the North Carolina Department of Corrections, that the motion to dismiss be denied as to Plaintiff's equal protection claim based on Defendants Pierce and Pitts' applications of those policies which are alleged to deny Plaintiff custody reviews that are granted to prisoners in other regions of North Carolina. (Lee, Lisa)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHRISTOPHER EUGENE COOK,

) ) Plaintiff, ) ) v. ) ) MR. BOYD BENNETT, MR. JAMES PIERCE,) and, MS. DENE PITTS, ) ) Defendants. )

1:07CV31

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF MAGISTRATE JUDGE ELIASON Plaintiff, a prisoner of the State of North Carolina, seeks relief pursuant to 42 U.S.C. § 1983. The facts in the case, as set Beginning in October of

out in the complaint, are as follows.

1994, and continuing through the present, Plaintiff has been incarcerated in the North Carolina prison system serving a "Class C" life sentence for second-degree murder. type of sentence are eligible for Persons serving this after ten years.

parole

Plaintiff states that he has been parole eligible since January of 2005. However, he has been denied parole at his three annual

parole hearings. Although the denials of parole are the root cause of this lawsuit, Plaintiff's allegations are more complex. According to Plaintiff, North Carolina parole guidelines

strongly discourage, but do not forbid, paroling a prisoner who is housed in a medium security facility. a facility. Plaintiff is housed in such

Therefore, in order to have a meaningful chance to be

paroled, Plaintiff contends he will have to first spend time incarcerated in a minimum security facility. He is eligible for a

transfer to a minimum security prison, but has thus far been unsuccessful in being promoted to one. Plaintiff states that North Carolina prison regulations A

require that a custody review be conducted every six months.

full review which results in a promotion in custody level consists of six levels. The first four levels take place in the prison They involve reviews from a case

where the prisoner is housed.

manager, a unit manager, a facility classification committee, and, finally, a prison administrator. In this case, that administrator is alleged to be Defendant Dene Pitts. If the prison administrator does not recommend a

promotion in custody level, the review ends at that point and never proceeds to the fifth and sixth levels. On the other hand, if a

promotion is recommended, the review must then proceed for a divisional review at the North Carolina Department of Correction (NCDOC) headquarters. The sixth level of review is then conducted In this case, that person is Defendant

by a Regional Director. James Pierce. for the

Defendant Boyd Bennett is the Director of Prisons He is alleged only to have control of the

NCDOC.

promulgation of regulations controlling the process just described, as opposed to being part of any actual review. Plaintiff alleges that he has been eligible for promotion to minimum custody since April of 2000. His bi-annual reviews are He also

conducted on April 1st and October 1st of each year.

alleges that he has an excellent record in prison, having incurred only one infraction, paid off $3,403.00 in restitution, and scored -2-

"low risk" on a risk assessment test.

Apparently based on these

things, Defendant Pitts approved Plaintiff for a promotion to minimum custody during his first custody review on April 1, 2005. Plaintiff does not state what occurred at the divisional review, but apparently his promotion was also approved there. The review

was then passed on to Defendant Pierce who denied the promotion. He did so while stating that Plaintiff needed further observation and had not served enough time on his life sentence. At the next three custody reviews, conducted on October 1, 2005, April 1, 2005, and October 1, 2006, Plaintiff was not approved for promotion to minimum custody by Defendant Pitts. This was despite the fact that he incurred no new infractions during this time-period. Plaintiff alleges that the reason behind

Defendant Pitts' change in her recommendation is that Defendant Pierce has a personal policy under which he refuses to provide full minimum custody reviews more than every 24 months. Plaintiff

complains that this is contrary to the bi-annual reviews required by the NCDOC's regulations. He alleges that in other regions of

the State, inmates serving Class C life sentences do receive meaningful custody reviews every six months. He also claims that

once they are approved for minimum custody at the facility level, this recommendation does not change unless they receive a

subsequent infraction. Claims Based on the facts alleged in the complaint, Plaintiff raises three claims for relief. First, he contends that he has a liberty -3-

interest in promotion to minimum custody and that this interest is protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. promulgation and application of Second, he asserts that the the policies governing the

promotion of felons to different custody levels subject him to arbitrary and personal judgments made by prison authorities. He

argues that this also violates his due process rights, as well as his equal protection rights, because a liberty interest is

involved.

Finally, he alleges that Defendant Pierce's refusal to

abide by NCDOC policy and provide him with meaningful bi-annual custody reviews violates his due process and equal protection rights. Plaintiff seeks only declaratory and injunctive relief. Discussion There are two pending motions in the case: dismiss by Defendants Turning and a to motion the for a motion to filed it by is

sanctions to

Plaintiff.

first

motion

dismiss,

denominated as one brought pursuant to Fed. R. Civ. P. 12(b)(6). As Plaintiff correctly points out, a motion made under that

subsection must be filed "before pleading if a responsive pleading is allowed." this case. Fed. R. Civ. P. 12(b). Defendants did not do that in

They filed an answer to the complaint on June 20, 2007.

Then, on July 2, 2007, and without explanation, they filed an amended answer. The motion to dismiss was filed months later on However, as Plaintiff also correctly points

February 18, 2008.

out, there is a solution to this problem, which is to treat the

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motion as one filed under Fed. R. Civ. P. 12(c) for judgment on the pleadings. The Court will so construe the motion.

Defendants' first ground in support of the motion to dismiss is that Plaintiff has failed to state a claim upon which relief may be granted. The memorandum supporting the motion begins the

argument by citing the standards for dismissal in the courts of North Carolina. Because Plaintiff's claims are filed in federal

court and based on federal law, it is not clear why the standards cited would control here. Defendants cite no authority showing

that they would. Nor have Defendants offered case law showing that the North Carolina standards for dismissal are identical to the federal standards so that the Court could follow the standards cited. It is expected that this will not be repeated by counsel in

the future. In any event, the motion to dismiss cannot succeed. The Court must assume that the allegations in the complaint are true and construe them in the light most favorable to plaintiff. Giarratano v. Johnson, 521 F.3d 298, 302 & 304 (4th Cir. 2008).1 However, the

The facts used to decide the motion to dismiss will be those set out in t h e complaint. Defendants include in their brief supporting the motion to d i s m i s s a section describing "Defendants' Evidence." This section of the brief c o n t a i n s no citations to any evidence in the record. The Court is also not aware t h a t Defendants have submitted any admissible evidence such as deposition t e s t i m o n y or affidavits. Further, if any evidence had been submitted, the motion t o dismiss would have had to be converted to one for summary judgment in order t o allow the evidence to be considered. Fed. R. Civ. P. 12(d). This would have n e c e s s i t a t e d allowing Plaintiff to conduct discovery, a process Defendants have t a k e n steps to deny him. This will be discussed more later. Because of the m u l t i p l e deficiencies in Defendants' insertion of "evidence" into their brief, t h e i r allegations will not be considered to any extent they do not match what is a l l e g e d in the complaint.

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Court does not have to accept as true legal conclusions stated as facts. Further, "[f]actual allegations must be enough to raise a

right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct.

1955, 1965 (2007)(citation and footnote omitted). The due process components of Plaintiff's claims turn on his assertion that he has a liberty interest in promotion to minimum custody. He bases this on the fact that he must be promoted to

minimum custody in order to have a realistic chance at being paroled. Plaintiff argues that the discretionary policies of the

NCDOC regarding promotion, in conjunction with Pierce and Pitts' application of those policies, are improperly denying him that liberty interest.2 Unfortunately for Plaintiff, the case law is not in his favor on this point. points. The parties rely on different cases to press their

Defendants cite to the case of Sandin v. Conner, 515 U.S. That case dealt not with prisoners' general custody

472 (1995).

levels, but with a punitive assignment to segregated confinement. It held that no liberty interest was implicated, and hence the Due Process Clause did not come into play, where the disciplinary confinement did not "present a dramatic departure from the basic conditions of [the prisoner's] indeterminate sentence." 485. Id. at

However, it explicitly left an open question regarding a

It would seem that if Pierce and Pitt are violating state law, Plaintiff s h o u l d bring the matter to the attention of the state courts.

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situation where a finding of misconduct would "inevitably affect the duration of [a prisoner's] sentence." Id. at 487. It did

state that a prisoner could not invoke the Due Process Clause where there was only a "chance" that discipline would eventually affect his parole. Id.

Plaintiff cites the more recent case of Wilkinson v. Austin, 545 U.S. 209 (2005). There, the United States Supreme Court held

that the Due Process Clause was implicated by the decision to house a prisoner in a "Supermax" facility. It based this holding on the

fact that the harsh conditions in that facility did constitute the type of "`atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life'" that raised a liberty interest and due process concerns. Sandin, 515 U.S. at 484). conclusion were the Id. at 223(quoting

Among the factors noted in reaching this conditions of confinement, the

physical

separation from human contact, the lack of environmental or sensory stimuli, the fact that the Supermax placements were for an

indefinite period of time, and the fact that parole eligibility was lost while a prisoner was housed in the Supermax facility. 214-15. Id. at

Thus, while parole eligibility was mentioned as a factor

in the decision, it was only one of several. The problem with applying both Sandin and Wilkinson to the present case is that Plaintiff is not alleging that he is being confined in a medium security prison as punishment for some misdeed other than his original crime. He is also not being placed in He is merely assigned to a

segregation or a Supermax facility. -7-

medium security facility and such a facility is part of normal prison life. Were his custody level really the issue in the case, Meachum v. to maximum

he would clearly have no liberty interest at stake. Fano, 427 U.S. 215, 225 (1976)(transfer from low

security facility is within normal limits of confinement). Plaintiff instead claims that his liberty interest in being placed in a minimum security facility arises because it affects his ability to be paroled. He alleges that he has no meaningful chance

at parole as long as he is confined in a medium security facility. Sandin and Wilkinson both touch on this issue, but do not

definitively answer it.

Instead, taken together, they really only

stand for the propositions that parole eligibility is a factor to be considered in prison discipline due process cases and that absolute denial of parole as part of discipline makes it more likely that a liberty interest will arise, while discipline causing only a "chance" of parole denial is less likely to create a liberty interest. They do not address whether or not a liberty interest

can arise from a nonpunitive custody assignment where the custody level will affect parole. The answer to that last question is best found by determining whether Plaintiff has a liberty interest in parole. If he does, it

might follow that he would then have a liberty interest in factors

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affecting parole.3

If he does not, then he has no liberty interest

onto which he can bootstrap a custody level argument. The United States Court of Appeals for the Fourth Circuit has addressed the issue of whether a prisoner has a liberty interest in parole by explaining that: "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). This is because "given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty." Id. at 7, 99 S.Ct. at 2104, quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The absence of a constitutional right to parole means that a state has no duty to establish a system of parole, id., and if it chooses to do so, federal courts should allow a state's parole authorities "a wide range for experimentation and the exercise of discretion." Franklin v. Shields, 569 F.2d 784, 800 (4th Cir.1977) (en banc), cert. denied, 435 U.S. 1003, 98 S.Ct. 1659, 56 L.Ed.2d 92 (1978). "Moreover, to insure that the state-created parole system serves the public-interest purposes of rehabilitation and deterrence, the state may be specific or general in defining the conditions for release and the factors that should be considered by the parole authority." Greenholtz, 442 U.S. at 7-8, 99 S.Ct. at 2104. Vann v. Angelone, 73 F.3d 519, 521 (4th Cir. 1996).

It is worth noting that there is only the possibility that a liberty i n t e r e s t in a prisoner's custody level could arise from a liberty interest in p a r o l e . Neither party has cited a case addressing this point and the Court is n o t deciding this issue. If such an interest can exist, it would likely only be p r e s e n t in a situation similar to that in Wilkinson where the custody c l a s s i f i c a t i o n absolutely precludes parole. It is much more doubtful that a l i b e r t y interest could arise where, as here, a custody classification arguably l e s s e n s the chance of parole but does not eliminate eligibility entirely. As n o t e d earlier, Plaintiff argues only that North Carolina parole guidelines d i s c o u r a g e parole from a medium security facility. They do not forbid it.

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This is not to say that there can never be a liberty interest in parole. statutes. There certainly can be where one is created by state Greenholtz v. Inmates of the Nebraska Penal and

Correctional Complex et al., 442 U.S. 1 (1979).

However, even

where this occurs, the amount of due process required is minimal. The Fourth Circuit requires only that authorities must "`furnish to the prisoner a statement of its reasons for denial of parole.'" Vann, 73 F.3d at 522 (quoting Franklin v. Shields, 569 F.2d 784, 801 (4th Cir. 1977)). Here, Plaintiff has not alleged or shown that state statutes create a liberty interest in parole. sake of argument that he has a But even assuming for the interest in parole

liberty

consideration and that this could be extrapolated to give him a liberty interest in promotion to minimum custody4, his due process rights were still not violated. This is because Plaintiff was

provided with a statement of the reasons why his parole was denied. He was also given a statement of the reasons why his promotion to minimum custody was denied. Although he may not agree with those

reasons, his due process rights were satisfied because he could not be entitled to more due process for the custody decision than for a parole decision. Plaintiff cannot prevail on his due process Defendants'

claims given the facts set out in his complaint.

motion to dismiss Plaintiff's due process claims should be granted.

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Again, this issue does not need to be decided.

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Defendants' second ground for dismissal pertains only to Defendant Bennett. They contend that he should be dismissed

because he is only a supervisor and the doctrine of respondeat superior does not apply in cases brought under § 1983. this argument would appear alleges to have no by merit given Although that the in

complaint

clearly

actions

Bennett

himself

promulgating the challenged policies and regulations, the issue is really moot. with All allegations pertaining to Bennett are connected due process will claims, be not Plaintiff's next. equal

Plaintiff's claims

protection

which

discussed

Therefore,

dismissal of the due process claims will end all claims against Defendant Bennett. Defendants' respondeat superior argument does

not need to be addressed further. Turning now to Plaintiff's equal protection claims,

Defendants' brief does not address them.

The reason for this is

not apparent, but the failure to address them means that only minimal discussion is required at this point. Plaintiff mentions The first of

equal protection twice in his claims for relief.

these claims that his equal protection rights were somehow violated by NCDOC's policies and regulations governing the promotion of felons in the prison system. However, this is not possible.

Whatever Plaintiff may think of the policies, they apply to all felons in the state. He would not be treated differently from Therefore, he cannot state a claim Giarratano v.

other felons by the policies.

for relief based on the faces of the policies.

Johnson, 521 F.3d 298 (4th Cir. 2008)(the Equal Protection Clause -11-

requires alike).

only

that

similarly-situated

individuals

be

treated

Plaintiff's second equal protection allegation is a different matter because it is based on the application of the policies. Plaintiff contends that Defendant Pierce has a personal policy which ignores or alters the NCDOC policies and only gives him a meaningful custody review very two years, instead of every six months. He claims that prisoners in regions not controlled by He also alleges that

Pierce are reviewed in a different manner.

Defendant Pitts carried out her evaluations of Plaintiff in a manner that effectuated Pierce's personal policy variation.

Defendants do not address these claims in their motion to dismiss and they are not obviously defective on their face. Court's duty to raise arguments for the parties. these claims can proceed. It is not the

For this reason,

Defendants' motion should be denied to

the extent that it seeks dismissal of Plaintiff's third claim for relief. The continuation of the case on Plaintiff's third claim for relief means that a discovery schedule will need to be set for that claim. This is particularly true given that it may well turn on

factual issues regarding Pierce's policies and practices, Pitt's aid in effectuating those practices, and the comparative practices in other areas of North Carolina. The setting of that schedule

will be done following a ruling on the recommendation that all of Plaintiff's due process claims and his equal protection claim based on the NCDOC's policies themselves be dismissed. -12-

The issue of discovery also brings up the second motion pending before the Court--Plaintiff's motion for sanctions. A

certain amount of background is necessary before the motion for sanctions can be discussed directly. Following the filing of the

amended answer, the Court set the case on a standard discovery track with all discovery to be completed by January 18, 2008. Dispositive motions were to be filed by February 18, 2008. (Docket No. 30.) Following the entry of that order, Plaintiff did serve Defendants responded by moving (Docket No. 31.) In the

Defendants with written discovery.

for a protective order staying discovery.

memorandum supporting that motion, they stated that (1) they had immunity from suit in their individual capacity, (2) they intended to raise this defense in their summary judgment motion to be filed by February 18, 2008, and (3) a stay in discovery was needed to protect Defendants from the burden of discovery until their defense could be raised. (Docket No. 32.) Defendants were granted the

stay that they requested, with discovery being stayed even now. Defendants did indeed file a dispositive motion on February 18, 2008. However, it was not the motion described in their Rather than a motion for summary

request for a protective order.

judgment, it was, as mentioned above, a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Not only this, but the defense of Defendants actually state that This makes the

qualified immunity was not raised.

they were sued only in their official capacity. doctrine of qualified immunity inapplicable.

Ridpath v. Board of

Governors Marshall University, 447 F.3d 292 (4th Cir. 2006). Worse -13-

still, the motion addresses only two of three claims raised by Plaintiff in his complaint. This means that all discovery has been stayed in this case for months only to have Defendants raise a dispositive motion that is not what was forecast and that cannot end the case. Based on the handling of the case, Plaintiff has filed a motion seeking sanctions against Defendants' attorney. (Docket No. 45.) above. In that motion, Plaintiff sets out the situation described He notes that he never sued Defendants in their individual that they were, therefore, never able to raise

capacities,

qualified immunity as a defense, and that he has now been prevented from conducting discovery for months based on their representation otherwise. He argues that Defendants' counsel failed to make a

reasonable inquiry into the pertinent issues before pursuing the motion for a protective order. R. Civ. P. 26(g). He then seeks sanctions under Fed.

His proposed sanctions, however, are only that

the protective order be rescinded, that Defendants be compelled to answer his discovery requests, and that the Court "impose any sanction that [it] deems appropriate." (Docket No. 46.) For

reasons that are not apparent, Defendants filed no response. The handling of the case to this point, combined with

Plaintiff's unopposed motion for sanctions, places the Court in a difficult position regarding the motion for sanctions. The actions of Defendants' attorney in handling the case fall far, far short of what is ordinarily acceptable. reasonable one. Also, Plaintiff's request is a

He really seeks only to have what he has been -14-

denied.

Still, although Plaintiff's motion states that it is

brought under Fed. R. Civ. P. 26(g), the nature of the motion reveals that it should really be viewed as one for harassing or vexatious litigation under Fed. R. Civ. P. 11(b) and 28 U.S.C. § 1927. Prevailing on such a motion would require a showing of bad Chaudhry v. Gallerizzo, 174 F.3d 394, 410-11

faith by counsel. (4th Cir. 1999).

There are not sufficient grounds for a finding of While the record certainly shows an embarrassing, level of procedural

bad faith in the present case. unacceptable, and hopefully

inattentiveness by Defendants' counsel, there is no indication that the purpose of her actions was to harass Plaintiff, as opposed to issues of diligence and competance. be denied.5 Based on the foregoing reasons, IT IS THEREFORE ORDERED that Plaintiff's motion for sanctions (Docket No. 45) is denied. IT IS RECOMMENDED that Defendants' motion to dismiss (Docket No. 39) be granted as to Plaintiff's due process claims and his equal protection claim based on the policies of the North Carolina Department of Corrections, that the motion to dismiss be denied as to Plaintiff's equal protection claim based on Defendants Pierce The motion for sanctions will

Although the motion for sanctions is being denied for a lack of bad faith, P l a i n t i f f should be aware that his objective in making the motion, i.e. receiving a n opportunity to conduct discovery, will likely be realized. The current r e c o m m e n d a t i o n is that one of Plaintiff's equal protection claims move forward. I f that recommendation is adopted, the protective order will be vacated and P l a i n t i f f will be given a chance to pursue discovery on his remaining claim. He w i l l , of course, have to abide by this Court's discovery rules.

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and Pitts' applications of those policies which are alleged to deny Plaintiff custody reviews that are granted to prisoners in other regions of North Carolina.

________________________________ United States Magistrate Judge

November 19, 2008

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