REEVES v. HUBBARD et al
Filing
43
MEMORANDUM OPINION, ORDER AND RECOMMENDED RULING - MAGISTRATE JUDGE re 31 MOTION for Summary Judgment filed by BRAD PERRITT, FREDERICK HUBBARD, ISSAC BALDWIN, TERESA JONES, ALBERT THOMAS be GRANTED, 26 MOTION for Temporary Restraining Order filed by WILLIAM B. REEVES be DENIED signed by MAG/JUDGE L. PATRICK AULD on 9/23/11. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM B. REEVES,
Plaintiff,
v.
FREDERICK HUBBARD, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:08CV721
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, filed a
Complaint seeking injunctive relief and damages pursuant to 42
U.S.C. § 1983 for alleged federal constitutional violations due to
lack of access to legal papers, destruction of grievances, and
failure to assign jobs.
(See Docket Entry 2 at 4-7.)1
The
Complaint names five employees of Scotland Correctional Institution
(“SCI”) as defendants:
1) Frederick Hubbard, Administrator I; 2)
Albert Thomas, Administrator II; 3) Brad Perritt, Captain; 4) Issac
Baldwin, Unit Manager; and 5) Teresa Jones, Assistant Unit Manager.
(Id. at 2.)
More than 21 days after both the filing of the
Complaint (see id. at 1) and of Defendants’ Answer (see Docket
Entry 15 at 6), Plaintiff sought leave to amend to add two more SCI
employees as defendants: 1) J. Herron, Acting Administrator I; and
2) Gary Crutchfield, Acting Administrator II.
1.)
(Docket Entry 24 at
As support for this request, Plaintiff asserted that said
1
The Complaint consists of pages from a standard form Section 1983
complaint (that bear their own pagination) interspersed with additional pages (on
which Plaintiff placed no numbers), followed by various attachments. (See Docket
Entry 2 at 1-41.) To minimize confusion, this Memorandum Opinion will cite to
the page numbers appearing in the CM/ECF footer of the docketed Complaint.
individuals “have authorities to remove [the] policies in violation
of [his] rights.”
to
Cause
for
a
(Id. at 2.)
[sic]
Plaintiff also has filed an “Order
Injunction”
with
supporting
brief
and
declaration (Docket Entries 26-28), a “Motion to Set an [sic] Trial
Date” (Docket Entry 40), and a “Second Motion for Appointment of
Counsel” (Docket Entry 41).2
judgment.
Defendants have moved for summary
(Docket Entry 31.)
For the reasons that follow,
Defendants’ summary judgment motion should be granted and, to the
extent it constitutes a motion, Plaintiff’s “Order to Cause for a
[sic] Injunction” should be denied.
Given that determination,
Plaintiff’s motions seeking addition of defendants, establishment
of a trial date, and appointment of counsel will be denied.
BACKGROUND3
Plaintiff “was indicted for [] first-degree murder [in Forsyth
County, North Carolina,] . . . tried capitally, found guilty as
charged, and sentenced to a mandatory term of life imprisonment.”
State v. Reeves, 343 N.C. 111, 112, 468 S.E.2d 53, 54 (1996).
The
North Carolina Supreme Court affirmed that conviction and sentence
on April 4, 1996.
See id. at 113, 468 S.E.2d at 55.
Plaintiff
pursued a collateral challenge in the state court system, but the
North Carolina Supreme Court refused to review the trial court’s
denial of relief.
See State v. Reeves, 539 S.E.2d 5 (N.C. 1999).
2
The Court (per United States Magistrate Judge Donald P. Dietrich) denied
an earlier request for appointment of counsel. (See Docket Entries 16, 21.)
3
As required by authority set forth below, see infra, p. 13, all facts
come from the record as viewed in the light most favorable to Plaintiff.
-2-
Plaintiff
thereafter
unsuccessfully
attacked
his
murder
conviction and life sentence in this Court via a petition under 28
U.S.C. § 2254 for a writ of habeas corpus.
See Reeves v. Beck, No.
1:99CV931-JAB (M.D.N.C. Sept. 21, 2000) (unpublished). He filed no
notice of appeal.
See Docket, Reeves, No. 1:99CV931-JAB.
Over
five years later, Plaintiff filed two identical petitions under
Section
2254
challenging
his
foregoing
state
conviction
and
sentence, both of which this Court (per now-Chief Judge James A.
Beaty, Jr.) dismissed for failure to obtain authorization from the
United States Court of Appeals for the Fourth Circuit under 28
U.S.C. § 2244 to file a successive habeas petition.
Mitchell,
No.
1:05CV895-JAB-RAE
(M.D.N.C.
Feb.
See Reeves v.
16,
2006)
(unpublished); Reeves v. Mitchell, No. 1:05CV1046-JAB-RAE (M.D.N.C.
Feb. 23, 2006) (unpublished).4 Both judgments denied a certificate
of appealability.
See id.
notice
in
of
appeal
Moreover, Plaintiff failed to file a
either
case.
See
Docket,
Reeves,
No.
1:05CV895-JAB-RAE; Docket, Reeves, No. 1:05CV1046-JAB-RAE.
“On April 3, 2007 Plaintiff . . . was placed on disciplinary
segregation [at SCI].” (Docket Entry 2 at 4; see also Docket Entry
15 at 3.)5
On April 7, 2007, Plaintiff submitted a “Request for
Information Form” at SCI stating that he would “like to receive all
4
During the pendency of the first of those two actions (and two days
before Plaintiff instituted the second such action), the Fourth Circuit denied
Plaintiff’s motion under Section 2244 for authorization to pursue a successive
habeas action. In re Reeves, No. 05-489 (4th Cir. Nov. 28, 2005) (unpublished).
5
For ease of reading, quotations from the Complaint reflect standard
capitalization conventions even where the Complaint did not use them.
-3-
of [his] legal papers, letters, files, [and] court documents [from
the unit in which he previously had been housed].”
(Docket Entry
2 at 23.) According to that request, Plaintiff had a “deadline” in
an “ongoing legal case” and had “be[en] trying to get [his] legal
papers, letters, etc. since 4/3/07.”
(Id.)
On May 2, 2007, Plaintiff filed a grievance (#4860-R07-095) at
SCI complaining about lack of access to and/or loss of “legal
documents,” as well as other personal property, occasioned by his
transfer to segregation.
(Id. at 11.)
Defendant Jones responded
(in a document apparently signed for by Plaintiff on June 3, 2007)
that
Plaintiff
“may
have
any
legal
materials
that
is
[sic]
currently active in court . . . [and that] a complete inventory
[would] be conducted of all of [Plaintiff’s] personal property and
compared to [the form that was completed when Plaintiff was
transferred to segregation on April 3, 2007]. No further action is
recommended.”
(Id. at 25.)6
Plaintiff unsuccessfully appealed
that decision through the available administrative process.
(See
id. at 25, 32.)
6
That response is consistent with a memorandum entitled “APPROVED ITEMS
FOR SEGREGATION” signed by Defendant Perritt on August 27, 2007, which lists
“Legal Material for Current Case Only” and states that an “[i]nmate should be
allowed to demonstrate what material is currently pending in the courts or has
[sic] a court deadline and provided with that material / or that material made
available to him.” (Docket Entry 2 at 24.) Documents that Plaintiff attached
to an unauthorized summary judgment sur-reply indicate that, on April 18 and 30,
2007, he submitted grievance forms at SCI raising similar complaints about lack
of access to and/or loss of his legal papers, but that (unlike Plaintiff’s
grievance of May 2, 2007) Defendant Jones rejected those forms because they
involved “[m]ore than one incident” and did not follow grievance “procedures.”
(Docket Entry 36-2 at 1, 4.) In continuation pages attached to the rejected
grievance forms, Plaintiff acknowledged that Defendant Baldwin had found and had
returned to Plaintiff some of the legal papers in question. (See id. at 2, 5.)
-4-
On August 8, 2007, Plaintiff completed a “Claim for Damages
under Tort Claims Act” against the North Carolina Department of
Correction (“NCDOC”) that the North Carolina Industrial Commission
(“NCIC”) received on August 10, 2007.
(Id. at 12.)
In that
document, Plaintiff asserted that, on April 3, 2007, at SCI, he
suffered damages of “over $350,000 by reason of the negligent
conduct of . . . C/O S. Morgan [and] C/O W. Simons.”
Specifically,
Plaintiff
claimed
that,
upon
his
(Id.)
placement
in
segregation, he lost access to his “legal property,” that said
“legal property” was “lost or destroyed,” and that (as a result) he
“missed [his] filing deadline of [his] legal case.”
(Id.)7
In August 2007, Plaintiff filed another grievance at SCI
(#4860-R07-138) regarding the loss of his legal papers, to which
Defendant Jones responded on August 20, 2007 (which response
Plaintiff signed to initiate further review on August 22, 2007).
(Id. at 5, 27.)8
In that response, Defendant Jones stated:
“[I]t
is regrettable that your legal material was lost and every effort
is being made to look for the material; however, as you mentioned,
staff has assisted you in replacing other lost property.
further action recommended.”
(Id. at 27.)
No
That response was
confirmed by an SCI Administrator (apparently – based on the
signature – Defendant Hubbard) and, on August 31, 2007, Plaintiff
7
The NCIC’s final ruling indicates that the $350,000+ figure reflects the
estimate attorney Joseph Cheshire gave Plaintiff “for obtaining representation
to attempt to re-open his Federal appeal.” (Docket Entry 32-2 at 2.)
8
Neither Plaintiff nor Defendants attached said grievance to their
pleadings or summary judgment filings. (See Docket Entries 2, 15, 31, 32, 34-36.)
-5-
signed the response form indicating he wished to appeal to the
NCDOC.
(Id.)
On October 9, 2007, Plaintiff filed grievances (#4860-R07-187
and #4860-B07-383) in the two units of SCI where he was assigned
following and before his transfer to segregation (i.e., the “Red
Unit” and “Blue Unit,” respectively) about his lost property,
including legal papers, as well as a report from an unidentified
individual that Plaintiff’s grievance #4860-R07-138 was destroyed
(rather than sent to the NCDOC).
(See id. at 28, 29.)9
On October 16, 2007, Defendant Jones responded to grievance
#4860-R07-187 as follows:
[Plaintiff],
your
complaint
has
been
received.
[Plaintiff], your grievance 4860-R07-138 left the Red
Unit on 09/04/07 to be sent to the IGRB [NCDOC’s Inmate
Grievance Resolution Board].
Your source that states
they saw your grievance destroyed is mistaken and gave
you false information.
Grievances are not destroyed
unless a [grievance response form] has a mistake and I
re-type the information.
This is prior to any
signatures. [Plaintiff], as an act of good faith, your
alleged missing hygiene products were replaced with
donated items from programs and [Defendant] Baldwin
brought what legal mail was stored on the Blue Unit to
you. As far as Red Unit Staff, we have gone as far as we
can to accommodate you and have referred you to the
appropriate staff for further assistance.
Please be
assured grievances are investigated and responded to as
soon as possible.
(Id. at 28.)
That same day, Plaintiff signed the foregoing
response form to reflect his desire for further review.
(Id.)
Defendant Thomas affirmed Defendant Jones’s response on October 21,
2007, and, by signature dated December 28, 2007, Plaintiff appealed
9
Neither Plaintiff nor Defendants attached said grievances to their
pleadings or summary judgment filings. (See Docket Entries 2, 15, 31, 32, 34-36.)
-6-
that decision to the NCDOC.
(Id.)
As to grievance #4860-B07-383,
an SCI official assigned to the Blue Unit echoed the response by
Defendant Jones (on October 21, 2007), Plaintiff appealed (on
October 24, 2007), Defendant Thomas upheld that response (on
October 29, 2007), and Plaintiff sought review by the NCDOC (on
November 2, 2007).
(Id. at 29.)10
Through its IGRB, the NCDOC considered Plaintiff’s allegations
regarding his lost property and the handling of his related
grievances, including Plaintiff’s assertion (apparently in letters
to the NCDOC, which do not appear in the record) that he was “being
retaliated against by staff.”
(Id. at 33.)
In a “Findings and
Disposition Order” dated February 7, 2008, an IGRB official gave
this accounting of what occurred as a result:
We met with [Plaintiff] and [SCI] officials on December
11, 2007 to discuss these issues and to respond to the
seriousness of [Plaintiff’s] allegations. In response to
the above mentioned grievances, [SCI] Administrators have
agreed to assist in the replacement of [Plaintiff’s]
transcripts and other legal material. It was explained
by [Defendant] Jones, that [Plaintiff’s] missing hygiene
products were replaced with donated items from programs.
We have talked to [SCI] Administrators and advised them
of the importance of complying with the Administrative
Remedy Procedure [regarding the handling of grievances].
The Director of Prisons has been advised and has also
authorized an investigation at [SCI].
This examiner has reviewed this grievance and having
found merit to [Plaintiff’s] complaint, please be aware
that corrective action is in progress. Therefore, this
10
Plaintiff also filed a similar grievance (#4860-R08-024) on September
26, 2007, that SCI officials did not process until January 2008, when they
apologized for the late response, reiterated their commitment to find the lost
items if possible, and promised to address any staff negligence found. (See
Docket Entry 2 at 31.) When Plaintiff appealed, Defendant Thomas affirmed the
foregoing response. (Id.)
-7-
grievance as well as the above mentioned grievances are
considered resolved by [t]he [IGRB].
(Id.)
Plaintiff thereafter wrote to Defendant Hubbard expressing his
understanding that the IGRB had directed SCI “to pay the cost to
get all known legal documents back and have the deadline reopened,
in order to file [Plaintiff’s] appeal before the courts.”
(Id. at
38.) The letter asserted that Plaintiff had provided SCI officials
with documentation “from the law office who could get all of the
legal documents & eyewitnesses [sic] statements, plus have [his]
appeal deadline reopened before the courts . . . [as well as] the
cost of this law firm’s fees to handle documents of a first-degree
murder case conviction like [Plaintiff’s].”
(Id.)
According to
the letter, Plaintiff also gave Defendant Thomas a list of the
other lost personal property and Defendant Thomas “stated [it]
would be replaced into [Plaintiff’s] account.”
(Id.)
The letter
closed with a demand that Defendant Hubbard confirm whether SCI
would pay the costs Plaintiff had outlined.
(Id.)
By letter dated March 3, 2008, Defendant Hubbard responded as
follows:
All canteen items that you had listed you will be
reimbursed at the amount of $62.07.
It will take
approximately three (3) weeks for these funds to be
placed in your trust fund account. This is the normal
process for reimbursement of any amount exceeding $50.00.
Mrs. K.G. Banos, Deputy Clerk of Superior Court Forsyth
County, Winston-Salem, NC has researched your file # 94
CRS 18026 and indicated that there are a total of 169
pages of transcript. [SCI] has arranged for Forsyth
County to copy and mail to you the transcript at the cost
to [SCI] of $44.00.
-8-
I do apologize for any inconvenience that you may have
endured doing [sic] this incident.
Please do not
hesitate to contact this office for any other questions/
concerns you may have.
(Id. at 41.)11
On July 26, 2008, Plaintiff submitted a grievance (#4860-B08294) at SCI asserting that his request for promotion to medium
custody status was rejected in retaliation for appealing to the
IGRB about the handling of his earlier grievances regarding his
lost property.
(Id. at 15-16.)
In that grievance, Plaintiff did
not reference any alleged retaliatory denial of job placements.
(See id.)
An SCI official (apparently – based on the signature –
Defendant Baldwin) then made this reply (on August 8, 2008):
[I]nvestigation
reveals
Mr.
Crutchfield
Asst.
superintendent of Programs reported [Plaintiff] has been
promoted to medium custody on three previous occasions
only to be demoted back to closed custody again for poor
behavior.
He is serving a life sentence and is not
eligible for parole consideration until 5/21/2014. He
has thirty four infractions on his record at this time.
He is not in school nor assigned to a job at this time.
Custody decisions are made at the facility level and no
observation time is needed.
No Further action
recommended at this time.
(Id.
at
17
(errant
capitalization
in
original).)
Plaintiff
requested further review (on August 11, 2008), an SCI Administrator
11
In a grievance dated May 22, 2008, Plaintiff objected to SCI’s response
and demanded that SCI “forward the total cost of what th[e] law firm is asking
to [his] account.” (Docket Entry 2 at 18.) Neither Plaintiff nor Defendants
attached documentation regarding the disposition of that grievance to their
pleadings or summary judgment filings. (See Docket Entries 2, 15, 31, 32, 34-36.)
-9-
ruled the prior response sufficient (on August 27, 2008), and
Plaintiff appealed to the NCDOC (on September 6, 2008). (See id.)12
Plaintiff dated his Complaint in the instant case as signed on
October 8, 2008 (id. at 8), but this Court received the Complaint
on October 7, 2008 (id. at 1).
By order dated July 8, 2009 (and
stamped filed July 17, 2009), the NCIC ordered the NCDOC to pay
Plaintiff $150.00 in damages.
(See Docket Entry 32-2 at 1, 5.)
In
rendering that decision, the NCIC made these findings of fact:
1) “[o]n 3 April 2007, [P]laintiff was placed in segregation
and his property was removed from his cell and placed into storage
by Correctional Officers S. Morgan and W. Simons” (id. at 2);
2) a standard inventory form “lists the property that was
removed,
including
a
number
of
canteen
items,
assorted
correspondence, pictures, and legal documents” (id.);
3) the NCDOC “either replaced or paid [P]laintiff the amount
of $62.07 for the canteen goods . . . [and] Plaintiff stated he
received the money in question and ha[d] no further claim to the
loss of his property beyond that of legal documents” (id.);
4) “[a]t the time of the property loss, [P]laintiff was
engaged in the Federal appellate process, attempting to obtain
review of his conviction . . . [and] the lost legal documents were
trial transcripts, Federal appellate court documents, and two
affidavits from witnesses” (id.);
12
Neither Plaintiff nor Defendants attached documentation of the
disposition of that appeal to their pleadings or summary judgment filings. (See
Docket Entries 2, 15, 31, 32, 34-36.)
-10-
5) “Plaintiff has contacted the law firm of Cheshire, Parker,
Schneider, Bryant & Vitale to inquire of the costs for obtaining
representation to attempt to reopen his Federal appeal . . . [and]
attorney
Joe
Cheshire
[has]
quote[d]
an
ultimate
cost
of
$365,900.00 for plaintiff’s case” (id.);
6)
“Plaintiff
was
able
to
obtain
copies
of
the
lost
transcripts . . . [at a cost to him] of $44.00" (id.);
7) “One of the witnesses who provided [P]laintiff with a
statement has passed away[,] . . . [t]he second witness appears to
be available to provide a replacement affidavit[, and] [t]he
correspondence and Federal appellate documents are replaceable”
(id.); and
8) the NCDOC “has acknowledged the loss of [P]laintiff’s
property while in [its] possession” (id.).13
Defendants thereafter moved for summary judgment in this case
and
attached
to
their
supporting
brief
various
affidavits,
including from Defendants Hubbard, Jones, Perritt, and Baldwin.
(See Docket Entries 31, 32-3, 32-4, 32-9, 32-10.)
Immediately
after the filing of Defendants’ summary judgment motion, the Clerk
13
The NCIC also concluded as a matter of law that the NCDOC “was negligent
and violated the applicable standard of care in the handling of [P]laintiff’s
personal property proximately resulting in the loss his [sic] personal property
and legal materials,” Plaintiff was “entitled to the fair market value of his
unreturned items of personal property and legal materials on the date of its
possession by [NCDOC] officers,” and “Plaintiff [wa]s not entitled to have his
legal fees for an appellate review of his case paid for by [the NCDOC].” (Docket
Entry 32-2 at 4.) Plaintiff appealed the NCIC’s decision to the North Carolina
Court of Appeals. (See id. at 6-8.) The parties subsequent summary judgment
filings do not document the disposition of that appeal. (See Docket Entries 3436.) Nor did a legal database search unearth any such information.
-11-
mailed Plaintiff a letter explaining that he had 30 days “to file
a 20-page response in opposition to [said motion] . . . accompanied
by affidavits setting out [his] version of any relevant disputed
material facts or . . . other responsive material.”
33 at 1.)
(Docket Entry
The letter specifically cautioned Plaintiff that a
“failure . . . to file affidavits or evidence in rebuttal within
the
allowed
time
may
cause
the
[C]ourt
to
conclude
that
[Defendants’] contentions [we]re undisputed . . . .” (Id.) Within
the allotted time, Plaintiff filed a response in opposition without
any affidavits or other evidence.
(See Docket Entry 34.)14
On December 7, 2009, after Defendants replied (Docket Entry
35) and Plaintiff filed an unauthorized sur-reply (Docket Entry 36)
as to the summary judgment issues in the instant case, Plaintiff
instituted yet another action via Section 2254 attacking his state
murder conviction and sentence, which this Court (per Chief Judge
Beaty) dismissed for failure to obtain authorization from the
Fourth Circuit under Section 2244 to pursue a successive habeas
petition.
See Reeves v. Keller, No. 1:09CV942-JAB-LPA (M.D.N.C.
Jan. 21, 2010) (unpublished).
The Fourth Circuit thereafter again
denied a request from Plaintiff for such authorization.
See In re
Reeves, No. 10-103 (4th Cir. Feb. 9, 2010) (unpublished).
14
Plaintiff appended a “Verification” to the end of said filing, but said
“Verification” did not proclaim any of the factual assertions within the filing
as sworn or made under penalty of perjury. (See Docket Entry 34 at 18.) The
contents of said filing thus do not constitute evidence for purposes of analyzing
the summary judgment record. See In re French, 499 F.3d 345, 358 (4th Cir. 2007)
(“Dr. Freedenburg’s statement was neither sworn under oath nor made under the
penalty of perjury. As a result, the statement fails to meet the most basic
requirement of form [now codified in Federal Rule of Civil Procedure 56(c)].”).
-12-
DISCUSSION
Summary Judgment Standard
“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
In making this determination, “the court must draw all
reasonable inferences in favor of the nonmoving party, and it may
not make credibility determinations or weigh the evidence.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Accord Matvia v. Bald Head Island Mgt., Inc., 259 F.3d 261, 266
(4th Cir. 2001) (“The court must consider the evidence in the light
most favorable to the non-moving party and draw all reasonable
inferences from the facts in the non-movant’s favor.”).
“[T]here is no burden upon ‘the party moving for summary
judgment to produce evidence showing the absence of a genuine issue
of material fact.’
Rather, ‘the burden on the moving party may be
discharged by “showing” – that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”
Carr v. Deeds, 453 F.3d 593, 608 (4th
Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)) (internal emphasis omitted).
Conversely, “[t]he party
opposing a properly supported motion for summary judgment may not
rest upon mere allegations or denials of his pleading, but ‘must
come forward with specific facts showing that there is a genuine
issue for trial.’”
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.
2008) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
-13-
475 U.S. 574, 587 (1986)).
Hamilton,
Inc.,
452
F.3d
See also Francis v. Booz, Allen &
299,
308
(4th
Cir.
2006)
(“Mere
unsupported speculation is not sufficient to defeat a summary
judgment motion if the undisputed evidence indicates that the other
party should win as a matter of law.”).
Access to Courts Claim
According to the Complaint, Defendants Hubbard and Thomas
enacted a policy at SCI that denied Plaintiff physical custody of
legal papers upon his placement in segregation in April 2007 and
thereby “violated Plaintiff’s rights under the Federal Constitution
. . . [b]y depriving Plaintiff of his rights of access to the
courts.”
(Docket Entry 2 at 4 (emphasis added).)
The United
States Supreme Court long ago recognized “that prisoners have a
constitutional right of access to the courts.”
Bounds v. Smith,
430 U.S. 817, 821 (1977). However, “an inmate alleging a violation
of Bounds must show actual injury . . . [to satisfy] the doctrine
of standing, a constitutional principle that prevents courts of law
from undertaking tasks assigned to the political branches.”
v. Casey, 518 U.S. 343, 349 (1996).
Lewis
Plaintiff has failed to come
forward with any evidence that would allow a reasonable fact-finder
to conclude he suffered an actual injury as a result of any SCI
policy that affected his access to legal papers in April 2007.
As outlined in the Background section, see supra, pp. 3-11,
the attachments to the Complaint and other record materials reflect
that the only specific harm Plaintiff ever described suffering due
to lack of access and/or loss of his legal papers in April 2007
-14-
concerns his alleged inability to meet deadlines in a federal
habeas proceeding.
However, the records of this Court (summarized
above, see supra, pp. 3, 12) conclusively demonstrate that:
1) Plaintiff’s first federal habeas case ended in October
2000, when he failed to give notice of appeal within 30 days of the
Court’s denial of his Section 2254 petition on September 21, 2000,
see Fed. R. App. P. 4(a)(1)(A) (1999);
2) Plaintiff’s second and third federal habeas cases ended in
March 2006, when he failed to give notice of appeal within 30 days
of the Court’s dismissal of his Section 2254 petitions on February
16 and 23, 2006, see Fed. R. App. P. 4(a)(1)(A) (2005); and
3) Plaintiff did not commence his fourth federal habeas case
until December 7, 2009.
Accordingly, when Plaintiff went into segregation in April
2007, he had no ongoing federal habeas case and had already missed
the deadline for appealing the dismissals of his second and third
federal habeas cases by more than a year.
and/or
loss
segregation
of
Plaintiff’s
policies
in
legal
April
Any denial of access to
papers
2007
occasioned
therefore
did
by
SCI’s
nothing
to
interfere with Plaintiff’s ability to make timely filings in any
ongoing
federal
habeas
case.
Moreover,
shortly
before
the
dismissal of Plaintiff’s second and third federal habeas cases, and
again, shortly after the dismissal of his fourth federal habeas
case, the Fourth Circuit denied Plaintiff permission to pursue
successive habeas actions.
Reeves, No. 05-489.
See In re Reeves, No. 10–103; In re
Plaintiff has offered no basis to conclude
-15-
that he had any viable argument to obtain such authorization at any
time (and certainly not in April 2007). (See Docket Entries 2, 34,
36.)
“Depriving someone of a frivolous claim . . . deprives him of
nothing at all . . . .”
Lewis, 518 U.S. at 353 n.3.
Under these circumstances, the Court should enter summary
judgment for Defendants on Plaintiff’s “access to courts” claim
based on the lack of any evidence of any actual injury.15
Retaliation Claim
The Complaint alleges that, because Plaintiff filed grievances
at SCI regarding lack of access to and/or loss of his property and
filed a complaint with the NCIC about such matters, Defendants
Perritt, Baldwin, and Jones retaliated against him by destroying
15
To the extent Plaintiff’s summary judgment response contends that SCI’s
policies limiting the property an inmate may possess in segregation undermined
his ability to file “lawsuits” (in addition to “conviction appeals”) (Docket
Entry 34 at 4), his claim still fails as a matter of law. The right of access
to courts “does not extend ‘further than protecting the ability of an inmate to
prepare a petition or complaint.’” Wrenn v. Freeman, 894 F. Supp. 244, 248
(E.D.N.C. 1995) (quoting Wolff v. McDonnell, 418 U.S. 539, 576 (1974)) (first set
of internal quotation marks from earlier Eastern District of North Carolina case
omitted). Plaintiff’s Complaint and summary judgment filings fail to identify
any civil suit he could not file because of any SCI policy. (See Docket Entries
2, 34, 36.). Moreover, while at SCI, Plaintiff prepared the Complaint in this
case, as well as the complaint he filed in the NCIC. (See Docket Entry 2 at 2,
12.) The record thus cannot support a finding that any policy at SCI compromised
Plaintiff’s right to access the courts for civil litigation. Nor can Plaintiff
maintain an “access to courts” claim based on the theoretical prospect that SCI’s
segregation policies might someday harm his ability to file a petition or
complaint, particularly given his transfer away from SCI in 2010 (see Docket
Entries 37, 38). See Lewis, 518 U.S. at 349 (“It is for the courts to remedy
past or imminent official interference with individual inmates’ presentation of
claims to the courts; it is for the political branches of the State and Federal
Governments to manage prisons in such fashion that official interference with the
presentation of claims will not occur. . . . [T]he distinction between the two
roles would be obliterated if, to invoke intervention of the courts, no actual
or imminent harm were needed, but merely the status of being subject to a
governmental institution that was not organized or managed properly.”).
-16-
his grievances (rather than forwarding them to the NCDOC for
further review) and by denying him prison jobs.
2 at 5-7.)
(See Docket Entry
“Retaliation by a public official for the exercise of
a constitutional right is actionable under 42 U.S.C. § 1983, even
if the [retaliatory] act, when taken for different reasons, would
have been proper.”
American Civil Liberties Union of Md., Inc. v.
Wicomico Cnty., Md., 999 F.2d 780, 785 (4th Cir. 1993). The filing
of a lawsuit involves the exercise of constitutional rights (i.e.,
the First Amendment rights to petition the government and to access
the courts), id.; however, the submission of internal prison
grievances does not constitute constitutionally-protected activity,
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
“A plaintiff alleging that government officials retaliated
against
her
in
violation
of
her
constitutional
rights
must
demonstrate, inter alia, that she suffered some adversity in
response to her exercise of protected rights.” Wicomico Cnty., 999
F.2d at 785 (emphasis added).
Accordingly, “[w]here [a] plaintiff
claims that he suffered retaliation for filing a lawsuit, he must
show that the retaliatory acts adversely impacted his right to
access the courts.” Talbert v. Hinkle, 961 F. Supp. 904, 911 (E.D.
Va. 1997) (citing Wicomico Cnty.).
“In addition, [a] plaintiff
must come forward with specific evidence ‘establishing that but for
the retaliatory motive the complained of incidents would not have
occurred.’”
Scott v. Kelly, 107 F. Supp. 2d 706, 709 (E.D. Va.
2000) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995))
(internal brackets and ellipses omitted) (emphasis added), aff’d,
-17-
6 Fed. Appx. 187 (4th Cir. 2001). Moreover, the Fourth Circuit has
cautioned that “[t]he prospect of endless claims of retaliation on
the part of inmates would disrupt prison officials in the discharge
of their most basic duties. Claims of retaliation [in prison] must
therefore be regarded with skepticism . . . .”
74 (emphasis added).
Adams, 40 F.3d at
In this case, Plaintiff has not come forward
with specific evidence to overcome such skepticism and to allow a
reasonable
fact-finder
to
conclude
that
Defendants
Perritt,
Baldwin, and Jones engaged in unconstitutional retaliation in
connection with Plaintiff’s grievances or work options in prison.
As an initial matter, “there is no constitutional right to
participate in grievance proceedings.”
Id. at 75.
Indeed, “the
Constitution creates no entitlement to grievance procedures or
access to any such procedure voluntarily established by a state.”
Id.
Any interference in Plaintiff’s participation in the NCDOC’s
grievance process thus falls short of the requisite adversity
needed to make out a federal constitutional retaliation claim,
particularly where, as here, Plaintiff has not shown that any such
interference negatively impacted his ability to litigate.
See
Oliver v. Braxton, 20 Fed. Appx. 247, 247-48 (4th Cir. 2001)
(“Oliver alleges that in retaliation for filing lawsuits against
them, prison officials have barred his access to the grievance
process.
Even if Defendants refused to file the grievances in
retaliation, Oliver has no cognizable injury on the face of the
present record.”) (citing Adams and Wicomico Cnty.).
Further, as
detailed in the Background section, see supra, pp. 7-8, the NCDOC
-18-
received
and
addressed
Plaintiff’s
grievances
regarding
his
property, as well as the handling of his grievances, and thus the
record cannot support a finding of any material interference by
Defendants Perritt, Baldwin, and Jones.
As to the alleged denial of job assignments, Plaintiff has
“merely and conclusorily assert[ed] that [such activity] occurred
as part of [D]efendants’ general scheme of retaliation,” Adams, 40
F.3d at 75, and has failed to offer “specific evidence establishing
that but for the retaliatory motive the complained of incidents
would not have occurred,” Scott, 107 F. Supp. 2d at 709 (internal
brackets,
ellipses,
and
quotation
marks
omitted).
Moreover,
undisputed record evidence reflects that “the number of [SCI]
inmates exceeds the number of job assignments [at SCI],” that
Plaintiff obtained a kitchen job on June 6, 2007 (after he began
filing grievances about his lack of access to and/or the loss of
his property), and that he only lost the opportunity to work in the
kitchen on August 6, 2007 (before he executed the lawsuit he filed
with NCIC), when he was caught stealing. (See Docket Entry 32-6 at
2, 4.)
Such circumstances doom Plaintiff’s retaliation claim.
See, e.g., Brent v. Kupec, No. Civ. A. WMN-04-3746, 2005 WL
1075476, at *2 (D. Md. May 5, 2005) (unpublished) (“The existence
of an independent reason for removing Plaintiff from his [prison]
job and subsequent failure to rehire him for the same job, should
be sufficient to refute his claim that there was retaliatory animus
involved in those decisions.”), aff’d, 159 Fed. Appx. 484 (4th Cir.
2005).
Finally, because Plaintiff has not established that any
-19-
denial of work opportunities had any negative effect on his pursuit
of constitutionally-protected litigation, his retaliation claim
fails. See Talbert, 961 F. Supp. at 911-12 (ruling that prisoner’s
firing from job, even if motivated by his filing of lawsuit, failed
to support retaliation claim because of lack of evidence that job
loss “adversely impacted his right of access to the courts”).
CONCLUSION
Plaintiff has failed to identify record evidence that would
allow
a
reasonable
deprived
him
of
fact-finder
access
to
to
the
determine
courts
that
and/or
Defendants
engaged
unconstitutional retaliation as his Complaint alleged.
in
The Court
thus should enter summary judgment for Defendants and should
decline to order any relief for Plaintiff.
In light of the
foregoing
to
recommendation,
Plaintiff’s
request
add
two
new
defendants fails as futile, see Foman v. Davis, 371 U.S. 178, 182
(1962) (recognizing futility as grounds to deny amendment under
Fed. R. Civ. P. 15(a)),16 and no need exists to set a trial date
and/or to appoint counsel for Plaintiff.
IT
IS
THEREFORE
RECOMMENDED
that
Defendants’
Motion
for
Summary Judgment (Docket Entry 31) be GRANTED and that, to the
extent it constitutes a motion, Plaintiff’s “Order to Cause for a
[sic] Injunction” (Docket Entry 26) be DENIED.
16
For reasons stated in Deberry v. Davis, No. 1:08CV582, 2010 WL 1610430,
at *7 n.8 (M.D.N.C. Apr.19, 2010) (unpublished), the undersigned Magistrate Judge
will enter an order, rather than a recommendation as to said motion.
-20-
IT IS ORDERED that Plaintiff’s Motion for Leave to File an
Amended Complaint (Docket Entry 24), “Motion to Set an [sic] Trial
Date” (Docket Entry 40), and “Second Motion for Appointment of
Counsel” (Docket Entry 41) are DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 23, 2011
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