THOMAS v. PORCHER et al
Filing
102
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 9/29/2014; that Defendants' motion for summary judgment (Doc. 32 ) be GRANTED, that Defendants' motions to strike (Doc. 78 , Doc. 86 ) be DENIED as moot, and that Thomas' motions (Doc. 92 , 93 , and 97 ) be DENIED. FURTHER that the Clerk is directed to unseal Defendants' Exhibit (Doc. 39 ) filed January 9, 2014. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALPHONZA LEONARD PHILLIP
THOMAS, III,
)
)
)
Plaintiff,
)
)
v.
)
)
OFFICER PORCHER, in his individual )
capacity, OFFICER HOPKINS, in his )
individual capacity, OFFICER
)
SOLOMON, in his individual
)
capacity,
)
)
Defendants.
)
1:12CV223
MEMORANDUM OPINION AND ORDER
In
this
case,
pro
se
Plaintiff
Alphonza
Thomas
brings
claims under 42 U.S.C. § 1983 related to prison conditions and
an assault that occurred while he was a pretrial detainee at the
Alamance
County
Detention
Center
(“ACDC”).
Defendants
B.
Porcher, K. Hopkins, and M. Solomon, all ACDC officials during
some point in Thomas’ detention, have moved for summary judgment
and/or for judgment on the pleadings (Doc. 32), and both parties
have filed other related motions (Docs. 78, 86, 92, 93, 97).
Thomas
was
advised
of
his
right
to
respond
to
Defendants’
dispositive motion (Doc. 43), and has responded (Doc. 67, 82).
For the reasons set out below, Defendants’ motion for summary
judgment will be granted, and all other motions will be denied.
I.
BACKGROUND
At all times relevant, Thomas was a pretrial detainee at
the Alamance County Detention Center (“ACDC”) for several months
in 2010.
Defendant Porcher has been a detention officer at ACDC
since 1990 and a sergeant since 2006.
Defendant Hopkins has
been employed as an ACDC detention officer since March 2007, and
Defendant Solomon was an ACDC detention officer during 2010.
Thomas
alleges
a
litany
May
2010,
of
grievances
against
the
to
and
Defendants:
(1)
On
9,
Hopkins
exposed
him
lice
Licenator, an aerosol pesticide, after a lice-infested inmate,
Brandon Smith, was placed in Thomas’ cell block at the ACDC.
(Compl. at 4–5.)
(2)
In
October
2010,
while
Solomon
was
in
charge
of
surveillance and monitoring in Thomas’ cell block, Thomas was
assaulted and knocked unconscious.
(Id. at 6.)
A surveillance
camera was allegedly “off rotation” and “focused on a wall.”
(Id.)
A “call box” in the cell block was also not functioning,
which frustrated Thomas’ attempt to call an officer for help
after the assault.
(3)
(Id.)
The detention center was overcrowded.
Thomas had to
sleep on the floor five feet away from a toilet, and there was
one shower for his unit, which included twenty-three to twentyseven men.
(4)
(Id. at 8.)
From August 2 through 9, 2010, he was subjected to
2
four strip searches.
(5)
(Id.)
He was not given a sufficient amount of soap and was
refused more when he requested it.
(6)
No
medical
screening
(Id.)
was
conducted
on
incoming
prisoners unless they had emergency medical conditions.
(Id.
9.)
(7)
was poor.
It was extremely hot in the ACDC and the ventilation
(Id.)
(8)–(10)
The
ACDC
staff
were
inadequately
trained,
pretrial detainees were not allowed face-to-face visits, and the
phones in the cell blocks were turned off for periods of time as
a means of punishment.
(Id. at 9–10.)
(11) The ACDC grievance system was inadequate.
Thomas did
not receive a response to many of his grievances, and inmates
did not receive a carbon copy of their filed grievances.
(Id.
at 10.)
Thomas has sued Defendants in their individual, but not
official, capacities.
(Id. at 1.)1
He seeks damages and relief
in the form of the installation of electronic checkpoints within
the cell blocks every few yards, for call boxes and cameras to
be tested at the start of every shift, and for call boxes to be
1
While Thomas’ failure to sue Defendants in their official capacity
has implications for some of his allegations, the court dispenses with
any such discussion because his claims fail nevertheless.
3
installed in each cell of the jail.
Thomas identifies five grievances he filed with the ACDC
regarding the conditions there.
(Id. at 2.)
These grievances
were filed September 17, 2010, December 30, 2010, January 19,
2011,
February
2,
2011,
and
August
1,
2011.
(Doc.
34-7.)
However, he acknowledges that he did not exhaust his remedies as
to the grievances filed on January 19, 2011, and February 2,
2011.
II.
(Doc. 15 at 19.)
ANALYSIS
A.
Standard of Review
Defendants have moved for judgment on the pleadings, and,
in the alternative, for summary judgment.
(Doc. 32.)
With all
parties having completed discovery, and with each side having
presented dueling affidavits and other documentary evidence, the
court will treat Defendants’ motion as one for summary judgment.
See
Fed.
R.
contemplates
judgment
Civ.
P.
converting
motion,
“[a]ll
12(d)
a
(stating
Rule
parties
12(c)
must
that
where
motion
to
be
given
a
a
a
court
summary
reasonable
opportunity to present all the material that is pertinent to the
motion”); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (“[T]he
term ‘reasonable opportunity’ requires that all parties be given
‘some indication by the court . . . that it is treating the
. . .
motion
as
a
motion
for
4
summary
judgment,
with
the
consequent
right
in
the
opposing
party
to
file
counter
affidavits or pursue reasonable discovery.’” (quoting Johnson v.
RAC
Corp.,
491
F.2d
510,
513
(4th
Cir.
1974))
(internal
quotation marks omitted)).
A court must grant a motion for 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.”
Fed. R. Civ. P. 56(a).
The moving party bears the burden of
establishing that no genuine dispute of material fact remains.
Where, as here, the non-moving party has the burden of proof on
a claim, the moving party is entitled to summary judgment if it
demonstrates
that
the
non-moving
party’s
evidence
is
insufficient to establish an essential element of his claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 325 (1986).
the
purposes
of
this
motion,
the
court
regards
For
Thomas’
statements as true and draws all inferences in his favor.
See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But
he must establish more than the “mere existence of a scintilla
of evidence” to support his position.
evidence
is
“merely
colorable,
or
Id. at 252.
is
not
probative, summary judgment may be granted.”
If the
significantly
Id. at 249–50.
Ultimately, summary judgment is appropriate where the non-movant
fails to offer evidence on which a reasonable fact-finder could
5
find for him.
B.
Id. at 252.
Thomas’ § 1983 Claims
As a pretrial detainee during the relevant time period,
Thomas could not, consistent with due process, be subjected to
“punishment.”
Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
However, “not every inconvenience encountered during pretrial
detention amounts to ‘punishment’ in the constitutional sense.”
Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988).
“To
establish
his
that
a
particular
condition
or
restriction
of
confinement is constitutionally impermissible ‘punishment,’ the
pretrial detainee must show either that it was (1) imposed with
an expressed intent to punish or (2) not reasonably related to a
legitimate nonpunitive governmental objective, in which case an
intent to punish may be inferred.”
Id.
Thomas’ claims are subject to the administrative exhaustion
requirement of the Prison Litigation Reform Act (“PLRA”), 42
U.S.C. §
suits
1997e(a).
about
prison
This requirement
life,
“applies to all inmate
whether
they
involve
general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.”
U.S. 516, 532 (2002).
Porter v. Nussle, 534
Under the PLRA, pretrial detainees count
as “prisoners” who must exhaust their administrative remedies
before filing claims under § 1983.
6
See 42 U.S.C. § 1997e(h)
(“[T]he term ‘prisoner’ means any person . . . detained in any
facility who is accused of
. . . .”).
Thomas
was
. . .
violations of criminal law
therefore
required
to
exhaust
his
administrative remedies prior to filing this lawsuit.
1.
Thomas
with
respect
Lice allegations
makes
to
allegations
the
against
Licenator
only
incident.
Defendant
Hopkins
Hopkins
states
by
affidavit that on one occasion in 2010 he brought an aerosol can
of Licenator into the cell block where Thomas was housed.
35
at
2.)
He
did
so
because
experiencing an outbreak of lice.
the
(Id.)
detention
center
(Doc.
was
Licenator was one of
several methods used at the detention center to combat the lice.
(Id.)
Hopkins was following the orders of his superiors when he
brought the can into the cell block.
(Id.)
He further states
that when inmate Brandon Smith was booked into ACDC, Hopkins did
not know that the inmate had lice.
Hopkins says that it was
later brought to his attention when several inmates threatened
to assault inmate Smith because he had lice.
(Id.)
When he
learned this, Hopkins personally escorted inmate Smith to the
medical unit for treatment.
(Id.)
Hopkins further states that he did not “personally spray
the Licenator in any portion of” the cell block.
Rather,
he
made
it
available
for
7
inmates
to
(Id. at 3.)
use
on
their
clothing and bedding, as the instructions on the can allowed.
(Id. at 2–3.)
Hopkins states that he remembers Thomas taking
the can of Licenator from another inmate and spraying himself
with the contents from head to toe.
went
to
the
himself.
shower
(Id.)
stall
and
Hopkins
(Id. at 3.)
washed
also
the
states
Thomas then
substance
that
the
off
cell
of
block
dayroom, where he left the product, is a large open area that is
located directly in front of the individual cells.
The dayroom
is approximately thirty-two feet long and thirty-two feet wide
with a sixteen-foot high ceiling.
The cells are separated from
the dayroom by open-barred doors and not solid doors.
(Id.)
Thomas’ version of these events set out in his unsworn (but
notarized)
complaint
differs
from
Hopkins’
version.
Thomas
complains that Hopkins sprayed the Licenator in the cell block
area
and
allowed
it
to
be
sprayed
by
other
inmates
without
relocating the inmates or turning the ventilation system on for
a sufficient period of time.
He also alleges that Hopkins knew
that inmate Smith had lice when he put Smith in Thomas’ cell
block.
(Compl. at 4–5.)
However,
dispute
the
Specifically,
in
his
affidavit
pertinent
Thomas
has
(Doc.
portions
not
68-1)
of
created
Thomas
Hopkins’
a
genuine
does
not
affidavit.
dispute
of
material fact on the issue whether Hopkins intended to punish
8
him, either expressly or by inference, by use of the Licenator
spray
or
exposure
to
Smith.
Regarding
express
intent,
the
uncontroverted evidence is that the intent of Hopkins was to
combat or prevent the spread of lice in the detention center
following the discovery of an inmate who was infested with lice
– a legitimate, nonpunitive governmental objective.
Even if
Thomas’ evidence showed that Hopkins’ methods were unwise or
even negligent, it fails to show an express intent to punish or
produce an inference thereof.
Regarding the intentional exposure to lice, Thomas presents
no
evidence
of
Hopkins’
intent
to
contaminate
block, full of inmates, with lice.
removed
Smith
when
alerted
to
Thomas’
cell
That Hopkins immediately
his
lice
contamination
and
provided the inmates with a means to delouse themselves shows
that
Thomas’
bald
conclusions
of
malice
reasonable factfinder could find otherwise.
are
false,
and
no
This claim will be
dismissed.
2.
There
is
Assault of October 23, 2010
no
dispute
that
while
Thomas
was
in
pretrial
detention, another inmate, Raymond Joiner, assaulted him.
37-1 at 1–2; Doc. 68-1 at 7–9.)
held
that
prison
officials’
(Doc.
However, the Supreme Court has
negligent
failure
to
protect
an
inmate from assaults by other prisoners is not actionable, as
9
“the protections of the Due Process Clause, whether procedural
or substantive, are just not triggered by lack of due care by
prison
officials.”
Davidson
v.
Cannon,
474
U.S.
344,
348
(1986); see also id. (“Far from abusing governmental power, or
employing it as an instrument of oppression, respondent Cannon
mistakenly
believed
that
the
situation
was
not
particularly
serious, and respondent James simply forgot about the note.”).
Deliberate indifference does not set a low bar:
[T]he
Constitution
is
designed
to
deal
with
deprivations of rights, not errors in judgment, even
though such errors may have unfortunate consequences.
This is precisely why the Supreme Court has seen fit
to stress that deliberate indifference requires “more
than ordinary lack of due care for the prisoner’s
interests or safety.” . . .
To lower this threshold
would thrust federal courts into the daily practices
of local police departments.
Grayson v. Peed, 195 F.3d 692, 695–96 (4th Cir. 1999) (quoting
Whitley v. Albers, 475 U.S. 312, 319 (1986)).
To
show
“introduce
actual
safety.”
deliberate
evidence
knowledge
of
indifference,
suggesting
an
that
excessive
the
risk
a
plaintiff
prison
to
the
must
official
had
plaintiff’s
Danser v. Stansberry, No. 13-1828, ___ F.3d ___, 2014
WL 2978541, at *5 (4th Cir. July 3, 2014).
In other words, the
prison official “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists,
and
he
must
also
draw
10
the
inference.”
Farmer
v.
Brennan, 511 U.S. 825, 837 (1994).
An officer’s failure to
alleviate a risk that he should have recognized, but did not,
will not give rise to a claim.
Id. at 838.
Thomas has not produced any evidence creating a genuine
dispute
of
fact
as
to
whether
a
Defendant
was
deliberately
indifferent to Thomas’ safety in connection with the assault.
There
is
no
indicating
evidence
a
that
substantial
any
risk
Defendant
of
was
serious
aware
harm
to
of
facts
Thomas
by
inmate Joiner, nor is there any evidence that officers knew of a
substantial
risk
of
harm
cameras or call boxes.
his
unverified
to
Thomas
from
the
arrangement
of
Although Thomas originally suggested, in
complaint,
that
Officer
Solomon
had
some
knowledge that Thomas would be assaulted (Compl. at 6–7), Thomas
has
provided
no
evidence
of
such
knowledge.
As
to
any
suggestion that Hopkins may have been involved in the assault,
Thomas now says that “I got clues from Hopkins it may have been
something of his doing but I guess he was just trying to take
credit where it was not due.”
Thomas
appears
to
have
(Doc. 68-1 at 9.)
abandoned
this
allegation.
Moreover,
In
affidavit, he clarified his argument:
I am not saying an officer assaulted me. I am saying
it seemed that way. This claim is not about a plot by
officers, it is about the jail over [the] practice of
poor to no supervision weather [sic] caused by the
faulty electric devices or persons.
11
his
(Id. at 7; see also id. at 9.)2
Thomas similarly argues that it
was negligent for Officer Hopkins to have ever placed the can of
Licenator in the cell block because it was later available for
use as a weapon.
(Id. at 8.)
In a similar recent case, the Fourth Circuit held that
“because the record lacks any evidence that [the officer] knew
that
[a
certain
inmate]
posed
a
particular
danger
to
[the
plaintiff], the record as a matter of law fails to show that
[the officer] must have appreciated that his act of leaving [the
plaintiff] and [the other inmate] together in an unsupervised
area created an excessive risk to [the plaintiff’s] safety on
that basis.”
Danser, 2014 WL 2978541, at *6.
In the present case, there is similarly no evidence of any
knowledge
of
a
specific
danger
unsupervised in the dayroom.
in
later
pleadings
Johnson
knew
that
violent
conduct,
that
Raymond
this
is
to
Thomas
if
he
were
left
To the extent that Thomas contends
the
Alamance
Joiner’s
not
County
criminal
sufficient
Sheriff
history
evidence
Terry
included
that
the
Defendants named in this lawsuit knew of a specific danger to
2
Thomas’ response to the motion for summary judgment has a similar
concession: “You could say that the assault was due to lack of policy
to separate pretrial detainees nonviolent from violent convicts,
however looking at the population data even if you had a block for all
violent convicts you would have to place at least 1 nonviolent
pretrial detainee in that block and vice versa.” (Doc. 67 at 14.)
12
Thomas
or
otherwise
substantial
risk
acted
of
with
serious
deliberate
harm.
indifference
Finally,
the
to
a
cognizable
evidence, as admitted by Thomas, shows that, as soon as prison
officials
became
aware
that
Thomas
had
been
assaulted,
they
provided medical care to him, which included transporting him to
the
local
hospital.
(Doc.
37-1;
Compl.
at
6.)
Therefore,
summary judgment is appropriate.
3.
A
claim
overcrowding
deprivation
indifference
officials.
1991).
Overcrowding
of
unconstitutional
requires
of
to
a
a
plaintiff
basic
prison
human
conditions
prison
conditions
due
to
to
show
(1)
a
need
and
(2)
deliberate
on
the
part
of
serious
prison
Williams v. Griffin, 952 F.2d 820, 824 (4th Cir.
Basic human needs are those such as food, warmth, or
exercise.
Wilson v. Seiter, 501 U.S. 294, 304 (1991).
In Thomas’ affidavit, he focuses his overcrowding claim on
the fact that he had to sleep on the floor and near a toilet.
(Doc. 68-1 at 10.)3
In response, Defendants note that inmates
did sleep on mats in the dayroom, although the parties dispute
whether Thomas chose a location under the stairs because it
3
Thomas’ affidavit complains about conditions suffered by other
inmates. Insofar as Thomas proceeds individually, the court does not
consider any others’ claim.
13
provided more privacy.4
Defendants also state that the number of
individuals at the facility was not in excess of the maximum
capacity and that there was space on the dayroom floor for all
of the individuals assigned to the cell block.
Considering
overcrowding,
failed
to
all
both
create
claims
of
separately
a
genuine
the
effects
and
of
the
cumulatively,
issue
of
material
alleged
Thomas
fact
has
on
question whether Defendants violated his due process rights.
the
He
has not pointed to facts showing the deprivation of a basic
human
need.
Moreover,
his
allegations
that
nameless
“high
officials are responsible” for the overcrowding fail to show
that the named Defendants were responsible for or even aware of
the alleged overcrowding.
4.
Thomas
(Doc. 68-1 at 9.)
Strip Searches
complains
that
he
was
strip-searched
between August 2 and August 9, 2010.
four
(Doc. 34-7 at 4.)
claim is not directed at any particular Defendant.
times
The
He does not
claim that any named Defendant subjected him to a strip search,
or that any strip search was conducted in an improper manner.
(Doc. 68-1 at 9.)
The
Supreme
Court
has
held
4
that
“correctional
officials
To the extent that Plaintiff raises other claims in this case that he
also links to overcrowding, the court has considered those specific
contentions as to each of the particular claims set out below.
14
must be permitted to devise reasonable search policies to detect
and deter the possession of contraband in their facilities.”
Florence v. Bd. of Chosen Freeholders of Burlington, 132 S. Ct.
1510,
1517
(2012).
This
rule
gives
consideration
to
the
discretion prison officials need to do their jobs:
The task of determining whether a policy is reasonably
related to legitimate security interests is peculiarly
within the province and professional expertise of
corrections officials . . . [and] in the absence of
substantial evidence in the record to indicate that
the officials have exaggerated their response to these
considerations courts should ordinarily defer to their
expert judgment in such matters.
Id. (citations and internal quotations marks omitted).
In
the
present
case,
Defendant
Porcher
states
in
his
affidavit that during this time period, August 4 to August 10,
detention officers detected the smell of marijuana in Thomas’
cell block.
(Doc. 34 at 4.)
He refers to incident reports
which show that officers were searching for contraband during
this
time.
(Doc.
34-3.)
Besides
failing
to
allege
any
misconduct by any of the named Defendants, Thomas provides no
“substantial
evidence”
that
any
correctional
official
“exaggerated” his or her response to this legitimate security
interest.
Thomas
were
The evidence thus indicates that the searches of
reasonably
related
to
a
legitimate,
non-punitive
governmental objective and did not violate Thomas’ due process
15
rights.
5.
Thomas
Soap
complains
that
he
during his detention at ACDC.
was
not
given
sufficient
soap
He claims that soap was passed
out once per week, but he was given one-ounce packages rather
than bars of soap.
Thomas has not submitted any evidence to
show that this caused the deprivation of a basic human need or
resulted in any physical harm.
See Williams, 952 F.2d at 824.
He also has not shown, either directly or by inference, that any
Defendant intended to punish him by limiting the amount of soap
available to him.
Martin, 849 F.2d at 870.
Detainees, like
inmates, “cannot expect the amenities, conveniences and services
of a good hotel.”
Harris v. Fleming, 839 F.2d 1232, 1235 (7th
Cir. 1988).
6.
Failure to Conduct Medical Screenings
Thomas complains that detention officers failed to conduct
medical
screenings
on
incoming
prisoners.
In
response,
Defendants note that Thomas was given a medical screening on
intake and that he may not raise claims on behalf of others.
In
his affidavit, Thomas clarifies this claim, stating that the
failure to conduct proper medical screening led to him being
subjected to the Licenator spray and being assaulted.
1 at 11.)
(Doc. 68-
However, Thomas has not produced any evidence that
16
any
Defendant
failed
to
conduct
medical
screenings.
Each
Defendant testifies in his affidavit that when he was working as
the booking officer, he always completed medical screenings on
new, incoming inmates, and Thomas has produced no evidence to
the contrary.
7.
Therefore, this claim will be dismissed.
Heat and Ventilation
Thomas alleges that it was too hot in the ACDC and that the
ventilation was poor.
In his affidavit, he states that “the
crowd and poor sanitation causes the bad ventilation and the
heat is a product of all the people in one spot.
are to blame for this.”
failed
to
connect
his
(Doc. 68-1 at 11.)
claim
to
any
High officials
However, Thomas has
named
Defendant.
In
addition, his grievance with respect to heat related to a period
of time in January 2011 when Thomas complained that the heater
was running too much,
bringing the temperature up to
eighty
degrees by the afternoon, and in response to the grievance,
maintenance personnel were called to address and monitor the
heater.
As
to
this
claim,
Thomas
has
not
pointed
to
any
evidence of deliberate indifference or that this condition of
confinement caused a deprivation of a basic human need.
Williams, 952 F.2d at 824.
See
Thomas also concedes that he failed
to exhaust his administrative remedies on this claim (Doc. 15 at
19), in violation of 42 U.S.C. § 1997e(a).
17
This claim will be
dismissed.
8.
Inadequate Training
Thomas also alleges that the staff is inadequately trained
and that this has caused him permanent problems.
In
his
affidavit,
inadequate
fails
to
states
training
and
(Doc.
68-1
officials.”
allegation
he
against
produce
a
that
at
named
any
that
overcrowding
it
is
11.)
the
Again,
Defendant.
evidence
(Compl. at 9.)
that
has
fault
this
caused
of
is
“high
not
Additionally,
inadequate
Thomas
training
resulted in a violation of his due process rights.
an
has
Therefore,
this claim will be dismissed.
9.
Face-to-Face Visitation
Thomas complains that pretrial detainees are not allowed
face-to-face
visits.
In
his
affidavit,
he
states
that
electronic means of visiting are used at ACDC.
(Doc. 68-1 at
11.)
that
Defendant
Porcher
states
by
affidavit
pretrial
detainees, just as any other inmate, are not allowed contact
visits
with
entering
the
accomplished
family
jail.
by
and
friends
(Doc.
closed
34
circuit
to
at
prevent
7.)
The
television.
contraband
from
visitations
are
Thomas
not
has
produced any evidence that this method of conducting visitation
violates his due process rights.
As the Fourth Circuit recently observed, “‘the Constitution
18
does
not
visits,’
require’
when
pretrial
detainees
administrators
have
to
be
allowed
exercised
‘contact
their
sound
discretion in determining that such visits ‘will jeopardize the
security of the facility.’” Williams v. Ozmint, 716 F.3d 801,
807 (4th Cir. 2013) (quoting Block v. Rutherford, 468 U.S. 576,
589 (1984)).
Therefore, failing to show a violation of any
constitutional right, this claim will be dismissed.
10.
Phone Privileges
Thomas makes no allegation in his complaint that he has
actually been denied the use of a phone by any of the named
Defendants, only that Defendant Porcher “acknowledges phones are
turned off as a form of punishment.”
(Compl. at 9.)
Thomas
states in his affidavit that this has affected his “liberty and
ability to contact witnesses before trial.”
(Doc. 68-1 at 11.)
Defendant Porcher states in his affidavit that the cellblock phones may be shut off for limited periods of time for
security reasons or to restore order and discipline, but are
then
turned
available
on.
for
use
(Doc.
from
34
at
8:00
8.)
a.m.
The
until
phones
10:30
are
usually
p.m.
(Id.)
Written communications, including those with attorneys, are not
affected by this policy.
(Id. at 9.)
There is no evidence of any intent to punish Thomas by
limiting
his
telephone
access,
19
and
the
limitations
were
reasonably related to legitimate governmental purposes.
Under
these circumstances, Thomas has not produced any evidence of a
due process violation.
See Washington v. Reno, 35 F.3d 1093,
1100 (6th Cir. 1994) (“Nevertheless, an inmate has no right to
unlimited
telephone
use.”
(citation
and
quotation
marks
omitted)); Valdez v. Rosenbaum, 302 F.3d 1039, 1045–47 (9th Cir.
2002); Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988).
Thomas
also
concedes
administrative
remedies
violation
42
that
of
on
U.S.C.
he
this
failed
claim
to
(Doc.
§ 1997e(a).
This
exhaust
15
at
claim
his
19),
in
will
be
dismissed.
11.
Grievance System
Thomas complains generally about the “inadequate” grievance
system due to the lack of responses to some of his grievances.
(Compl. at 10.)
He states in his affidavit that the system
“could work if the jail was not overcrowded.”
12.)
Adams
(Doc. 68-1 at
There is no constitutional right to a grievance process.
v.
Rice,
40
F.3d
72,
75
(4th
Cir.
1994)
(“[T]he
Constitution creates no entitlement to grievance procedures or
access
to
state.”).
any
such
There
is
procedure
also
no
voluntarily
evidence
or
established
contention
by
a
that
Defendants intended to punish Thomas by denying him access to
the grievance system.
Therefore, the fact that the grievance
20
system at ACDC may have been, in Thomas’ view, “inadequate,”
does not state a constitutional violation.
C.
Defendants’ Motions to Strike
1.
First Motion to Strike (Doc. 78)
Defendants have moved to strike certain portions of Thomas’
response
to
Defendants’
Specifically,
Defendants
motion
seek
to
for
summary
strike
those
judgment.
portions
of
Thomas’ responsive brief that are in excess of the thirty pages
of argument allowed by the court’s prior briefing order.
62.)
(Doc.
Defendants later modified their request to exclude Thomas’
affidavit (Doc. 68-1 at 7–19) from their first motion to strike.
(Doc. 88 at 3.)
In response to his request, the court granted Thomas leave
to file a
thirty-page response (an increase from the normal
twenty-page limit) to Defendants’ motion for summary judgment.
Supporting
exhibits
were
not
included
in
this
limitation.
Contrary to this order, Thomas filed approximately 530 pages of
material,
with
about
175
of
those
pages
being
handwritten
argument and 34 pages being heavily annotated exhibits.
remaining
321
pages
are
exhibits
without
any
The
handwritten
commentary or explanation.
Thomas’
submission
grossly
allowed for his response brief.
21
exceeds
the
page
limitation
Even considering its content,
however, it is readily apparent that none of the excess argument
would
change
any
of
the
court’s
conclusions.
Therefore,
Defendants’ motion to strike (Doc. 78) is denied as moot.
2.
Second Motion to Strike (Doc. 86)
In their second motion to strike, Defendants move to strike
Thomas’ surreply brief.
absent leave of court.
(Doc. 82.)
Surreplies are not allowed
See M.D.N.C. Local Rule 7.2; DiPaulo v.
Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010) (“Parties do
not have the right to file a surreply.”).
As in DiPaulo, the
court will not strike the surreply but also will not consider it
for
purposes
of
this
summary
judgment
motion.
As
with
the
excess briefing addressed above, it is also apparent that, even
if
considered,
conclusions
set
the
surreply
would
not
change
out
above.
Accordingly,
any
Defendants’
of
the
second
motion to strike (Doc. 86) is also denied.
D.
Thomas’ Additional Motions
1.
Motion to Increase Page Limit (Doc. 92)
In his motion to increase page limit, Thomas asks for an
increase in the number of pages allowed for him to respond to
Defendants’ motion for summary judgment.
As pointed out above,
Thomas has already greatly exceeded the allowed number of pages,
and
even
if
the
additional
pages
are
considered,
those
additional pages would not affect the court’s conclusions set
22
out above.
To the extent that Thomas is seeking leave to file
further, additional information, there is no need to allow it
given the volume of information already filed.
The request is
therefore denied.
2.
Thomas
Motion for Extension of Discovery (Doc. 93)
seeks
to
extend
the
discovery
period
to
information related to “population data and the assault.”
93 at 1.)
gather
(Doc.
However, he fails to show specifically how this
information
would
be
relevant
to
his
claims.
His
similar
requests have been denied in the past, and this latest request
is likewise denied.
3.
Motion for in Camera Review (Doc. 97)
Thomas seeks in camera review of Raymond Joiner’s juvenile
record.
Thomas’ previous requests have been denied, and there
is no reason to believe that the sealed juvenile record was
either known to Defendants or relevant to the claims raised.
Thus, the request is denied.
E. Sealed Documents
Finally,
medical
Defendants
records
under
previously
seal.
filed
Thomas
certain
of
subsequently
Thomas’
filed
his
medical records as part of his response, without a request for
sealing.
parties
By Order dated September 2, 2014, the court gave the
additional
time
to
justify
23
any
continued
sealing.
Thomas
has
since
confidentiality.
acknowledged
(Doc. 100.)
that
he
waives
his
right
to
Therefore, Defendants’ exhibit
labeled “Plaintiff’s Inmate Medical Records” (Doc. 39) will be
unsealed.
III. CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ motion for summary
judgment
(Doc.
32)
be
GRANTED,
that
Defendants’
motions
to
strike (Doc. 78, Doc. 86) be DENIED as moot, and that Thomas’
motions (Doc. 92, 93, and 97) be DENIED.
IT IS FURTHER ORDERED that the Clerk is directed to unseal
Defendants’ Exhibit (Doc. 39) filed January 9, 2014.
/s/
Thomas D. Schroeder
United States District Judge
September 29 , 2014
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?