LATTIMORE v. HERRON et al

Filing 4

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/14/2014, that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation.FURTHER that Pla intiff's trust officer shall be directed to pay to the Clerk of this Court 20% of all deposits to his account starting with the month of February, 2014, and thereafter each time that the amount in the account exceeds $10.00 until the $400.00 filing fee has been paid. If an inmate has been ordered to make Prison Litigation Reform Act payments in more than one action or appeal in the federal courts, the total amount collected for all cases cannot exceed 20 percent of the inm ate's preceding monthly income or trust account balance, as calculated under 28 U.S.C. § 1915(b)(2). FURTHER that Plaintiff's Motion for Appointment of Counsel [Doc. # 3 ] is DENIED. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A for failing to state a claim upon which relief may be granted. (Taylor, Abby)

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

DON ORLANDO LATTIMORE,
Plaintiff,
v.
JOHN OR JANE DOE, et al.,
Defendant(s).

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1:13CV692

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Don Orlando Lattimore, submitted a pro se complaint under 42 U.S.C.
§ 1983 and requests permission to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a). Plaintiff names several prison officials as Defendants. He alleges that an unknown
official altered his prison records to show that he was to be housed in “close” custody when
he should have been housed in “medium” custody. Plaintiff contends that the other
Defendants then refused to correct the problem when notified by Plaintiff. Plaintiff contends
that this violates his due process rights and his right to be free from cruel and unusual
punishment under the United States Constitution. He seeks damages and equitable relief.
Because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer
or employee of a governmental entity,” this Court has an obligation to “review” this
complaint. 28 U.S.C. § 1915A(a). “On review, the court shall . . . dismiss the complaint,

or any portion of the complaint, if [it] – (1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b).
Applicable to this case, a plaintiff “fails to state a claim upon which relief may be
granted,” 28 U.S.C. § 1915A(b)(1), when the complaint does not “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(internal citations omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). This standard “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.1 The Court may also anticipate affirmative
defenses that clearly appear on the face of the complaint. Nasim v. Warden, Md. House of
Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc). ; Todd v. Baskerville, 712 F.2d 70, 74 (4th
Cir. 1983). For the reasons that follow, the Complaint should be dismissed pursuant to 28
U.S.C. § 1915A(b) because fails to state a claim on which relief may be granted.
1

Although the Supreme Court has reiterated that “[a] document filed pro se is to be liberally construed and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted), the United States
Court of Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’s requirement that a pleading
contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal
quotation marks omitted) (applying Twombly standard in dismissing pro se complaint); accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent
standards than formal pleadings drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’ that
permits the court to infer ‘more than the mere possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal,
556 U.S. at 697, respectively)).

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As set out above, Plaintiff’s claim is that he is being held at the wrong custody level
in violation of his due process rights and constitutes cruel and unusual punishment. In
reviewing this contention, the Court notes that the due process clause applies if Defendants
deprived Plaintiff of a liberty or property interest. Sandin v. Conner, 515 U.S. 472 (1995).
However, a prison inmate has no liberty or property interest in a particular prison location
or custody classification, even where disciplinary segregation is involved, unless the inmate
can demonstrate that the restraints “‘impose[] atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’” Bevarati v. Smith, 120 F.3d 500, 502
(4th Cir. 1997) (quoting Sandin, 515 U.S. at 484). Plaintiff makes no such allegations here.
In fact, Plaintiff does not even allege that he is in segregation, only that he has a higher
custody level in the general population than he should. He sets out no facts that could
support a finding that Defendants created an “atypical and significant hardship” for him.
As for Plaintiff’s cruel and unusual punishment claim, his custody level does not
satisfy the very high standards for cruel and unusual punishment because
[i]n order to establish that[he] has been subjected to cruel and unusual
punishment, a prisoner must prove (1) that “the deprivation of [a] basic human
need was objectively ‘sufficiently serious,’ ” and (2) that “ subjectively ‘the
officials act[ed] with a sufficiently culpable state of mind.’ ” Strickler v.
Waters, 989 F.2d 1375, 1379 (4th Cir.1993) (second alteration in original)
(quoting Wilson, 501 U.S. at 298, 111 S.Ct. 2321). Only extreme deprivations
are adequate to satisfy the objective component of an Eighth Amendment
claim regarding conditions of confinement. See Hudson, 503 U.S. at 8-9, 112
S.Ct. 995. In order to demonstrate such an extreme deprivation, a prisoner
must allege “a serious or significant physical or emotional injury resulting
from the challenged conditions,” Strickler, 989 F.2d at 1381, or demonstrate
a substantial risk of such serious harm resulting from the prisoner's exposure
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to the challenged conditions, see Helling, 509 U.S. at 33-35, 113 S.Ct. 2475.
The subjective component of an Eighth Amendment claim challenging the
conditions of confinement is satisfied by a showing of deliberate indifference
by prison officials. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970,
128 L.Ed.2d 811 (1994). “[D]eliberate indifference entails something more
than mere negligence ... [but] is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge that harm
will result.” Id. at 835, 114 S.Ct. 1970. It requires that a prison official actually
know of and disregard an objectively serious condition, medical need, or risk
of harm. See id. at 837, 114 S.Ct. 1970; Shakka v. Smith, 71 F.3d 162, 166
(4th Cir.1995).
De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003). Even if Plaintiff is correct that
he is being held at the wrong custody level in the general population, this would not amount
to cruel and unusual punishment. His Complaint does not state any viable claim for relief.2
As a result, Plaintiff’s request to proceed in forma pauperis should not be allowed,
with the exception that in forma pauperis status shall be granted for the sole purpose of
entering this Order and Recommendation.
Plaintiff has submitted the Complaint for filing, however, and, notwithstanding the
preceding determination, § 1915(b)(1) requires that he make an initial payment toward the
filing fee. However, Plaintiff’s in forma pauperis application reflects that no funds have
been deposited into his prison trust account during the past six months. Therefore, the Court

2

The Court notes that statutorily-created “good-time credits” may create a liberty interest in a
“shortened prison sentence.” Sandin, 515 U.S. at 477 (citing Wolff v. McDonnell, 418 U.S. 539, 557
(1974)). However, to the extent Plaintiff’s challenge would result in the restoration of good-time credits,
Plaintiff’s allegations are not proper under § 1983. Instead, he must request the proper forms and file a
habeas action under 28 U.S.C. § 2254. See Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (“Because an action
for restoration of good-time credits in effect demands immediate release or a shorter period of detention, it
attacks ‘the very duration of physical confinement’ and thus lies at ‘the core of habeas corpus.’” (internal
citations and ellipses omitted) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)).

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will not assess a fee, but will instead order that payments be deducted as funds become
available.
Finally, Plaintiff also filed a Motion for Appointment of Counsel [Doc. #3]. That
Motion will be denied in light of the recommendation that the case be dismissed.
IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole
purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s trust officer shall be directed to pay to
the Clerk of this Court 20% of all deposits to his account starting with the month of February,
2014, and thereafter each time that the amount in the account exceeds $10.00 until the
$400.00 filing fee has been paid.
If an inmate has been ordered to make Prison Litigation Reform Act payments in more
than one action or appeal in the federal courts, the total amount collected for all cases cannot
exceed 20 percent of the inmate’s preceding monthly income or trust account balance, as
calculated under 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of Counsel
[Doc. #3] is DENIED.

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IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A
for failing to state a claim upon which relief may be granted.
This, the 14th day of January, 2014.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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