JOINER V. DEPARTMENT OF PUBLIC SAFETY et al
Filing
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MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/25/2013; that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation. FURTHER 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 November, 2013, 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). RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A for being frivolous or for failing to state a claim upon which relief may be granted, as well as for seeking monetary relief against a defendant who is immune from such relief. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RAYMOND DAKIM HARRIS JOINER,
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Plaintiff,
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v.
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DEPARTMENT OF PUBLIC SAFETY, et al., )
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Defendant(s).
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1:13CV933
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Raymond Dakim Harris Joiner, a prisoner of the State of North Carolina and
frequent pro se litigant, 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. § l915(a). Plaintiff names
the North Carolina Department of Public Safety, Piedmont Correctional Institution,
Registered Nurse Jennifer Harris, and Correct Care Solution as Defendants. (Docket Entry
1, § III.) Despite filing nineteen other cases in this Court during the past four years, serving
time in a North Carolina prison, and suing Defendants allegedly located in North Carolina
over events occurring in North Carolina, Plaintiff filed this Complaint in the United States
District Court for the District of South Carolina, which transferred the matter here prior to
screening the Complaint or ruling on the in forma pauperis request. (Docket Entry 11.) For
the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C. § 1915A(b)
because it is frivolous, because it fails to state a claim on which relief may be granted, and
because it seeks monetary damages from a defendant with immunity from such relief.
Legal Background
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).
As to the first basis for dismissal, the United States Supreme Court has explained that
“a complaint, containing as it does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989). “The word ‘frivolous’ is inherently elastic and not susceptible to categorical
definition. . . . The term’s capaciousness directs lower courts to conduct a flexible analysis,
in light of the totality of the circumstances, of all factors bearing upon the frivolity of a
claim.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some
internal quotation marks omitted).
The Supreme Court further has identified factually frivolous complaints as ones
involving “allegations that are fanciful, fantastic, and delusional. As those words suggest,
a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are judicially noticeable facts
available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal
citations and quotation marks omitted). In making such findings, this Court may “apply
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common sense.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995)
(en banc).
Alternatively, 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) (emphasis added) (internal citations omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). 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, 64 F.3d at 955; Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir.
1983).
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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The final ground for dismissal under 28 U.S.C. § 1915A(b)(2) generally applies to
situations in which doctrines established by the United States Constitution or at common law
immunize governments and/or government personnel from liability for monetary damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing
sovereign immunity of states and state officials under Eleventh Amendment); Pierson v. Ray,
386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and
common-law immunity doctrines, such as judicial, legislative, and prosecutorial immunity).
Cf. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are
theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and
special defenses, available only to public officials, preclude or severely limit the damage
remedy”).
The Complaint
The Complaint names four Defendants: (1) Piedmont Correctional Institution, a state
prison formerly housing Plaintiff, (2) the North Carolina Department of Public Safety, (3)
Jennifer Harris, a nurse apparently employed at Piedmont Correctional, and (4) Correct Care
Solution. (Docket Entry 1, § III.) Plaintiff raises a variety of complaints which are loosely
related and only partially involve the named Defendants. He alleges first that he “was forced
into a contract with the courts under common law that is not constitutional and without any
written consent” resulting in his conviction and imprisonment. (Id., § IV.) He then arrived
at Piedmont Correctional on July 2, 2013. (Id.) Soon thereafter, Defendant Harris attempted
to give him a tuberculosis test and, when Plaintiff objected, someone told him that the prison
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would employ the use of force if he refused the test. (Id.) A prison grievance filed by
Plaintiff on July 10, 2013, reflects that Plaintiff thereafter verbally agreed to the test, but
refused to sign any paperwork. (Id., Exs.)
Plaintiff next asserts that he wrote grievances on July 22, 2013, and July 31, 2013,
“making it clearly known that [he] would like to secure [his] person under the 4th
Amendment” to the United States Constitution by filing Uniform Commercial Code
(hereinafter UCC) forms UCC 1 and/or UCC 1Ad. (Id., § IV.) He requested that prison
officials either release from his trust fund, or simply provide him with, $38.00 to allow him
to file these forms. (Id.) Prison officials responded that such matters fell outside Department
of Public Safety control. (Id., § IV and Exs.) The refusal to allow or help Plaintiff file the
forms appears to represent the central focus of Plaintiff’s Complaint.
Plaintiff also contends that Defendants attempted to force him to submit to a urine test.
(Id., Ex. IV.) The Complaint does not allege the purpose or the date of that test, but does
state that Plaintiff filed a grievance about the urine and the tuberculosis test on July 10, 2013.
(Id., § IV.) This conflicts with his exhibits which show that his grievance on July 10, 2013,
addressed only the tuberculosis test. (Id., Exs.) The first and only mention of the urine test
in Plaintiff’s grievances appears in his form dated July 31, 2013, which mainly focuses on
the UCC forms issue. (Id.) Other paperwork provided by Plaintiff reflects that an officer
requested that Plaintiff take the urine test on July 14, 2013, but that Plaintiff refused, leading
to a disciplinary violation, with Plaintiff receiving 60 days of segregated confinement and
six months of limited draw on his trust account as punishment. (Id.) Plaintiff alleges that an
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unidentified person told him that force would be used if he refused to take the urine test (id.,
§ IV), but, given that no one actually forced Plaintiff to take a urine test, Plaintiff’s claim
actually appears to turn on the contention that Defendants wrongfully disciplined him for
refusing to take the urine test.
Finally, Plaintiff states that his “other further claim[s] [are] racketeering,
embezzlement, extortion, fraud, invasion of privacy, and enforcement of an ex post facto
law.” (Id.) He sets out no facts that clearly relate to these types of claims. (See id.)
As relief for his claims, Plaintiff seeks a declaration that Defendants’ acts violated his
constitutional rights, compensatory damages in the amount of $70,000 as to each Defendant,
punitive damages in the amount of $40,000 as to each Defendant, and an order that his
current prison, Tabor Correctional Institution, issue him the UCC forms he seeks and the
$38.00 to process them. (Id., § V.)
Discussion
As an initial matter, portions of the Complaint fail as a matter of law because Plaintiff
may seek to undermine his conviction or sentence with some of his allegations. In addition
to his allegation set out earlier concerning forced contracting with the courts, he also states
without explanation that his “rights [were] strip[ped] and [he] was found guilty at trial” and
that “county courts are not constitutional courts.” (Id., § IV.) To the extent Plaintiff
challenges his conviction or sentence, he may not do so without first showing that such
conviction or sentence has been reversed on direct appeal, expunged by Executive Order,
declared invalid by a state tribunal, or, finally, called into question by a federal court through
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the issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff
fails to make any such showing and the Court should dismiss any attack on his conviction
or sentence for this reason.
Next, by designating the North Carolina Department of Public Safety and a state
prison as Defendants, Plaintiff effectively has sued the State of North Carolina; however,
neither the State nor it agencies constitute “persons” subject to suit under § 1983. Will v.
Michigan Dept. of State Police, 491 U.S. 58 (1989). Further, even if Plaintiff sued a proper
representative of the State, the Eleventh Amendment to the United States Constitution would
limit any relief to a prospective injunction to remedy an ongoing violation of federal law.
McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). Plaintiff’s only request for
injunctive relief asks that the Court enter an order forcing his current prison to enable him
to file the UCC forms he requests and to provide him with the required processing fees.
Even if Plaintiff named a proper representative responsible for the operations at his current
facility, that request would fail as a matter of law. The forms Plaintiff seeks to file are
designed for use by creditors to perfect a security interest in the property of a debtor, thereby
“securing” the creditor’s interest. Plaintiff intends to use them to “secure his person and
property” and refers to the Fourth Amendment’s right to be “secure.” “Secure” and
“security” as used in the UCC have entirely different meanings from “secure” as used in the
Fourth Amendment. The UCC forms Plaintiff seeks have absolutely nothing to do with
protecting his Fourth Amendment rights. Thus, his request for injunctive relief, as well as
his claim generally regarding the UCC forms, is frivolous in the sense that “it lacks an
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arguable basis either in law or in fact,” Neitzke, 490 U.S. at 325. Any claims against the
Department of Public Safety, as well as Plaintiff’s entire UCC claim, should be dismissed
as frivolous and/or for failing to state a claim for which any relief can be granted.
Plaintiff also names Correct Care Solution as a Defendant, but does not explain what
that entity is or make any allegation against it. Therefore, he states no claim against Correct
Care Solution.
Jennifer Harris thus represents the only potentially viable Defendant currently named
or even vaguely referenced in the Complaint. The only clear allegation against Harris
concerns her attempted performance of the tuberculosis test and, perhaps, the urine test. She
may also be the person who told Plaintiff that force would be used if he refused the tests.
Plaintiff additionally alleges that “a delegation of authority was never produce[d] by the court
to give legal authority” to Harris to perform the tuberculosis test or request Plaintiff’s urine.
(Docket Entry 1, § IV.) None of these allegations states any claim against Harris. The
undersigned Magistrate Judge knows of no federal law requiring a “delegation of authority”
from a court or any similar document for prison authorities to run a tuberculosis or urine test.
Further, tuberculosis is a dangerous and contagious disease which states have a strong
interest in combating in prisons. Karolis v. New Jersey Dept. of Corrections, 935 F. Supp.
523, 527 (D.N.J. 1996). Prisons thus can require tuberculosis testing and compel compliance
by force if necessary. Rhinehart v. Gomez, No. 93-CV3747, 1995 WL 364339, at *4 (N.D.
Cal. June 08, 1995) (unpublished).
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As for urine testing, the Fourth Amendment allows random urine testing for drugs in
prison populations. Lucero v. Gunter, 52 F.3d 874, 877 (10th Cir. 1995). Likewise, prisons
may conduct testing where “reasonably related to legitimate penological interests,” which
include stemming the use of drugs in prison. Thompson v. Souza, 111 F.3d 694, 703 (9th
Cir. 1997). Plaintiff makes no allegation that the request for a urine test in this case did not
fall within these bounds. Instead, he objects to the lack of a “delegation of authority” and
Defendants’ use of a threat of force to attempt to compel testing. As stated above, testing
requires no “delegation of authority.” As for a threat of force, Plaintiff does not allege that
Defendants or other any other persons actually used any force. In fact, his exhibits show
that, ultimately, he did not take the urine test. Therefore, his allegation against Harris at most
involves only a threat of force, which does not state any claim for relief. See Henslee v.
Lewis, 153 F. App’x 178, 180 (4th Cir. 2005) (“Mere threats or verbal abuse by prison
officials, without more, do not state a cognizable claim under § 1983.”). As stated
previously, Plaintiff may contend that prison officials wrongfully punished him for failing
to take the urine test. However, he makes no allegation that Defendant Harris or any other
named Defendant participated in the disciplinary process. He also points to no specific
defect in the disciplinary process and seeks no injunctive relief to mitigate the punishment
imposed as a result to the discipline. In the end, he states no cognizable claim for relief
connected to the urine test.
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Plaintiff’s remaining claims for “racketeering, embezzlement, extortion, fraud,
invasion of privacy, and enforcement of an ex post facto law,” fail to state a claim due to the
lack of any supporting factual matter. Iqbal, 556 U.S. at 678.
As a result, Plaintiff’s request to proceed in forma pauperis should not be
countenanced, with the exception that in forma pauperis status shall be granted for the sole
purpose of entering this Order and Recommendation. Plaintiff submitted the Complaint for
filing, however, and, notwithstanding the preceding determination, § 1915(b)(1) requires that
he make an initial payment. However, the Court will not order any such payment because
it appears from Plaintiff’s in forma pauperis request that he does not have sufficient funds
to make any initial partial payment. Instead, the Court will order only that Plaintiff’s
custodian deduct money for payment of the filing fee should funds become available.
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
November, 2013, 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).
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IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A
for being frivolous or for failing to state a claim upon which relief may be granted, as well
as for seeking monetary relief against a defendant who is immune from such relief.
This, the 25th day of October, 2013.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
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