Roberts v. Perry et al

Filing 14

ORDER re: 1 Complaint (Amended Pleadings due by 3/26/2018). Complaint is dismissed as frivolous. Plaintiff shall have 14 days in which to file Amended Complaint. If Plaintiff fails to file Amended Complaint, this action will be dismissed without further notice. Signed by Chief Judge Frank D. Whitney on 03/09/2018. (Pro se litigant served by US Mail.) (ni)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-385-FDW
JIMMY ALLEN ROBERTS,

)
)
Plaintiff,
)
)
vs.
)
)
FRANK L. PERRY, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1).1 He is proceeding in forma pauperis. See (Doc. No. 7).
I.

BACKGROUND

Pro se Plaintiff Jimmy Allen Roberts, who currently resides at the Craggy Correctional
Center in Asheville, has filed a 117-page civil rights Complaint pursuant to 42 U.S.C. § 1983 and
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) against Secretary of Prisons
Frank L. Perry, and the following employees of Mountain View C.I.: Superintendent of Programs
Carol Buchannan, Mailroom Supervisor Lynn Ollis, Correction Officer Grear, and Administrator
Mike Slagle.
Construing the Complaint liberally and accepting the allegations as true, Plaintiff alleges
that, while he was incarcerated at the Mountain View C.I., he was thwarted from beginning a
weekly Messianic Faith Group by Defendant Buchannan and her “underling” Chad Green, who is

1

Plaintiff was granted leave to file an Amended Complaint but he declined to do so. (Doc. No. 12). As
Plaintiff was advised by the Court, initial review with therefore go forward on the original Complaint. (Doc. No.
13).

1

not named as a defendant in the Complaint. On May 17, 2017, Plaintiff told Buchannan and Green
that the requisite number of inmates wanted to enroll in the Messianic Faith Group to begin a
weekly educational class pursuant the Educational Section of the Messianic Appendix currently
recognized by NC DPS. (Doc. No. 1 at 5). Plaintiff proposed that Inmate James Keaton, who was
approved to conduct previous Passover celebrations, would serve as the Faith Helper, and that a
well-established source would donate a series of DVD seminars to the prison chapel for that
purpose. Buchannan said that Inmate Keaton had changed his religious affiliation and could not
serve as their Faith Helper, which Inmate Keaton later told Plaintiff was untrue. Buchannan further
said that Raleigh officials had enacted “sweeping measures” prohibiting outside religious groups
from donating religious DVDs to the prison to be used by their respective inmate faith group. All
religious DVDs had to be preapproved and purchased by the prison and that these measures
prohibited inmates from attending religious services for six months after their enrollment. (Doc.
No. 1 at 6). These measures were not enacted in response to the furtherance of a compelling
government interest and are not the least restrictive means of satisfying a minor penological
interest; rather, it stems from the desire of prison officials to substantially burden Plaintiff’s
religious practice. (Doc. No. 1 at 7). Defendants are substantially burdening Plaintiff’s free
exercise by enacting irrational, arbitrary, overreaching restrictions designed to prevent him from
getting educated on his ancestral religion that is unavailable in any format other than A/V seminars.
This violates the First Amendment and RLUIPA because the Government cannot meet strict
scrutiny standard and Defendants are not using the least restrictive means. (Doc. No. 1 at 8).
Plaintiff filed a grievance regarding the matter on June 17, 2016.
On June 24, 2016, five religious books arrived for Plaintiff at Mountain View C.I. They
were authored by and sent to Plaintiff by Pastor Everett Ramsey of Faith Baptist Church, and they
2

were published by James Nelson Publishers. On June 24, 2016, Defendant Ollis rejected the
publications because they did not come from a legitimate publisher or marketer, and Plaintiff
appealed. On June 26, 2016, Plaintiff sent Defendant Slagle a request form informing him of Ollis’
actions. On July 15, 2016, Plaintiff sent a letter to Perry notifying him of Ollis’ actions. (Doc. No.
1 at 18). On July 21, 2016, Plaintiff filed a grievance and received an unsatisfactory response.
Defendant Ollie’s rejection of the publications violates the First Amendment rights to free speech
freedom of religion as well as RLIUPA. Reading religious literature is part of the way Plaintiff
practices and expresses his religious beliefs. Taking the literature was responsible for making his
exercise impracticable and is substantially burdening him, is an insurmountable impediment to his
spiritual growth and development. The arbitrary rejection and procedural rubber-stamping was not
in furtherance of a compelling governmental interest but instead was motivated by Defendant
Ollis’ personal desire to punish Plaintiff because of his race and religious beliefs in violation of
Equal Protection. Plaintiff had been receiving Pastor Ramsey’s publications at Mountain View
C.I. until he was moved to the East Unit where Defendant Ollis processed the mail. The inside
page of Ramsey’s book entitled “Kingdom Parables” shows this fact as well as Plaintiff’s claim of
racial-religious discrimination agenda by “Mt. View C.I. Staff.” (Doc. No. 1 at 21).
On August 15, 2016, Correctional Officer Grear confiscated Volume 2 of Lawrence
Buchard’s “The Covenant Heritage Series” from Inmate Eddie Money. (Doc. No.1 at 55). Plaintiff
informed Defendant Grear that he had loaned the book to Inmate Money as authorized by DPS
policy. However, Grear said the book was Aryan Brotherhood material and therefore contraband.
Plaintiff contends the book is religious regarding his ancestral religious practice and does not
contain any gang-related subject-matter. Confiscation was the sole product of Grear’s hatred of
Plaintiff because of his race and “ancestral religion” and tries to use the security policies to punish
3

Plaintiff. (Doc. No. 1 at 56). Plaintiff had received the book while at Avery C.I through proper
mailroom screening three years before it was confiscated. It was inspected upon his arrival at
Mountain View C.I., and he had it for over a year at Mountain View C.I. where it was inspected
repeatedly without incident. Plaintiff was also allowed to receive Volumes 4 and 5 of the book
prior to encountering Defendant Ollis. The book does not satisfy the criteria justifying
confiscation. Plaintiff filed a grievance August 25, 2016, and received an unsatisfactory response.
The grievance responses show that prison officials changed their strategy after investigating his
claims, saying the confiscation was due to the fact Plaintiff loaned the book to Inmate Money. The
confiscation was unlawful and was misdemeanor Larceny under North Carolina law. Plaintiff had
received mailings for several years from Sommerville at different prisons without incident. (Doc.
No. 1 at 70). The mailings were religious and/or political which shows violation of First
Amendment freedom of speech. Defendant Ollis’ actions violate the First Amendment by
substantially burdening free exercise of his religion in violation of RLUIPA. (Doc. No. 1 at 71).
Defendant Ollis also violated Due Process by failing to follow mandatory mail procedures.
Plaintiff asks the court to judicially notice the fact that there are inmates at Mountain View C.I.
who continually suffer abuses of Defendant Ollis, condoned by Defendants Perry and Slagle, and
these abuses will continue without the court’s intervention. (Doc. No. 1 at 72).
Plaintiff’s incoming correspondences with Ed Sommerville suddenly stopped while
Plaintiff was housed at Mountain View C.I., without notice. Plaintiff came to suspect that
Defendant Ollis was responsible. On June 6, 2016, Plaintiff found out that Sommerville’s
correspondences had been returned to him by mailroom staff. On July 11, 2016, Plaintiff wrote to
Ollis on a request form and asked her to explain why the religious and political articles had been
returned without notice or due process procedures, which are mandatory. On July 13, 2016,
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Defendant Ollis rubber stamped the request, saying the mailings had been returned due to absence
of prisoner number in the address. This was deceptive because Sommerville’s mailings had a
computer generated address with Plaintiff’s prisoner number. On July 12, 2016, Plaintiff wrote to
Perry informing him of Ollis’ abuses. (Doc. No. 1 at 74). On October 22, 2016, after Plaintiff was
transferred to Craggy C.I., he received two letters from Sommerville informing another Mountain
View C.I. inmate of his futile attempts to mail religious and political printouts to Plaintiff. (Doc.
No. 1 at 75). Plaintiff filed another grievance on October 22, 2016.
Plaintiff seeks no money damages. (Doc. No. 1 at 113). He seeks the following “remedial”
relief, and any other relief the Court deems appropriate:
(1) That this Court enter and order requiring:
(2) Defendants absorb and pay all filing fees, and any additional costs
accrued with the advancement of this Complaint.
(3) Defendants to contact Pastor Everett Ramsey and purchase, and provide
the five books that were unlawfully rejected by Defendant #4 Lynn Ollis.
(4) Defendants contact publisher & author Lawrence Blanchard, and
purchase and provide Plaintiff a new copy of Vol. 2 of the Covenant Heritage
Series.
(5) That Defendant #1 Frank L. Perry be officially reprimanded and
demoted with reduction in pay.
(6) That Defendant #2 Mike Slagle be officially reprimanded, demoted,
with a reduction in pay. This demotion shall exist for a period of five years.
(7) Defendant #3 Carol Buchannan be officially reprimanded, demoted with
reduction in pay. This demotion shall exist for a period of five years.
(8) Defendant #4, Lynn Ollis’ employment with the N.C. Dept. of Public
Safety be immediately terminated with prejudice, including forfeiture of all
benefits.
(9) Defendant #5 Corrections Officer Grear be officially reprimanded,
demoted, and permanently reassigned away from inmate housing units. Said
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reassignment shall not be promotional nor an advancement.
(10) Defendant #5 Corrections Officer Grear be charged with misdemeanor
larceny.
…
(12) Defendant #1 Frank Perry to issue an order to all prisons wherein
Plaintiff is currently housed, or will be housed in the future requiring prison staff
to immediately cease and desist all actions aimed at disrupting Plaintiff’s mail.
(B) This order shall also prohibit prison staff from harassing Plaintiff, in
any way.
(C) This order shall also prohibit prison staff from transferring Plaintiff to
any and-or all undesirable housing units.
(D) This order shall require all prison staff to accommodate Plaintiff’s legal
mail, files, and books … in accordance with DPS policy.
(Doc. No. 1 at 115).
II.

STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity
review, a court must determine whether the Complaint raises an indisputably meritless legal theory
or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to
relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
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Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.
(1)

DISCUSSION

Parties
The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action

shall include the names of all the parties.” Fed. R. Civ. P. 10(a); see Myles v. United States, 416
F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption
and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings
liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel
or paralegal to pro se litigants,” Pliler v. Ford, 542 U.S. 225 (2004).
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The body of the Complaint contains allegations against individuals who are not named as
defendants in the caption as required by Rule 10(a). This failure renders Plaintiff’s allegations
against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept.
29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the
compliant but who were served).
Claims against individuals not listed as defendants in the Complaint’s caption are therefore
dismissed.
(2)

First Amendment
The First Amendment states that “Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….” U.S.
Const. Amend I. The First Amendment applies to the states through the Fourteenth Amendment.
See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). A prison inmate retains those First Amendment
rights that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system. Procunier v. Martinez, 416 U.S. 396, 412 (1974), limited by
Thornburgh v. Abbott, 490 U.S. 401 (1989); Pittman v. Hutto, 594 F.2d 407, 410 (4th Cir. 1979).
When a prison restriction infringes upon an inmate’s First Amendment rights, the alleged
infringement “must be evaluated in the light of the central objective of prison administration,
safeguarding institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citing Jones v.
N.C. Prisoners’ Labor Union, 433 U.S. 119, 129 (1977)).
To state a free exercise claim under the First Amendment, a plaintiff must allege facts
sufficient to show that he held a sincere religious belief, and that the official action or regulation
substantially burdened his exercise of that belief. Hernandez v. Comm’r, 490 U.S. 680, 699
(1989). For government conduct to survive scrutiny under the Establishment Clause, “(1) it must
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have a secular purpose; (2) its principal or primary effect must neither advance nor inhibit religion;
and (3) it must not foster an excessive government entanglement with religion.” Buxton v.
Kurtinitis, 862 F.3d 423, 432 (4th Cir. 2017) (citing Lemon v. Kurtzman, 403 U.S. 602, 612–13
(1971)); see also Madison v. Riter, 355 F.3d 310, 316 (4th Cir. 2003). A prison policy that
substantially burdens an inmate’s ability to practice his religion withstands a First Amendment
challenge when it is “reasonably related to legitimate penological interests.” O’Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
In deciding whether a defendant’s actions can be sustained as reasonably related to
legitimate penological interests, the court must consider: (1) whether there is a valid, rational
connection between the action and the stated legitimate government interest; (2) whether there are
alternative means of exercising the right; (3) whether accommodating the right will have an
adverse impact on guards, other inmates, and prison resources generally; and (4) the absence of
ready alternatives). Substantial deference is accorded to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means to accomplish them. Turner,
482 U.S. at 89-91; Overton v. Bazzetta, 539 U.S. 126, 132 (2003). The burden is not on the State
to prove the validity of prison regulations, but on the prisoner to disprove it. Id. Any regulation of
speech must not be any more encompassing than necessary to further the penological interested
involved. See Montcalm Publishing Corp. v. Beck, 80 F.3d 105, 108 (4th Cir. 1996) (citing
Martinez, 416 U.S. at 424).
First, Plaintiff alleges that Defendant Buchannan thwarted his attempt to enroll in the
Messianic Faith Group to begin a weekly educational class. He claims that Defendant Buchannan
told him that the Faith Helper he had recruited was unavailable, which was untrue, and that a new
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DPS policy prohibited outside religious groups from donating religious DVDs to the prison and
that inmates were prohibited from attending religious services for six months after their
enrollment.
This claim is facially insufficient to state a First Amendment violation. Plaintiff has not
adequately alleged that he has a sincere religious belief. Further, he has failed to adequately allege
that Defendant Buchannan’s alleged actions substantially burdened, rather than merely
inconvenienced, Plaintiff’s exercise of his religion. Plaintiff’s conclusory allegations that he was
thwarted from forming a religious group fails to demonstrate that this substantially burdened his
religious rights, or that he lacked alternate means to practice his sincere religious beliefs. See
generally Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege
facts, directly or indirectly, that support each element of the claim); Simpson v. Welch, 900 F.2d
33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact
are not sufficient); see, e.g., In re Long Term Admin. Seg. of Inmates Designated as Five
Percenters, 174 F.3d 464, 470 (4th Cir. 1999) (application of security threat group did not deprive
inmates of religious freedom because, inter alia, they had other available avenues to exercise their
religion while in segregation including the ability to pray, fast, and study religious materials); Scott
v. Ozmint, 467 F.Supp.2d 564 (D.S.C. 2006) (affirming summary judgment for defendants because
their refusal to recognize prisoner’s religion of Neterianism, which meant he could not hold group
meetings, failed to state a First Amendment claim).
Plaintiff alleges that Defendant Ollis violated the First Amendment by stopping his mail
including books from unauthorized sources and religious/political correspondences, and that
Defendant Grear violated the First Amendment by confiscating a book Plaintiff had loaned to
another inmate as Aryan Brotherhood contraband. Plaintiff baldly asserts that the confiscation of
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property as contraband and the return of political/religious mail was “unjustified” under DPS
policy.
Plaintiff’s conclusory allegations are insufficient to set forth a First Amendment violation.
Prison officials have broad discretion to determine that materials inside a prison are contraband.
See generally Sandin v. Connor, 515 U.S. 472, 485 (1995) (“Discipline by prison officials in
response to a wide range of misconduct falls within the expected perimeters of the sentence
imposed by a court of law.”). He fails to allege that there was no rational connection between the
confiscation or return of his material, and a legitimate governmental interest, or that he lacked an
alternative means of expressing himself. Therefore, he fails to state a free speech violation. See
e.g., Birdo v. Dunston, 2013 WL 2154819 (W.D.N.C. May 17, 2013) (dismissing prisoner’s §
1983 claim because he failed to state a First Amendment violation with regards to white
supremacist speech; he was free to engage in expression regarding political matters and beliefs so
long as his speech did not contain threatening or inflammatory communications); Hughes v. City
of Mariposa, 2011 WL 5118448 (E.D. Ca. Oct. 27, 2011) (dismissing prisoner’s First Amendment
claim that a jailer took a periodical away from him because he failed to allege there was no rational
connection between the jail’s policy and a legitimate governmental interest, or that he did not have
any other means of exercising his right).
To the extent that Plaintiff asserts that these actions violated his freedom of religion, this
claim also fails because, as previously discussed, he has not adequately alleged a sincerely held
religious belief, or a substantial burden, rather than a merely inconvenience, to his ability to pratice
his religion.
Plaintiff has failed to adequately allege that he has a sincerely held religious belief that
Defendants substantially burdened, or the prison’s policy of confiscating inflammatory material
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was not rationally connected to a legitimate safety interest, or that he lacked alternative means of
expressing himself. Therefore, Plaintiff’s First Amendment claims are insufficient to proceed.
(3)

RLUIPA
RLUIPA provides, in part, that no government shall impose a “substantial burden” on the

religious exercise of a person residing in or confined to an institution, even if the burden results
from a rule of general applicability, unless the government demonstrates that imposition of the
burden on that person “(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc1(a). “RLUIPA thus protects institutionalized persons who are unable freely to attend to their
religious needs and are therefore dependent on the government’s permission and accommodation
for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). A plaintiff bears
the initial burden of showing that the challenged policy substantially burdens his exercise of his
religion. See 42 U.S.C. § 2000cc-2(b); Holt v. Hobbs, 135 S. Ct. 853, 862 (2015). The statute
defines “religious exercise” as “any exercise of religion, whether or not compelled by, or central
to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); Smith v. Ozmint, 578 F.3d 246, 251
(4th Cir. 2009). A “‘substantial burden’ is one that puts substantial pressure on an adherent to
modify his behavior and to violate his beliefs, [] or one that forces a person to choose between
following the precepts of her religion and forfeiting governmental benefits, on the one hand, and
abandoning one of the precepts of her religion on the other hand.” Lovelace v. Lee, 472 F.3d 174,
187 (4th Cir. 2006) (quotations, citation, and alterations omitted).
Once the inmate makes a prima facie showing, the burden shifts to the government to prove
that “the burden in question is the least restrictive means of furthering a compelling governmental
interest.” Smith, 578 F.3d at 250. “‘RLUIPA adopts a . . . strict scrutiny’ standard.” Couch v.
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Jabe, 679 F.3d 197, 203 (4th Cir. 2012) (quoting Lovelace, 472 F.3d at 198 n.8). Under RLUIPA,
the court must give “due deference to the experience and expertise of prison and jail administrators
in establishing necessary regulations and procedures to maintain good order, security and
discipline, consistent with consideration of costs and limited resources.” Cutter, 544 U.S. at 723
(quotation omitted). “However, ‘a court should not rubber stamp or mechanically accept the
judgments of prison administrators.’ . . .

Rather, due deference will be afforded to those

explanations that sufficiently ‘take[] into account any institutional need to maintain good order,
security, and discipline.’” Couch, 679 F.3d at 201 (quoting Lovelace, 472 F.3d at 190). Claims
brought under RLUIPA are subject to a more demanding standard than claims under the First
Amendment, that is, “strict scrutiny instead of reasonableness.” See Lovelace, 472 F.3d at 187,
199 n.8 187 (Supreme Court jurisprudence interpreting the Free Exercise Clause provides guidance
on what constitutes a substantial burden on religious exercise).
For the same reasons set forth in Section III(1), supra, Plaintiff has failed to state that the
Defendants substantially burdened, rather than merely inconvenienced, his religious exercise by
restricting his access to prohibited material and adhering to DPS policy with regards to the
formation of a religious meeting group. See Krieger v. Brown, 496 Fed. Appx. 322, 325 (4th Cir.
2012) (no substantial burden occurred where an inmate failed to “show that the deprivation of an
outdoor worship circle and the requested sacred items modified his behavior and violated his
religious beliefs” because he failed to offer any explanation why an indoor worship would
compromise his religious beliefs and he did not explain why the absence of certain items had an
impact on religious rituals and violated his beliefs); Living Water Church of God v. Charter Twp.
of Meridian, 258 Fed. Appx. 729, 739 (6th Cir. 2007) (no substantial burden occurs where
government action merely makes the “religious exercise more expensive or difficult,” but fails to
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pressure the adherent to violate his religious beliefs or abandon one of the precepts of his religion).
Therefore, Plaintiff’s RLUIPA claims are dismissed.
(4)

Due Process
The Fourteenth Amendment’s Due Process Clause provides that no person shall be

deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. Where
a state employee’s random, unauthorized act deprives an individual of property, either negligently
or intentionally, the individual is relegated to his state post-deprivation process, so long as the
State provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517 (1984);
Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels v. Williams, 474
U.S. 327 (1986)). The Parratt-Hudson doctrine is limited to cases involving “a random and
unauthorized act by a state employee, . . . not a result of some established state procedure.” Logan
v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982). When the challenge is to an “established
state procedure,” or when the deprivation is inflicted by a state official who is empowered to work
deprivations and provide process where it is predictable when those deprivations might occur, the
availability of a post-deprivation judicial hearing normally does not satisfy procedural due process.
Id.; Zinermon v. Burch, 494 U.S. 113 (1990). The Parratt-Hudson doctrine does not apply when a
municipal officer acts pursuant to a municipal policy or custom. Woodard v. Andrus, 419 F.3d 348
(5th Cir. 2005); Matthias v. Bingley, 906 F.2d 1047 (5th Cir. 1990).
To the extent that Plaintiff suggests that his material was returned and/or confiscated
contrary to DPS policy, he has a remedy for conversion under North Carolina law. See Gallimore
v. Sink, 27 N.C.App. 65, 67, 218 S.E.2d 181, 182 (1975) (an action for conversion will lie against
a public official who wrongfully deprives an owner of his property by an unauthorized act pursuant
to North Carolina law). North Carolina’s post-deprivation remedies are adequate. N.C. Gen. Stat.
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§ 143-291; see Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983) (due process satisfied where
North Carolina tort law provides an adequate avenue for relief for state prisoner). A violation of
prison policy is considered to be a random and unauthorized act for purposes of a due process
analysis. See generally Myers v. Klevenhagen, 97 F.3d 91 (5th Cir. 1996) (prisoner’s claim that the
sheriff debited his inmate trust account for medical services without first conducting an indigency
hearing, in violation of county policy, alleged random and unauthorized conduct so Parrat-Hudson
doctrine applied). Because an adequate post-deprivation remedy is available under North Carolina
law, Plaintiff has failed to state a cognizable procedural due process claim.
Therefore, Plaintiff’s due process claim is insufficient to proceed.
(5)

Equal Protection
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o State shall ...

deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
XIV, § 1. The equal protection requirement “does not take from the States all power of
classification,” Personnel Adm’r v. Feeney, 442 U.S. 256, 271 (1979), but “keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger
v. Hahn, 505 U.S. 1, 10 (1992). To succeed on an equal protection claim, a § 1983 plaintiff “must
first demonstrate that he has been treated differently from others with whom he is similarly situated
and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). If he makes this showing, “the court proceeds to
determine whether the disparity in treatment can be justified under the requisite level of scrutiny.”
Id. Ordinarily, when a state regulation or policy is challenged under the Equal Protection Clause,
unless it involves a fundamental right or a suspect class, it is presumed to be valid and will be
sustained “if there is a rational relationship between the disparity of treatment and some legitimate
15

governmental purpose.” Heller v. Doe, 509 U.S. 312, 319–320 (1993).
The Fourth Circuit does not recognize prisoners as “a suspect class.” Roller v. Gunn, 107
F.3d 227, 233 (4th Cir. 1997). When equal protection challenges arise in a prison context, however,
courts must adjust the level of scrutiny to ensure that prison officials are afforded the necessary
discretion to operate their facilities in a safe and secure manner. See Morrison, 239 F.3d at 654–
55. In a prison context, therefore, the court must determine whether the disparate treatment is
“reasonably related to [any] legitimate penological interests.” Shaw v. Murphy, 532 U.S. 223, 225
(2001). This deferential standard applies “even when the alleged infringed constitutional right
would otherwise warrant higher scrutiny;” however, this more deferential review does not ignore
the concerns that justify application of a heightened standard outside of the prison context.
Morrison, 239 F.3d at 655-56.
Plaintiff alleges that the arbitrary rejection and procedural “rubber-stamping” of the
rejection of his mail was motivated by Defendant Ollis’ personal desire to punish Plaintiff because
of his race and religious beliefs. These bald allegations are insufficient to state an equal protection
claim because Plaintiff fails to allege that he was treated differently from similarly situated
individuals as a result of intentional discrimination.
Therefore, Plaintiff’s equal protection claim is dismissed.
(6)

Relief
A prisoner’s transfer moots a § 1983 request for declaratory and injunctive relief when the

conditions of which the prisoner claims are unlikely to recur. See Williams v. Griffin, 952 F.2d
820 (4th Cir. 1991); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986). Plaintiff’s claims
for injunctive relief with regard to his property, the handling of his mail, and his formation of a
religious group meeting, are moot because Plaintiff no longer resides at Mountain View C.I. where
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the alleged incidents occurred, and he has failed to allege the existence of any conditions indicating
likely recurrence.
Moreover, Plaintiff asks the Court to order the discipline of DPS personnel, the institution
of criminal prosecution, and Plaintiff’s placement in desirable prison housing, all of which are
unavailable in this § 1983 civil rights action. See generally Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973) (“in American jurisprudence …, a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”); Harris v. Salley, 339 Fed. Appx. 281
(4th Cir. 2009) (prisoner lacked equal protection right to have criminal proceedings instituted
against § 1983 defendants); Sandin v. Conner, 515 U.S. 472 (1995) (a change in the conditions of
a prisoner’s confinement that does not exceed the scope of the original sentence only gives rise to
a federally protected liberty interest if it imposes atypical and significant hardship in relation to
the ordinary incidents of prison life); Van Houten v. Gaskill, 2006 WL 749410 (D.Kan. March 22,
2006) (“whether to fire or demote an employee is a personnel issue beyond the jurisdiction” of the
district court). These claims for relief are frivolous and are not cognizable in a § 1983 action.
IV.

CONCLUSION

For the reasons stated herein, the Complaint is deficient and subject to dismissal. Plaintiff
shall have fourteen (14) days in which to file an Amended Complaint in which he may attempt to
cure these deficiencies and state a facially sufficient claim for relief. Plaintiff is reminded that,
despite his pro se status, he must comply with all applicable procedures and rules including the
Federal Rules of Civil Procedure and the Court’s Local Rules. His attention is particularly drawn
to Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires a “short and plain”
statement of the claim. Any Amended Complaint will supersede the original Complaint and
therefore any Defendants or claims not contained in the Amended Complaint will be waived.
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Plaintiff’s failure to timely file an Amended Complaint that complies with this Order will result in
this case being dismissed and closed without prejudice and without further notice to Plaintiff.
IT IS, THEREFORE, ORDERED that:
1. The Complaint, (Doc. No. 1), is DISMISSED as facially insufficient and frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
2. Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in
accordance with this order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint in accordance with this Order, this action will be dismissed
and closed without prejudice and without further notice to Plaintiff.
3. The Clerk is directed to mail a copy of a new Section 1983 complaint form to Plaintiff.

Signed: March 9, 2018

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