Covington v. Lassiter et al

Filing 13

ORDER that (1) Pltf's 1 Complaint survives initial review; (2) Pltf's 7 Motion for Summary Judgment is DENIED at this time because it is premature; (3) Clerk to send Pltf summons forms to fill out, and once Court receives summons forms, U.S. Marshal shall effectuate service on Defts in accordance with Rule 4 of FRCivP. Signed by Chief Judge Frank D. Whitney on 5/19/17. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-387-FDW
KARL L. COVINGTON, JR.,

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Plaintiff,
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vs.
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KENNETH E. LASSITER, et al.,
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Defendants.
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____________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, filed under
42 U.S.C. § 1983, (Doc. No. 1). See 28 U.S.C. § 1915(a). On April 18, 2017, the Court entered
an order waiving the initial filing fee and directing monthly payments to be made from Plaintiff’s
prison account. (Doc. No. 10). Thus, Plaintiff is proceeding in forma pauperis.
I.

BACKGROUND

Pro se Plaintiff Karl L. Covington, Jr., a North Carolina prisoner incarcerated at Marion
Correctional Institution in Taylorsville, North Carolina, filed this action on December 1, 2016,
pursuant to 42 U.S.C. § 1983. Plaintiff has named the following persons as Defendants: (1)
Kenneth E. Lassiter, identified as the “overseer” of the “RDU”1 program for the North Carolina
Department of Public Safety; (2) Christian Crawford, identified as the Superintendent of

While Plaintiff’s pleadings indicate that the “RDU” program is a type of restrictive housing
program, neither his Complaint nor the attachments describe the RDU program in full, or what
the acronym “RDU” stands for.
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programs at Marion Correctional Institution; and (3) Keith Turner, identified as a Unit Manager
at Marion. (Doc. No. 1 at 3). Plaintiff alleges the following facts:
On 5-10-16 I was transferred to Marion C.I. for the RDU Program . . . .
Upon arrival the rules were explained as well as the reason for my enrollment in
the RDU program. On 5-18-16 I wrote a letter/grievance [to] Mr. Lassiter who is
the program overseer as well as a grievance to Mr. Turner the unit manager of my
unit.
On 5-31-16, Mr. Kenneth Lassiter forward a response through Mr.
Christian Crawford . . . and we had a verbal discussion. The conversation was
that the RDU program is a restrictive housing for control purposes program and
the plaintiff is enrolled due to his past disciplinary history. And on 6-1-16 the
procedural due process to enroll plaintiff in program will be started soon.
On 6-1-16, as Mr. Kenneth Lassiter/Christian Crawford said I received a
notification of the recommended disciplinary disposition and my first
classification hearing out of two. The facility classification is the first
classification hearing where they judge on what action is necessary and either
deny or agree or overturn it with another decision. . . . The facility classification
board is not final it is just the first step. The actual hearing for FCC was on 6-616. When they recommended Max/I-Con/ RHCP (which is a control status and
restrictive housing).
On 6-3-16 as of the defendant unit manager Turner acknowledged
Plaintiff’s letter he sent a policy on RDU explaining that RDU is a program in
adherence with conditions of confinement. . . .
On 6-6-16 at the FCC hearing the taken by authority classification was
overturned to RDU. . . . After FCC overturned the initial disposition on 6-1-16
they continued the procedural due process on to the DCA . . . . .
On 6-14-16 I was notified of my DCA final disposition hearing . . . not for
Max/I-Con/RHCP but for RDU.
On 6-20-16 at the final disposition classification hearing I was enrolled in
the RDU program.
On 8-30-16 Plaintiff received his most recent incarceration summary, . . .
show[ing] Plaintiff is not on restrictive housing for control purposes. It also
shows Plaintiff is on general population inmate which proves that the control
status Max/Icon/RHCP that was overturned on 6-1-16 . . . and the RDU status that
the defendants say is a confined or restrictive housing for control purposes
program is not the case. So basically the RDU program is violating the Plaintiff’s
14th Amendment right because the procedural due process disposition was
overturned but was still enforced under a disguised RDU program status.
(Id. at 3-7). Plaintiff also alleges that he is entitled to be classified as having general
population status, but that the RDU program is “really another solitary confined
program.” (Doc. No. 4 at 2). Plaintiff alleges that his “rights were violated due to being
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placed on disciplinary solitary confinement after the classification board denied
disciplinary control status.” (Id.). As relief, Plaintiff seeks “injunctive relief as well as a
declaratory judgment to be released from the RDU program and transferred to Maury C.I.
and relieved of the disciplinary program.” (Id. at 4).
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint
to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or seeks monetary relief from a defendant who is immune from such relief. In its
frivolity review, this 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).
III.

DISCUSSION

Although his claim is not entirely clear, Plaintiff appears to be alleging that he is being
held at the wrong custody level in violation of his due process rights because he is effectively
being held in solitary confinement even though prison officials determined at a security
classification hearing that he was entitled to be confined as part of the general population. In
Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court found that under the Due Process
Clause of the Fourteenth Amendment, inmates are entitled to certain process before being

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ordered to serve an indefinite term in conditions which essentially amount to solitary
confinement. That process includes: (1) advance notice of the basis for consideration of
placement in solitary confinement; (2) a fair opportunity for rebuttal; and (3) a short statement of
reasons for placement in solitary confinement. Id. at 225-26. Here, taking Plaintiff’s allegations
as true and construing all inferences liberally in his favor, the Court finds that this matter
survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.2
IV.

CONCLUSION

In sum, the Complaint survives initial review under 28 U.S.C. § 1915(e) and 28 U.S.C. §
1915A.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Complaint, (Doc. No. 1), survives initial review.
2. Plaintiff’s Motion for Summary Judgment, (Doc. No. 7), is DENIED at this time
because it is premature.
3. The Clerk shall send Plaintiff summons forms to fill out so that service may be made
on Defendants. Once the Court receives the summons forms, the U.S. Marshal shall
effectuate service on Defendants in accordance with Rule 4 of the Federal Rules of
Civil Procedure.
Signed: May 19, 2017

The Court will not adjudicate Plaintiff’s pending motions for preliminary injunction and
motion to compel policy until Defendants are served in this matter and have the opportunity to
address these motions. See (Doc. Nos. 8, 12).
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