Carter v. Pruett et al
ORDER that Plaintiff's action Complaint 1 survives initial review under 28 U.S.C. § 1915(e). Signed by Chief Judge Frank D. Whitney on 12/04/17. (Pro se litigant served by US Mail.)(emw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
Sgt., Marion Correctional Institute, et al.,
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1). On November 7, 2017, this Court entered an order granting Plaintiff in forma pauperis status
and waiving the initial filing fee. (Doc. No. 5).
Pro se Plaintiff Givonno Carter, a North Carolina prisoner incarcerated at Marion
Correctional Institution in Marion, North Carolina, filed this action on October 10, 2017,
pursuant to 42 U.S.C. § 1983, naming as Defendants: (1) FNU Pruett, identified as a sergeant at
Marion; (2) FNU Turner, identified as the unit manager at Marion; and (3) FNU Brookshire,
identified as a mail room officer at Marion. In the Complaint, Plaintiff alleges, among other
things, that Defendants are intentionally interfering with and delaying his incoming mail, in
violation of his “constitutional rights.” (Doc. No. 1 at 2-3). Plaintiff seeks declaratory and
injunctive relief, as well as compensatory damages. (Id. at 7).
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). 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). A pro se complaint
must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). 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).
Prisoners have a protected First Amendment right to send and receiving mail. Prison
officials may, however, place reasonable restrictions upon these rights. See Turner v. Safley,
482 U.S. 78, 84 (1987) (establishing a four-factor test to determine whether a prison policy
served a legitimate penological objective); Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)
(holding that Turner test applies to a prison’s regulation of incoming mail). Taking Plaintiff’s
allegations as true, and construing all inferences in his favor, the Court finds that Plaintiff’s First
Amendment claim is not clearly frivolous and therefore survives initial review.
For the reasons stated herein, the Court finds that Plaintiff’s First Amendment claim
survives initial screening by the Court in that it is not clearly frivolous.
IT IS, THEREFORE, ORDERED that:
Plaintiff’s action survives initial review under 28 U.S.C. § 1915(e).
IT IS FURTHER ORDERED THAT the Clerk is directed to mail summons
forms to Plaintiff for Plaintiff to fill out and return for service of process on
Defendants. Once the Court receives the summons forms, the Clerk shall then
direct the U.S. Marshal to effectuate service on Defendants.
The Clerk is
respectfully instructed to note on the docket when the summons forms have been
mailed to Plaintiff.
Signed: December 4, 2017
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