Locke v. Solomon et al

Filing 81

ORDER denying 62 Motion to Amend/Correct and 62 Motion to Join Parties. Signed by Chief Judge Frank D. Whitney on 01/30/2020. (Pro se litigant served by US Mail.)(ctb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00337-FDW
KAREEM LOCKE,

)
)
Plaintiff,
)
)
vs.
)
)
GEORGE SOLOMON, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court upon pro se Plaintiff Kareem Locke’s combined
Motion to Amend his 42 U.S.C. § 1983 Civil Rights Complaint and to Join Parties. (Doc. No.
62.)
I.

RELEVANT BACKGROUND
Plaintiff is a prisoner of the State of North Carolina. According to Plaintiff, he was

placed on a North Carolina Department of Public Safety (“NCDPS”) “watch list” for suspected
gang membership and affiliation on August 3, 2009. (Compl. 7, Doc. No. 1.) Plaintiff alleges
that on December 11, 2015, Daniel Hatley, a Security Risk Group Intelligence Officer
(“SRGIO”) at Brown Creek Correctional Institution (“BCCI”), informed Plaintiff that he was
going to recommend Plaintiff be taken off the watch list and given a Security Threat Group
(“STG”) level classification based on Plaintiff’s membership in a gang. 1 Plaintiff filed a
grievance on December 16, 2015, complaining of Hatley’s decision and pointing out that he had
held prison jobs, completed all assigned tasks, and had not been charged with any gang-related
infraction since being placed on the watch list. (Grievance # 3510-2015-5CDM-01231

The acronyms “STG” and “SRG” (Security Risk Group) are used interchangeably in the Complaint and other
documents filed in this action.
1

1

(“Grievance # 01231”), Doc. No. 1 at 16.)
On January 6, 2016, Hatley informed Plaintiff that he had been classified as STG Level
III, with accompanying restrictions on visitation and phone-calls, among other things. Plaintiff
alleges Hatley told him that he was classified as Level III because of his “rank” within the
identified gang. (Compl. 7.)
On January 19, 2016, Plaintiff was charged with two infractions – attempting to possess
cell phones and watches and attempting to possess tobacco. (Compl. 8.) The charges were
levied based upon allegations purportedly made by a confidential informant to Defendant
Samantha Horne, an SRG Officer at BCCI. (Compl. 8; Off. and Disc. Rpt., Doc. No. 1 at 22.)
Benjamin A. Carver, a Disciplinary Hearing Officer (“DHO”) at Alexander Correctional
Institution, presided over Plaintiff’s January 26, 2016 disciplinary hearing on the two infractions.
Carver found Plaintiff guilty of both infractions and punished him accordingly. (Compl. 8.)
Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983, on June 21, 2017,
naming George Solomon, the NCDPS Director of Prisons during the relevant period, Christopher
Rich, identified by Plaintiff as the Deputy Head of the NCDPS SRG Office, Kenneth Diggs,
identified by Plaintiff as the Assistant Superintendent of Custody at BCCI, Daniel Hatley,
Benjamin Carver, and Samantha Horne as Defendants. The Court conducted an initial review of
the Complaint pursuant to 28 U.S.C. § 1915(e)(2), and dismissed Solomon, Rich, and Diggs as
Defendants because Plaintiff had not alleged any acts on their part. (Initial Rev. Order 6, Doc.
No. 7 (citing Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)).) The Court also dismissed
Plaintiff’s claim that the STG classification and accompanying restrictions imposed upon him
violated his due process rights. (Initial Rev. Order 4-5.)
Subsequently, the Court granted Defendant Hatley judgment on the pleadings on the only

2

remaining claim against him – that Hatley raised Plaintiff’s security classification in retaliation
for filing Grievance # 01231. (Doc. No. 32.) The Court also granted Defendant Carver
summary judgment on Plaintiff’s claims that Carver violated his right to procedural due process
by depriving him of information at the disciplinary hearing that would have proved the infraction
allegations to be false and violated his right to substantive due process by finding him guilty of
both infractions although no evidence of guilt was presented at the hearing, see Compl. 10-13.
(Doc. No. 48.) Plaintiff entered a notice of appeal on November 16, 2018 (Doc. No. 50), which
the Fourth Circuit Court of Appeals dismissed, Locke v. Carver, No. 18-7400 (4th Cir. May 2,
2019), Doc. No. 20.
Plaintiff has filed this combined Motion to Amend and to Join Parties (Doc. No. 62), and
Defendant Horne, the only remaining defendant in this action, has filed a response in opposition
(Doc. No. 69). For the reasons that follow, Plaintiff’s combined Motion shall be denied.
II.

DISCUSSION
A. Motion to Amend
In his Motion to Amend, Plaintiff explains that his proposed amendments pertain to

“disputed claims that Plaintiff has stated before . . . [t]hat the Defendants or the courts did not
answer or address.” (Mot. to Amend 1, Doc. No. 62) (verbatim). Plaintiff alleges that the Court
has not addressed his claim that the STG status creates an “atypical and significant hardship”
with respect to his ability to be paroled or his claim that:
[t]he classification status level and sanctions assigned/placed on me were obtained
in violation of Due Process of law U.S. Const. Amend. 1, 5, 6, 8, 14; N.C. Const.
Art. 1 sec. 19. 21, 23 as well as other provisions of the U.S. and N.C. Constitutions,
like the 4th Amendment a person’s right to privacy. Which . . . section N.C.D.P.S.
policy and procedures Chpt. C. Sec. 1900-1904. violates.
(Mot. to Amend 4, 5) (verbatim). Although captioned as a Motion to Amend, it essentially is a

3

motion for the Court to reconsider its prior ruling that Plaintiff’s STG classification did not
violate his right to due process.
The Court dismissed Plaintiff’s due process claims on initial review, stating that “a
prisoner has no liberty interest under the due process clause . . . to be held in a specific security
classification, barring some showing by the prisoner that his confinement posed an atypical and
significant hardship in relationship to the ordinary incidents of prison life.” (Initial Rev. Order 4
(citing Wilkinson v. Austin, 545 U.S. 209 (2005); Olim v. Wakinekona, 461 U.S. 238, 245
(1983); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Hewitt v. Helms, 459 U.S. 460, 468
(1976)).) The Court found that the facts alleged in the Complaint would not lead a court to
reasonably infer that “the change in [Plaintiff’s] security classification level poses ‘an atypical
and significant hardship in relationship to the ordinary incidents of prison life.’” (Initial Rev.
Order 4-5.) The Court also held that to the extent Plaintiff claimed a due process violation based
upon Defendants’ alleged failure to comply with NCDPS policy statements or procedures, he had
failed to state a claim upon which relief may be granted because “[s]tate officials' failure to abide
by state procedural regulations is not a federal due process issue, and . . . not actionable under §
1983.” (Id. at 5) (citing Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)). Thus,
contrary to Plaintiff’s assertions, the Court addressed his claim that imposition of the Level III
STG classification and accompanying restrictions violated his right to due process.
Plaintiff’s other allegation is that the Court has not addressed his claim that the STG
status creates an “atypical and significant hardship” with respect to his ability to be paroled. In
the Complaint, Plaintiff’s due process claim included the assertion that his STG designation
deprived him of “any meaningful opportunity/consideration for parole [and]/or MAPP contract
consideration, minimum custody level promotion, [and]/or normal visitation, and phone call

4

privileges.” (Compl. 10.) The Court implicitly included those factors when it concluded on
initial review that the facts alleged in the Complaint would not lead a court to reasonably infer
that Plaintiff’s STG status poses “an atypical and significant hardship in relationship to the
ordinary incidents of prison life.” Nevertheless, the Court will specifically address the parole
issue here.
The Fourteenth Amendment's right to procedural due process guarantees citizens the
protection of adequate procedures before allowing a state to deprive them of their life, liberty, or
property. Liberty interests protected by the Fourteenth Amendment “may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or it may arise from an
expectation or interest created by state laws or policies.” Austin, 545 U.S. at 221 (citations
omitted); accord Wolff v. McDonnell, 418 U.S. 539, 556–57 (1974). The Supreme Court
recognizes a narrow category of state-created liberty interests that:
will generally be limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 483–84 (1995).
The Supreme Court addressed the atypicality standard in Wilkinson v. Austin, a case in
which the plaintiffs were assigned to Ohio's supermax facility. A unanimous Court held that
incarceration in the supermax facility implicated the plaintiffs’ liberty interests. See Austin, 545
U.S. at 224.
“The Court emphasized three factors in its analysis: ‘(1) the magnitude of confinement
restrictions; (2) whether the administrative segregation is for an indefinite period; and (3)
whether assignment to administrative segregation had any collateral consequences on the
inmate's sentence.’” Incumaa v. Stirling, 791 F.3d 517, 530 (4th Cir. 2015), as amended (July 7,
5

2015). With respect to the first factor, the Court found that “incarceration in Supermax was
‘synonymous with extreme isolation’; ‘every aspect of an inmate's life [was] controlled and
monitored’; inmates were ‘deprived of almost any environmental or sensory stimuli and of
almost all human contact’; and exercise was permitted only indoors for one hour per day.” Id.
(quoting Austin, 545 U.S. at 214). Next, “because inmates were confined to a supermax facility
for an indefinite period, their interest in receiving meaningful procedural review was magnified.”
Id. (citing Austin, 545 U.S. at 224). And third, “assignment to Supermax ‘disqualifie[d] an
otherwise eligible inmate for parole consideration.’” Id. (quoting Austin, 545 U.S. at 224). “The
Court concluded that, ‘[w]hile any of these conditions standing alone might not be sufficient to
create a liberty interest, taken together they impose an atypical and significant hardship within
the correctional context.’” Id. (quoting Austin, 545 U.S. at 224).
Plaintiff’s claim that his Level III STG classification imposes atypical and significant
hardship in relation to the ordinary incidents of prison life, see id., fails on its face. See Fed. R.
Civ. P. 12(c). Applying the first Austin factor, the only confinement restrictions Plaintiff
identifies in connection with his Level III STG classification are non-contact visitation and
telephone restrictions. (Compl. 7.) He does not allege that he has been denied all visitation and all
phone privileges. Furthermore, “the denial of privileges [are] matters which every prisoner can
anticipate [and which] are contemplated by his original sentence to prison.” Gaston v. Taylor, 946
F.2d 340, 343 (4th Cir. 1991). NCDPS records show that Plaintiff has a medium custody level

and that he is housed with the regular prison population.2 He has failed to identify any
confinement restrictions associated with his medium custody classification that are outside the

2

See the NCDPS Offender Public Information website, available at
https://webapps.doc.state.nc.us./opi/offendersearch.do?method=view (Locke, Kareem, OPUS # 0244563, last
viewed 1/23/2020).

6

ordinary incidents of prison life.
As for the second Austin factor, Plaintiff makes no allegations related to the expected
duration of his Level III classification. For example, he does not allege either that his security
status is permanent or that his security status may be lowered if he meets certain criteria.
Plaintiff’s only allegation related to duration is that because of his STG status, a security alert
will remain permanently in his inmate record, regardless of any future change in his security
classification.
Finally, with respect to collateral consequences, Plaintiff claims that the STG
classification has rendered him ineligible for parole. “There is no constitutional or inherent right
of a convicted person to be conditionally released before the expiration of a valid sentence.”
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979); cf. Hawkins v. Freeman, 195 F.3d
732, 747 (4th Cir.1999) (indicating that there is no fundamental right to parole release). Plaintiff
contends, however, that prisoners convicted of first-degree murder and sentenced to life in prison
under the North Carolina Fair Sentencing Act (“FSA”) have a liberty interest in being released
on parole. (Mot. to Am. 1.)
A prisoner convicted of first-degree murder and sentenced to life in prison under the FSA
becomes eligible for parole consideration after serving 20 years of his sentence. See N.C. Gen.
Stat. § 15A-1371(a)(1) (1981) (amended 1993; repealed 1994).3 If the state Post–Release
Supervision and Parole (“PRSP”) Commission (formerly the Parole Commission) denies parole
at that point, it must consider the prisoner for parole every three years thereafter. See § 15A1371(b)(2) (repealed 1993); Act of July 18, 2008, 2008 N. C. Sess. Law 2008-133 (H.B. 1624). The

3

Although the FSA was repealed, the parole provisions remain applicable to sentences based on offenses that
occurred before October 1, 1994. See Structured Sentencing Act, ch. 538, sec. 56, 1993 N. C. Sess. Laws.

7

decision to release an inmate on parole was, and continues to be, solely in the discretion of the
PRSP Commission. See N.C. Gen. Stat. § 15A-1371. And where parole hinges on the
“discretionary decisions of parole authorities,” parole applicants “possess no entitlement [to
parole], but only a desire, that a parole board will decide in their favor.” Vann v. Angelone, 73
F.3d 519, 522 (4th Cir. 1996).
Thus, the FSA did not create a liberty interest in release on parole for prisoners convicted of

first-degree murder and sentenced to life in prison under the Act. To the extent the FSA created
a liberty interest for that group, it is a liberty interest in eligibility for consideration for parole
upon completion of 20 years of the life sentence. If parole is denied, the inmate has a continuing
liberty interest in consideration for parole at every subsequent interval required by statute.
Plaintiff asserts, however, that FSA inmates sentenced to life in prison “will not [and]
cannot be paroled” unless they have minimum or medium custody status and that inmates with
an STG Level III classification will not be promoted to minimum or medium custody. (Mot. to
Am. 2.) Plaintiff also contends that his STG Level III status makes him ineligible for the Mutual
Agreement Parole Program (“MAPP”).4 (Id. at 3.) Lastly, he asserts that NCDPS policy and
procedures require that security alert information be provided to any criminal justice agent,
including the PRSP Commission, thereby depriving him of any meaningful consideration for
parole. (Id. at 6.)
As noted, NCDPS records show Plaintiff has a medium custody classification
notwithstanding his STG status. See fn. 2, supra. By his own metric, then, Plaintiff can be
paroled. Next, according to Plaintiff’s own evidence, MAPP’s eligibility criteria does not
include a prohibition on having an STG designation. See NCDPS Policy and Procedures,

4

The MAPP is a program that allows inmates the opportunity to participate in community-based programs for
observation prior to release on parole.

8

Chapter E, sec. .1702 (a) (Doc. No. 62 at 18). Finally, whether an inmate has a security alert in
his record is only one of the many factors the PRSP Commission considers when deciding
whether an inmate is a promising candidate for parole. Other factors include the official crime
version (narrative of events of crime of conviction), prison infraction history, gang membership,
psychological evaluations, custody level history, visitation history, and home plan. See Hayden
v. Keller, 134 F. Supp. 3d 1000, 1002 (E.D.N.C. 2015).
Plaintiff was convicted of first-degree murder and sentenced to life in prison in 1991. See
fn. 2, supra. Consequently, he should have become eligible for parole consideration in or around
2011, at the latest. Plaintiff’s STG Level III status was imposed in 2016, and he does not allege that
the PRSP Commission has refused to consider him for parole since the STG Level was imposed.
Moreover, the Fourth Circuit has determined that even where a state statute establishes a liberty

interest in parole consideration, due process requires only that parole authorities “furnish to the
prisoner a statement of [their] reasons for denial of parole.” Vann, 73 F.3d at 522 (citation omitted).
Plaintiff does not allege that the PRSP has failed to notify him of its reasons for denying him parole.

In sum, Plaintiff has failed to allege facts from which the Court reasonably can infer that
he has a liberty interest in release on parole. To the extent Plaintiff has a liberty interest in
consideration for parole, he has failed to allege facts from which the Court reasonably can infer
that he has been denied the minimal process he is due. Thus, Plaintiff still has failed to state a
claim that his STG classification violated his right to due process.
B.

Motion to Join

Plaintiff seeks to reinstate Christopher Rich as a defendant in this action. He alleges Rich
had the final say in approving his STG Level III status, which he claims violated his right to due
process. See Mot. to Join (Doc. No. 62) at 2. The Court has concluded twice now that Plaintiff
has failed to state a due process claim with respect to imposition of STG status. Accordingly,
9

Plaintiff’s Motion to Join Christopher Rich as a defendant in this action shall be denied.
IT IS, THEREFORE, ORDERED that Plaintiff’s combined Motion to Amend his 42
U.S.C. § 1983 Civil Rights Complaint and to Join Parties (Doc. No. 62) is DENIED.

Signed: January 30,
2020

10