Blankenship v. Masterson et al
Filing
11
ORDER DISMISSING without prejudice Plaintiff's Complaint. The Clerk is directed to close this civil case. Signed by Chief Judge Frank D. Whitney on 12/8/16. (Pro se litigant served by US Mail.)(smj)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:15-cv-00050-FDW
ZACKARY ALLEN BLANKENSHIP, )
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Plaintiff,
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v.
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KERRY MASTERSON,
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FNU ISENHOUR, Lt.;
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FNU REILLY, Captain;
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FNU MANDUJANO, Officer;
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FNU MULLINS; FNU YOUNG,
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Defendants.
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_________________________________)
ORDER
THIS MATTER is before the Court on consideration of Plaintiff’s pro se complaint,
filed pursuant to 42 U.S.C. § 1983.1 For the reasons that follow, Plaintiff’s complaint will be
dismissed.
Plaintiff is a pretrial detainee confined in the Burke County Detention Facility awaiting
trial on two counts of first-degree rape and one count of indecent liberties with a child, and he is
under an $850,000 secured bond.2
District courts are required to review a complaint under Section 1983 when a prisoner “seeks redress from a
governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The statute further
provides that “the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if
the complaint—(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.” § 1915A(b)(1) & (2).
In conducting this review, the 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). While a pro se complaint must be construed liberally, Haines v. Kerner,
404 U.S. 519, 520 (1972), this requirement of liberal construction will not permit a district court to ignore a clear
failure to allege facts in the complaint which set forth a claim that is cognizable under federal law. Weller v. Dep’t
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Further, the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
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This information was obtained from the website maintained by the Burke County Sheriff’s Office. (cont.)
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In his complaint, Plaintiff first alleges that from on or about January 26, 2015, until
February 10, 2015, while housed at the Catawba Detention Center (CDC), he made requests of
Defendant Masterson, whom Plaintiff alleges is a notary public employed at CDC, to notarize
certain state court pleading forms he identifies as AOC-CV-303 (Complaint and Motion for
Domestic Violence Protective Order); and AOC-CV-226 (Civil Affidavit of Indigency).3
Defendant Masterson refused to notarize the forms. Plaintiff maintains that Defendants Isenhour
and Reilly, whom he identifies as supervisors at CDC, and Masterson repeatedly ignored his
complaints about this issue and they retaliated and harassed him when he continued to request
the forms be notarized. Plaintiff maintains that he filed grievances with the CDC and he was
informed that neither Masterson, nor any other detention employees, were authorized to notarize
legal forms such as the AOC forms identified above. In particular, one response noted that CDC
policy only authorized detention employees to notarize “jail related items, not legal items.”
(5:15-cv-00050, Doc. No. 4 at 8).4
To state a claim that one or more defendants unlawfully denied him access to the courts,
Plaintiff must show that he suffered actual injury or that defendants’ conduct impeded his efforts
to pursue a legal claim. See, e.g., Lewis v. Casey, 518 U.S. 343, 351-52 (1996); Michau v.
Charleston County, S.C., et al., 434 F.3d 725, 728 (4th Cir. 2006). To be clear, the right of access
http://www.morgantonps.org/p2c/InmateDetail.aspx?navid=636160890226248673http://www.morgantonps.org/p2c/
InmateDetail.aspx?navid=636160890226248673
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These forms are maintained by the Administrative Office of the Courts (AOC) and may be accessed online.
http://www.nccourts.org/Forms/FormSearch.asp. Plaintiff also identifies two other forms: AOC-G-106 and AOC-6112. The Court’s review of the AOC’s website identified no such forms.
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The Court takes judicial notice of the grievances and responses from defendants filed by Plaintiff after finding that
they are relevant, reliable, and integral to a determination of whether the complaint states a claim for relief. See
Philips v. Pitt County Mem. Hosp, 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523,
526 n.1 (4th Cir. 2006)).
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to the courts extends primarily to direct criminal appeals, actions sounding in habeas, and certain
federal civil rights actions. Id., at 354-55. The AOC forms that Plaintiff references in his
complaint are clearly ones used in a state, domestic relations.
Plaintiff undoubtedly has appearances in court on his felony charges and he indicates that
he has counsel representing him in his case. (Compl. at 5). It is inconceivable that Plaintiff could
not obtain a notary signature either with the assistance of the court or through his counsel.
Finally, it does not appear there is any constitutional right to have CDC employees assist him
with contemplated litigation related to a domestic dispute in state court, and Plaintiff’s complaint
that defendants have retaliated against him for pursuing a notary signature is conclusory as it
identifies no specific actions taken by defendants. For the reasons stated, Plaintiff’s claim of a §
1983 violation on these facts will be dismissed.
Next, Plaintiff contends that “Sgt. John Doe on Lt. Derrigh’s Shift and Sgt. John Doe on
Lt. Acre’s shift intercepted my letters to the Catawba County Superior Clerk of Court.” (Compl.
at 5).5 There is no question that prisoners must have reasonable access to present claims in court.
See Bounds v. Smith, 430 U.S. 817, 824-25 (1977). However, in order to show a denial of access
to the courts, a prisoner must demonstrate an actual injury or that a defendant’s alleged conduct
impeded his right to access the courts. See, e.g., Lewis, supra; Michau, supra. Plaintiff blankly
states that the defendants intercepted letters but there is no indication as to how this apparently
isolated incident has caused him harm or that he could not otherwise mail the letters. This claim
will be dismissed as without merit.
A few weeks after Plaintiff filed his complaint, he filed a document entitled “Memorandum/Brief” in which
identifies the John Does as Sgt. Mullins and Sgt. Young. (Doc. No. 5 at 1).
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Finally, Plaintiff contends that Defendant Mandujano disciplined him for possessing a
copy of “Prisoner’s Self-Help Litigation” which Mandujano classified as a “weapon.” (Compl. at
5). Plaintiff’s claim here fails with regard to the seizure of the book because he is represented by
counsel in his state proceeding; therefore he cannot demonstrate that he would be denied access
to the courts, and he has failed to allege what injury he suffered. In fact, Plaintiff even notes that
if his book is not returned then he will have to talk with his attorney. (Doc. No. 4 at 9). His claim
also fails because he does not fairly assert what discipline he received or how it adversely
affected him.
Based on the foregoing, the Court finds Plaintiff has failed to state a claim for relief and
his complaint will be dismissed. 28 U.S.C. § 1915A(b)(1).
IT IS, THEREFORE, ORDERED that Plaintiff’s complaint is DISMISSED
WITHOUT PREJUDICE. (Doc. No. 1).
The Clerk of Court is respectfully directed to close this civil case.
SO ORDERED.
Signed: December 8, 2016
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