LaKemper v. Solomon et al
ORDER granting in part and denying in part 20 Motion for Reconsideration. Signed by Chief Judge Frank D. Whitney on 11/6/2017. (Pro se litigant served by US Mail.)(nvc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
GEORGE T. SOLOMON, et al.,
THIS MATTER comes before the Court on a Motion for Reconsideration, (Doc. No.
20), filed by pro se Plaintiff Cobey Lakemper, following this Court’s dismissal on initial review
of various constitutional claims purportedly raised by Plaintiff in this action, filed under 42
U.S.C. § 1983. See (Doc. No. 18).
Plaintiff’s motion for reconsideration will be granted in part and denied in part.
Specifically, this Court affirms its finding, in its initial order, that Plaintiff did not state various
constitutional claims that he raised in his Amended Complaint based on Defendants’
classification of Plaintiff as a gang member while he was incarcerated at Pasquotank and
Alexander Correctional Institutions. This Court specifically discussed Plaintiff’s First
Amendment, Fourteenth Amendment, and Eighth Amendment claims and found that Plaintiff
failed to state a cognizable claim under any of these constitutional provisions based on his
security classification as a gang member. As noted in its prior order, however, the Court found
that Plaintiff’s retaliation claim survived initial review, based on his allegations that prison
officials, among other things, “intentionally and maliciously” destroyed Plaintiff’s mail to and
from family and friends in retaliation for his filing grievances.
Plaintiff contends in his motion for reconsideration that he intended to bring a standalone First Amendment claim based on “his right to send and receive mail and thereby
communicate with family and friends.” His Amended Complaint framed Defendants’ conduct of
tampering with and destroying his mail as retaliatory for Plaintiff’s filing of grievances. Thus,
the Court allowed a retaliation claim to proceed based on those allegations. Nevertheless, the
Court finds, on reconsideration, that Plaintiff may pursue a stand-alone First Amendment claim
based on his right to send and receive mail, if he so wishes.
In the motion for reconsideration, Plaintiff also alleges that, as a result of the
“intentionally erroneous and retaliatory assignment of SRG classification,” he also stated a
“Fourteenth Amendment class of one equal protection” claim and a Fifth Amendment double
jeopardy claim. See (Doc No. 20 at 11). The Court finds that Plaintiff has failed to state a
cognizable equal protection claim or a double jeopardy claim in his Amended Complaint based
on his security classification. Thus, as to these purported claims, the motion for reconsideration
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Reconsideration, (Doc.
No. 20), is GRANTED in part and DENIED in part.
Signed: November 6, 2017
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