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Mays v. Whitener

United States District Court, W.D. North Carolina, Asheville Division

April 28, 2015

RICHARD T. MAYS, Plaintiff,
v.
KEITH WHITENER, et al., Defendants.

ORDER

FRANK D. WHITNEY, Chief District Judge.

THIS MATTER is before the Court on initial review of Plaintiff's Amended Complaint, (Doc. No. 2), filed pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1915A. Also pending before the Court are the following motions by Plaintiff: Motion to Compel Disclosure, (Doc. No. 3), Motion for Leave to File Summons, (Doc. No. 5), and Motion for Extension of Time of Deadlines, (Doc. No. 6).

I. BACKGROUND

Pro se Plaintiff Richard T. Mays is a North Carolina state court prisoner currently incarcerated at Marion Correctional Institution. North Carolina Department of Public Safety ("NCDPS") records show that on February 29, 2008, in Mecklenburg County Superior Court, Plaintiff was convicted of statutory rape/sex offense. Plaintiff was sentenced to a total term of more than 49 years of imprisonment. Plaintiff filed this action on October 10, 2014, pursuant to 42 U.S.C. § 1983. Plaintiff filed a motion to amend the complaint, with the proposed Amended Complaint attached, on November 4, 2014. This Court has granted the motion to amend the Complaint.

In the Amended Complaint, Plaintiff has named as Defendants (1) Keith Whitener, identified as Superintendent at Marion; (2) Randy Teague, identified as Assistant Superintendent at Marion; (3) Danny Freeman, identified as "F" Unit Manager at Marion; (4) Keith Turner, identified as "D" Unit Manager at Marion; (5) Toni Banks, identified as "F" Unit Assistant Manager at Marion; (6) W. Walker, identified as an officer at Marion; (7) FNU Sparks, identified as an officer at Marion; (8) Matthew Pennell, identified as a disciplinary hearing officer for the NCDPS; and (9) Edward Thomas, identified as chief disciplinary hearing officer for the NCDPS.

In this action, Plaintiff alleges, in part, that Defendants violated his First Amendment right to access to the courts by refusing to allow him to keep all of his legal papers at Marion. Specifically, Plaintiff alleges that on February 26, 2014, he was transferred from Scotland Correctional Institution to Marion. (Doc. No. 2 at 3). He states that he traveled with two shipping bags of legal texts, one bag of legal work, and one bag of personal items. (Id.). During intake processing at Marion, Plaintiff was told he would be allowed ten books total, including legal texts, at Marion. (Id.). Plaintiff alleges that he was told that the number of legal texts allowed was limited by Marion's standard operating procedures and that some of his legal texts would be held at intake until the standard operating procedures could be forwarded to Plaintiff. Plaintiff alleges that on February 28, 2014, Defendant Banks told him that he would be allowed to "check in/check out" legal texts from Plaintiff's cell to intake through staff. (Id.). On March 1, 2014, Plaintiff filed a grievance, to which Defendant Freeman responded, stating that Marion only allows ten books "to avoid security and sanitation problems related to storage of legal texts." (Id. at 4). Plaintiff alleges that Defendant Teague approved the response to the grievance, which was upheld on appeal through Step Three. (Id.).

Plaintiff alleges that he filed a new grievance on April 6, 2014, "due to difficulty in checking out Plaintiff's own legal texts from intake." (Id.). Plaintiff alleges that he requested access to his legal texts seven days in a row and had to explain to staff each time the new check in/check out system. (Id.). Plaintiff alleges that Defendant Banks responded to the grievance, noting that Plaintiff had been given access to his legal texts "as security and duties allowed." (Id.). Plaintiff appealed the grievance through Step Three.

Plaintiff alleges that on June 1, 2014, he wrote to Defendant Whitener but received no response. Plaintiff alleges that he was moved from "F" to "H" Unit on July 24, 2014. Plaintiff alleges that he was moved from "H" to "D" Unit on August 9, 2014. (Id.). Plaintiff alleges that on August 7, 2014, he "sued for relief" in North Carolina Superior Court, in case number 14cvs575, and he states that he "claimed violations of state and federal rights, violations of state statute, and agency policy." (Id. at 4-5). Plaintiff alleges that, by order dated September 22, 2014, the Honorable J.T. Davis "dismissed Plaintiff's suit as frivolous and did not entertain motions to proceed, amend, or appeal." (Id. at 5).

Plaintiff alleges that on September 9, 2014, he was sent to Segregation on "E" Unit for a contraband charge for having a "spork" in his cell. (Id.; see also Doc. No. 1 at 5). Plaintiff alleges that when his books were packed up and moved to "E" Unit, Defendants Walker and Sparks told him he had "too many books." (Doc. No. 2 at 6). Plaintiff tried to explain the check in/check out system "to no avail." (Id.). Defendant Sparks told Plaintiff that he could donate or ship the books or that Sparks could throw them away. (Id.). Defendant Walker told Plaintiff to decide what to do with the books or he would be charged with having contraband. Plaintiff alleges that he was then given a contraband charge for his legal texts, Milton's Paradise Lost, Ovid's Metamorphosis, and a set of fingernail clippers. (Id.). Plaintiff alleges that Defendant Turner brought the contraband charge and asked Plaintiff how he wished to plea, to which Plaintiff responded that he pled not guilty. (Id.). Plaintiff alleges that he filed a grievance based on confiscation of his legal texts, he received a response on October 23, 2014, and is awaiting appeal. (Id.). Plaintiff alleges that he was released from segregation on September 25, 2014, and moved to "F" Unit.

Plaintiff alleges that on October 1, 2014, he was taken to video conference with detention hearing officer Defendant Pennell on the contraband charge. (Id. at 7). Plaintiff was told that most of the evidence Plaintiff asked to be collected had not been gathered but that Pennell was going to proceed anyway. (Id.). Plaintiff alleges that he "had on hand the missing grievances but was not allowed to present them." (Id.). Plaintiff also alleges that he "asked to read the relevant [NCDPS] policies concerning legal texts into the record and was denied." (Id.). Defendant Pennell found Plaintiff guilty and he cited a lack of evidence to support Plaintiff's position. Plaintiff appealed to chief disciplinary hearing officer Defendant Thomas, who denied Plaintiff's appeal, finding that proper procedures were followed and that sufficient evidence was present to find Plaintiff guilty. (Id.). Plaintiff alleges that he appealed to Director of Prisons George Solomon, on October 10, 2014, but received no response.

Plaintiff alleges that on October 17, 2014, he was taken in leg irons, cuffs, and a waist chain to a meeting with "D" Unit manager Defendant Turner and Lieutenant Poteat. (Id.). In the room were two shipping bags containing all of Plaintiff's legal texts and other books, except for two legal texts that were in Plaintiff's cell. (Id.). Plaintiff was told to choose ten books and the rest were to be sent home or trashed. (Id. at 8). Plaintiff chose eight legal texts, the NCDPS policy manual, and a personal journal. (Id.). Plaintiff informed Defendant Turner that the issue of Plaintiff's legal texts were a matter of an ongoing lawsuit and should be held in storage in lieu of a court ruling. Defendant Turner responded, "I don't care what statute or law you want to quote me, either keep ten books and ship the rest of I'll throw them away." (Id.). Plaintiff alleges that ten books were sent with Petitioner back to segregation where he was allowed two in his cell, and that his canteen account was charged the cost of shipping his legal texts and books home. (Id.).

Plaintiff contends that "the actions of Defendants Whitener, Teague, Freeman, Turner, Banks, Walker, and Sparks denied Plaintiff his rights to access the courts, defend himself in ongoing criminal matters, as well as contest unfair administrative actions." (Id.). Plaintiff further alleges that "the actions of Defendants Whitener, Teague, Freeman, Turner, and Banks denied Plaintiff's due process rights by not following state-wide agency policies concerning legal texts." (Id.). Plaintiff alleges that Defendant Pennell violated Plaintiff's due process rights by conducting a disciplinary hearing without certain evidence requested by Plaintiff and then by refusing to allow Plaintiff to introduce certain evidence. (Id. at 9). Plaintiff alleges that Defendant Thomas violated Plaintiff's due process rights by upholding the contraband charge against Plaintiff when the evidence requested was not presented and where available evidence was not allowed to be submitted. (Id.). Plaintiff also purports to bring an Eighth Amendment claim of cruel and unusual punishment against Defendants Turner, Pennell, and Thomas based on Plaintiff's allegations that he was "unjustly confined to segregation." (Id.). As relief, Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages against Defendants.

II. STANDARD OF REVIEW

Here, Plaintiff has paid the filing fee. Thus, he is not proceeding in forma pauperis. Nevertheless, regardless of whether Plaintiff paid the filing fee, 28 U.S.C. § 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 ...


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