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Carawan v. McLarty

United States District Court, E.D. North Carolina, Western Division

March 2, 2017

WILLIAM C. CARAWAN, JR., Plaintiff,
v.
JOHN MCLARTY, RONALD MAYES, C/O SLEDGE, NATHANIAL BUCHANAN, C/O DEMBOWSKI, C/O ALSTON, MR. MOBLEY, DAVID MINTZER, SERGEANT HARRIS, SERGEANT GARDNER, PATRICIA ALSTON, OFFICER GILL, JEFFREY HARGROVE, OFFICER JONES, OFFICER LYNCH, OFFICER MOSELEY, and OFFICER SHANKWEILER, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         The matter is before the court on defendants' motion for summary judgment (DE 99). Also before the court is plaintiff's motion to strike evidence from defendants' statement of material facts (DE 108). Plaintiff responded to defendants' motion, but defendants did not respond to plaintiff's motion. In this posture, the issues raised are ripe for adjudication. For the following reasons, the court denies plaintiff's motion to strike and grants defendants' motion for summary judgment.

         STATEMENT OF THE CASE

         Plaintiff, a state inmate, brought this civil rights action, pro se, pursuant to 42 U.S.C. § 1983. After filing his complaint, plaintiff filed a motion to consolidate the instant action with an action he previously filed in Carawan v. Kornegay, No. 5:13-CT-3244-F (E.D. N.C. 2014) (“Carawan I”). Plaintiff then filed four motions to amend his complaint. On September 2, 2014, the court granted plaintiff's first motion to amend as a matter of course, but denied plaintiff's remaining motions to amend as futile because the court directed plaintiff to particularize his complaint. The court also denied plaintiff's motion for joinder. Plaintiff next filed a motion to have the documents he filed in Carawan I “merged” into this action, which the court denied.

         On October 6, 2014, plaintiff submitted a 69-page amended complaint in response to the court's September 2, 2014, order. The court then entered an order on November 7, 2014, finding that plaintiff's October 6, 2014, amended complaint violated Federal Rule of Civil Procedure 8, and again directed plaintiff to file one amended complaint. The court notified plaintiff that his amended pleading would be construed as the complaint in its entirety. Plaintiff then filed a motion to appoint counsel, which the court denied, as well as a motion for access to a photocopier and motion for a temporary restraining order.

         In the interim, plaintiff filed an amended complaint on January 12, 2015, naming John McLarty (“McLarty”), Ronald Mayes (“Mayes”), Warren Mailroom Processing Assistant Nathanial Buchanan (“Buchanan”), Warren Assistant Superintendent of Programs Mobley (“Mobley”), Patricia Alston (“Alston”), Sergeant Gardner (“Gardner”), Sergeant Harris (“Harris”), David Mintzer (“Mintzer”), Correctional Officer Alston (“Alston”), Correctional Officer Dembowski (“Dembowski”), Correctional Officer Gill (“Gill”), Jeffrey Hargrove (“Hargrove”), Correctional Officer Jones (“Jones”), Correctional Officer Lynch (“Lynch”), Correctional Officer Moseley (“Moseley”), Correctional Officer Shankweiler (“Shankweiler”), and Correctional Officer Sledge (“Sledge”) as defendants. Plaintiff alleged that defendants interfered with his mail in violation of the First, Eighth, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Plaintiff also alleged that defendants violated his rights pursuant to the Religious Land Use of Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc-1, et seq. and the Free Exercise Clause of the First Amendment to the United States Constitution. Finally, plaintiff alleged that defendants violated his rights pursuant to the Due Process Clause of the Fourteenth Amendment in the course of several mail-related disciplinary proceedings and engaged in a conspiracy in violation of 42 U.S.C. § 1985. On January 22, 2015, the court denied plaintiff's pending motions and allowed plaintiff to proceed with this action against defendants McLarty, Mayes, Buchanan, Mobley, Alston, Gardner, Harris, Mintzer, Alston, Dembowski, Gill, Hargrove, Jones, Lynch, Moselely, Shankweiler, and Sledge.

         On May 6, 2015, plaintiff filed a motion asking for clarification as to the identity of the party plaintiff designated as “Officer Hargrove” because the North Carolina Attorney General executed a waiver of service for an officer by the name of Barbara Hargrove, which plaintiff believed was the incorrect officer. After the court directed the attorney general to respond to plaintiff's motion, the attorney general notified the court that the correct name for the party at issue was Jeffrey Hargrove. The court then granted the attorney general permission to file a waiver of service on behalf of Jeffrey Hargrove, struck the waiver of service filed on behalf of Barbara Hargrove, and dismissed Barbara Hargrove from this action. Plaintiff subsequently filed a “Motion to Have Documents From Another Case Merged to the Case File of This Case, ” motion for return of original documents, and a motion for an extension of time to respond to defendants' answer. On August 12, 2015, the court granted plaintiff's motion for the return of original documents and denied plaintiff's remaining motions.

         On August 21, 2015, plaintiff filed a motion to appoint counsel, which the court denied the same day. Plaintiff then filed a “Motion to have copies of exhibits returned in order to prepare a motion for summary judgment” and motion for reconsideration of the court's August 21, 2015, order denying plaintiff's motion for appointment of counsel. The court thereafter granted plaintiff's motion to have copies of his exhibits returned, but denied plaintiff's motion for reconsideration. On October 22, 2015, plaintiff filed a motion for an extension of time to carry out discovery, which the court granted in part and denied in part.[1] Plaintiff then filed a motion to expand the number of interrogatories, two motions to have his original documents returned, a motion for leave to file his “Affidavit of Evidence, ” and a motion to take depositions. Defendants filed a motion for an extension of time to complete discovery and to file dispositive motions. On April 11, 2016, the court denied plaintiff's motion to extend the number of interrogatories, motion to take depositions, and first motion to return documents. The court also denied plaintiff's motion to file his “Affidavit of Evidence, ” and directed the clerk of court to strike plaintiff's proposed affidavit and exhibits. The court denied as moot plaintiff's second motion for return of documents. Finally, the court granted defendants' motion for an extension of time and extended the discovery and dispositive motion deadlines.

         On May 9, 2016, defendants filed the instant motion for summary judgment, arguing that plaintiff is unable to establish a constitutional violation. Alternatively, defendants assert the affirmative defense of qualified immunity. Along with their motion, defendants filed a statement of material facts and an appendix which included the following attachments: personal affidavits from defendants Buchanan and Mobley; defendants' discovery responses; excerpts from North Carolina Department of Public Safety (“DPS”) policies and procedures; records from plaintiff's disciplinary proceedings; plaintiff's DPS disciplinary history; plaintiff's “Faith Group Affiliation Declaration Form;” DPS administrative remedy grievances and responses; plaintiff's DPS Offender Infraction log; and plaintiff's mail log. Plaintiff next filed a motion to strike evidence from defendants' statement of material facts, an opposing statement of facts, and an appendix consisting of 889 pages. Plaintiff also filed a letter on June 24, 2016, stating that he did not receive defendants' memorandum in support of their motion for summary judgment. On November 21, 2016, the court directed defendants to re-send their memorandum to plaintiff. Defendants complied with the court's order. Plaintiff subsequently filed a motion to appoint counsel, which the court denied.

         STATEMENT OF FACTS

         Except as otherwise noted below, the undisputed facts are as follows. Plaintiff's claims relate to the handing of his personal and legal mail at Warren Correctional Institution (“Warren”) from December 6, 2013 through October 6, 2014. (Am. Compl. ¶ 1; Mobley Aff. ¶ 3). While at Warren, plaintiff was classified as an indigent inmate, which is an inmate who does not have funds to pay for postage and other canteen items. (Buchanan Aff. ¶ 15; Mobley Aff. ¶ 12). As an indigent inmate, plaintiff was permitted to send mail at Warren despite his lack of funds. (Buchanan Aff. ¶ 10 and Mobley Aff. ¶ 12). In particular, as an indigent inmate, plaintiff was provided 10 postage stamps per month, and could send unlimited legal mail. (Buchanan Aff. ¶ 10; DPS Policies and Procedures Chpt. D § .0308(a)(2) (“Postage for personal mail from indigent inmates shall be limited to the cost of 10 first class one ounce letters per month per indigent inmate. Postage for personal mail from inmates without funds will be paid using the Inmate Welfare Fund provided the inmate meets the requirements of being indigent. . . .”)). The policies governing inmate mail at Warren, however, do not limit the amount of legal mail that can be sent by indigent inmates. See DPS Policies and Procedures Chpt. F § .0503(14) (“Each facility will be responsible for making provisions to allow inmates, including those on Control Status, to mail his/her mail, if the inmate can demonstrate that additional stamps are required.”); Chpt. D § 0308(b) (“The 10 letter limitation on personal mail for indigent inmates does not apply to legal mail.”); Buchanan Aff. ¶ 11.

         In addition to the DPS policies and procedures governing indigent mail, there are policies and procedures applicable to all inmate mail. For instance, inmates are permitted to possess 25 postage stamps at a time, and any inmate found in possession of more than 25 stamps is subject to disciplinary action. DPS Policies and Procedures, Chpt. F § .0503(14). DPS policy further provides that prison officials may confiscate any stamps an inmate possesses in excess of the 25 stamp limit, and any confiscated stamps are held pending the disciplinary proceedings for possessing excess postage. Id. If an inmate subsequently is found guilty of possessing excess postage, the stamps are transferred into the indigent stamp inventory and not returned to the inmate. Id. DPS policy does not require prisons to provide appeal notices for mail confiscated or otherwise interrupted for postage violations.[2] (Buchanan Aff. ¶ 29). In addition to the policies limiting the number of stamps an inmate may possess, DPS policy prohibits inmates from engaging in mail-related bartering and trading. DPS Policies and Procedures, Chpt. B § .0301(h).

         Plaintiff was charged with a series of disciplinary proceedings arising out of mail-related policy violations. The first proceeding commenced on August 15, 2013, when plaintiff was charged with a C-11 disciplinary offense for the misuse of the mail. (Buchanan Aff. Ex. E p. 67; DPS Policies and Procedures, Chpt. B, §.0202(a)). On September 10, 2013, the disciplinary hearing officer (“DHO”) conducted a hearing on the charge, and set forth the following summary of the record:

Nathaniel Buchanan, processing assistant assigned to the mailroom, reports that on 8/9/13 at approximately 0845 he observed a letter from inmate William Carawan addressed as “legal mail” to the law office of Allen Ellis, PC James Publishing Inc., PO Box 25205 Santa Ana, CA. The mailing address for the attached letter to the law office of Allen Ellis does not match that on the internet but is to a James Publishing Company. Inmate Carawan was charged with a C11 the DHO advised inmate of his right in the appeal and disciplinary process; during the hearing inmate pled not guilty to the charge of a C11. Inmate did request a written statement from the investigating office[r], the DHO asked why inmate Carawan stated he did not need it. The DHO asked inmate did he need live witness? Inmate's reply was no. Inmate alleges that under jail house lawyer handbook, provides this address to contact an attorney. He was unaware it was a publication company. The DHO read all the evidence included in the disciplinary package and all the evidence included, therefore based on the reporting party's statement and the information gathered by the investigating officer inmate Carawan is found guilty of the C11. . . .

(Buchanan Aff. Ex. E, p. 63). The DHO sentenced plaintiff to 20 days of segregation, 10 days loss of good-time credit, 20 hours of extra duty, 60 days suspension of privileges, and two months limited draw. (Id. p. 61).

         Later in August 2013, plaintiff was charged with two additional C-11 disciplinary offenses for misuse of the mail on August 14 and 16, 2013. (Id. Ex. F, pp. 91, 105). Specifically, on both August 14 and 16, 2013, mail room staff discovered mail upon which plaintiff had altered the “Mailed from Warren Correctional” stamp. (Id. Ex. F, pp. 82, 105). On September 10, 2013, plaintiff pleaded guilty to both of the August 2013, C-11offenses, and was sentenced, for each offense, to 15 days of segregation, 30 days suspension of privileges, and one month of limited draw. (Id. Ex F, pp. 84, 107).

         On December 5, 2013, Warren mail room staff received mail from plaintiff which exceeded the limit of mail permitted for indigent inmates and the number of postage stamps allowed to be possessed by any inmate. (Id. ¶ 20 and Ex. G, p. 119). Specifically, on the date at issue, the mailroom at Warren received from plaintiff 30 pre-stamped envelopes and three envelopes with “forever” stamps. (Id.) The December C-11 charge, however, ultimately was dismissed because it appeared that some of the letters had been picked up by officers at different times. (Id. ¶ 20; Ex. G, p. 119). Accordingly, prison officials could not determine whether the postage limits were violated. (Id.)

         In January 2014, plaintiff was charged with four additional mail-related disciplinary infractions for misuse of the mail on January 17, 2014. (Buchanan Aff. Ex. H, p. 159). Plaintiff incurred his first two charges-a C-9 for bartering or trading and a C-15 for possessing stamps in excess-after Warren's mail room staff received 53 stamped envelopes from plaintiff between the dates of January 6, 2014, and January 17, 2014. (Buchanan Aff. Ex. H, p. 155). As a defense, plaintiff contends that he was not engaging in bartering, but that he was the recipient of charitable gifts from Muslim inmates engaging in the practice of zakat which involves charitable acts.[3] (Am. Compl. ¶¶ 3, 6). The DHO conducted a hearing for theses charges on March 6, 2014, and set forth the following summary of the record:

Mr. Buchanan states that on 01/17/14 at 1215 HRS he received 53 stamped envelopes from [plaintiff] to b[e] mailed between the dates of 01/06/14 thru 01/17/14. Mr. Buchanan states these envelopes are the ICON pre-stamped envelopes purchase[d] from the canteen. [Plaintiff] is indigent and canteen records show he has not purchased stamped envelopes. . . .
LT Mayes states that [plaintiff] sent out 53 in 11 days, and [plaintiff] is a indigent inmate only allowed 10 pieces of mail a [] month. Inmate alleges he received the other stamps from his brothers in the block as charity.

(Buchanan Aff. Ex. H, p. 155). Based upon the foregoing, the DHO found plaintiff guilty of the charged offenses and sentenced plaintiff to 15 days of segregation, 10 days loss of good-time credit, 30 days suspension of privileges, and one month limited draw for his disciplinary convictions. (Id. p. 153).

         Plaintiff's remaining two January 2014 C-9 and C-15 disciplinary charges arose out of a January 17, 2014, search of plaintiff's cell and discovery of 54 additional stamped envelopes. (Id. p. 194). The DHO conducted a hearing for these charges on February 11, 2014, and set forth the following summary of the record:

On 1/17/14 at about 0901 Officer Schankweiler stated he searched [plaintiff's] cell and found 54 stamped envelopes and inmate is in[d]igent and can[']t purchase these items. [P]laintiff is charged with a C09 and C15. . . . During the hearing inmate plead not guilty to the C09 and guilty to the C15. Inmate did request written witness statements, inmate did not describe what type of physical evidence. Inmate states that he was given the envelopes by other inmates. Inmate states there is no where in policy that states he can not mail the amount of mail that he is. Inmate also states he should receive 25 stamped envelopes back per policy. However it should be noted that [plaintiff] is indigent and receives 10 stamps from the mail room a month.

(Id., p. 196). Based upon the foregoing, the DHO found plaintiff guilty of the C-09 disciplinary charge. (Buchanan Aff. Ex. E, p. 155). For his C-09 conviction, the DHO sentenced plaintiff to 30 days of segregation, 60 days suspension of privileges, and two months limited draw for his disciplinary convictions. (Id. p. 194). For the C-15 conviction, the DHO sentenced plaintiff to 15 days segregation, 30 days suspension of canteen privileges, and one month limited draw. (Id. at 197).

         Finally, plaintiff was charged with a C-11 disciplinary offense for the misuse of mail for an incident occurring on March 31, 2014. (Id. Ex. I, p. 212). Specifically, on that date, Warren mail room staff received five letters from inmate Tony Lancaster to be mailed out. (Id. p. 211). Defendant Buchanan noticed that the letters were “bulky, stiff[, ] and inflexible.” (Id.) As a result, defendant Buchanan obtained authorization from defendant Mobley to open the letters. (Id.) Defendant Buchanan discovered that each of the envelopes from inmate Lancaster contained envelopes from plaintiff. (Id.) Plaintiff subsequently pleaded guilty to the C-11 offense and was sentenced to 15 days segregation, 10 days loss of good-time credit, 20 hours of extra duty, 30 days suspension of privileges, and one month limited draw. (Id. p. 212).

         Despite his many mail-related disciplinary charges and conviction, plaintiff never was prohibited from sending mail while incarcerated at Warren. (Buchanan Aff. ¶ 26 and Ex. J; Mobley Aff. ¶ 16). Defendants Buchanan and Mobley attest that plaintiff's mail was interrupted only when staff suspected that it was in violation of policy. (Id.) Legal mail, particularly, was not interrupted, even if Warren staff suspected that it was being sent in violation of policy. (Id.) Although excess postage or pre-stamped envelopes, which violated policy, were not returned to plaintiff, any non-contraband letters confiscated during the course of the above-stated disciplinary proceedings ultimately were returned to plaintiff. (Buchanan Aff. ¶ 27 and Mobley Aff. ¶ 17). Plaintiff was transferred from Warren in October 2014. (Id. ¶ 3).

         DISCUSSION

         A. Motion to Strike

         Plaintiff requests that the court strike “the evidence claimed for defendants' Statement of Material Fact in Support of Defendants' Motion for Summary Judgment.” (DE 108, p. 1). Plaintiff asserts that defendants are not in compliance with Local Rule of Civil Procedure 56.1 because “no Exhibit named has been identified by paragraph or line in accordance with the rule[.]” (Id.) The exhibits contained in ...


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