United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
a state inmate, filed this civil rights action pro
se pursuant to 42 U.S.C. § 1983. The matter is
before the court for a frivolity review of plaintiff's
particularized complaint pursuant to 28 U.S.C. § 1915.
Also before the court are plaintiff's motions for copies
(DE 98, 100). The issues raised are ripe for adjudication.
November 12, 2015, plaintiff filed a complaint in which she
alleged that defendants were violating her religious rights
and were also deliberately indifferent to her serious medical
needs. Specifically, plaintiff alleges that she “has
what is called ‘Gender Identity [Disorder]'
(‘GID')”, and that these defendants
“refuse to let her have the [appropriate]
treatment.” (Compl. pp. 16-18). Citing De'lonta
v. Johnson, 8 F.3d 520');">708 F.3d 520 (4th Cir. 2013), the court
determined that plaintiff's claims survived frivolity
review. (December 15, 2015 Order (DE 14)). After the initial
review of her complaint, plaintiff filed numerous amendments
to her claims, as well are numerous requests for injunctive
relief which elaborated upon her core claim (DE 11, 16, 24,
25, 51, 57, 60, 69). Many of plaintiff's proposed
amendments were dismissed as futile, and her requests for
injunctive relief have consistently been denied.
(See, e.g., March 1, 2016 Order (DE 48)).
In addition to their futility, many of plaintiff's
proposed amendments named defendants without specifically
alleging their personal involvement or describing how their
conduct injured her. In this posture, the court determined
that “plaintiff's allegations, as they are now
comprised, are rambling and disjointed, thereby largely
violate Rule 8 of the Federal Rules of Civil
Procedure.” (May 20, 2016 Order (DE 89) at 2).
Accordingly, plaintiff given the following instructions:
plaintiff is directed to particularize her allegations by
filing one amended complaint specifically stating the injury
stemming from defendants' actions or inactions and the
alleged facts to support her claim. Plaintiff further is on
notice that she must connect the named defendants with the
alleged conduct which resulted in the alleged constitutional
violation. Finally, plaintiff is on notice that any amended
pleading will constitute the complaint in its entirety, and
the court will not comb her previous filings to glean any
(Id. at 2-3). Plaintiff has since filed her
particularized complaint, and the court notes that
plaintiff's particularized claims remain rambling and
disjointed. Likewise, despite the entry of several court
orders explaining why certain claims lack merit, plaintiff
continues to re-assert them. Thus, plaintiff has arguably
failed to comply with the directives of this court. Likewise,
her particularized complaint still arguably fails to comply
with Rule 8. Regardless, the court now conducts a frivolity
review of the claims contained in plaintiff's
1915 provides that courts shall review complaints in which
prisoners seek relief from a governmental entity or officer
and dismiss such complaints when they are
“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A
complaint may be found frivolous because of either legal or
factual deficiencies. First, a complaint is frivolous where
“it lacks an arguable basis . . . in law.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Legally frivolous claims are based on an “indisputably
meritless legal theory” and include “claims of
infringement of a legal interest which clearly does not
exist.” Adams v. Rice, 40 F.3d 72, 74 (4th
Cir. 1994) (quoting Neitzke, 490 U.S. at 327). Under
this standard, complaints may be dismissed for failure to
state a claim cognizable in law, although frivolity is a more
lenient standard than that for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Neitzke,
490 U.S. at 328. Second, a complaint may be frivolous where
it “lacks an arguable basis . . . in fact.”
Id. at 325. Section 1915 permits federal courts
“to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” See Denton v.
Hernandez, 504 U.S. 25, 32 (1992) (citing
Neitzke, 490 U.S. at 327).
asserts that defendants Futrelle, Owens, Byrd, Daughety, and
Daniels are deliberately indifferent to her serious medical
need of GID. (Am. Compl. (DE 99) at 11-13, 15, 17, 28-34,
37-48, 50-74, 86-91). As the court noted in its initial
review of plaintiff's original complaint, these
allegations are sufficient to survive frivolity review.
De'lonta, 708 F.3d at 526 (noting that GID
related claims are “sufficiently plausible to survive
screening pursuant to 28 U.S.C. § 1915A.”).
Accordingly, the clerk of court is directed to continue
management of plaintiff's deliberate indifference claims.
First Amendment and RLUIPA claims
contends that defendants Hackett and Daniels are violating
her religious rights, alleging claims pursuant to both the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) and the First Amendment. (Am. Compl.
(DE 99) at 13, 18-19, 22-28, 82-85). “RLUIPA . . .
protects institutionalized persons who are unable freely to
attend to their religious needs and are therefore dependent
on the government's permission and accommodation for
exercise of their religion.” Cutter v.
Wilkinson, 544 U.S. 709, 721 (2005). Likewise, the Free
Exercise Clause of the First Amendment states that
“Congress shall make no law respecting an establishment
of religion.” U.S. Const. Amend. I. The court finds
plaintiff's allegations are sufficient to survive
frivolity review and ALLOWS plaintiff to proceed with these
Grievance and PREA related claims
contends that defendants improperly handled her
administrative grievances. (Am. Compl. (DE 99) at 13, 15).
However, plaintiff does not have a constitutional right to
have available or to participate in an effective grievance
process. See Adams, 40 F.3d at 75; see
also, Oliver v. Myers, No. 7:08-CV-558, 2008 WL
5212409, at *4 (W.D. Va. Dec. 12, 2008) (stating that
“because state grievance procedures are separate and
distinct from state and federal legal procedures, an
institution's failure to comply with state grievance
procedures does not compromise its inmates' right of
access to the courts”) (citation omitted), appeal
dismissed, 335 F. App'x 317 (4th Cir. 2009).
Further, even if available, a prison grievance procedure does
not confer any substantive right upon inmates.
Adams, 40 F.3d at 75; see also, Bradley
v. Wheeler, No. 1:09cv371, 2009 WL 2634753, *4 (E.D. Va.
Aug. 25, 2009).
also argues defendants violated the Prison Rape Elimination
Act (“PREA”), 42 U.S.C. § 15601 et
seq. (Am. Compl. (DE 99) at 16, 92). However,
“[n]othing in the PREA suggests that Congress intended
to create a private right of action for inmates to sue prison
officials for noncompliance with the Act.”
De'lonta v. Clarke, No. 7:11-CV-00483, 2012 WL
4458648, at *3 (W.D. Va. Sept. 11, 2012) (unpublished)
(collecting cases), appeal dismissed, 502 F.
App'x 265 (4th Cir. 2012) (per curiam) (unpublished).
Moreover, a violation of a prison policy that does not result
in a constitutional violation does not give rise to a claim
under section 1983. See, e.g., Danser
v. Stansberry, 772 F.3d ...