United States District Court, W.D. North Carolina, Statesville Division
ORDER
Frank
D. Whitney Chief United States District Judge
THIS
MATTER is before the Court on initial review of
Plaintiff s Complaint, filed under 42 U.S.C. § 1983.
(Doc. No. 1). Plaintiff is proceeding in forma pauperis.
(Doc. No. 6).
I.
BACKGROUND
Pro se
Plaintiff Kavan Garrison is a North Carolina prisoner
currently incarcerated at Alexander Correctional Institution
in Taylorsville, North Carolina. The North Carolina
Department of Public Safety website indicates that Plaintiff
is serving a 23-year sentence, after being convicted on
September 15, 2016, of statutory rape and indecent liberties
with a child, in Forsyth County, North Carolina. In this
action, filed on February 5, 2018, Plaintiff has named as the
sole Defendant FNU Pitts, identified as a Unit Manager at
Alexander. In the Complaint, Plaintiff alleges that:
[o]n September 20, 2017 my constitutional rights was violated
by officer unit manager Pitts when him and his staff denied
me a[n] attorney visit. I did not receive an appointment
notification of such visit and was unaware that I had miss a
visit. I found out over a week later through a letter I
receive the Attorney stating that she came to see me and was
told by staff that I didn't want to see her. I filed a
grievance within the prison to find out why I was deprived of
my rights to legal counsel. Access to the courts, petition
the government for a redress of grievances and due process of
law. I got a response from my grievance alleging that I
cho[se] to go to the yard, therefore refusing the legal
visit. After I filed the grievance I later found out from
checking with my case manager Mr. Marshall that I was in
school at the time of me allegedly refusing my attorney visit
by choosing to go to the yard instead.
I was notif[ied] my mail that the legal visit I was
wrongfully denied was to help me gain essential knowledge
concerning a claim I have pending. I'm lacking the
experience needed to properly and effectively represent
myself without aid and assistance from a lawyer or legal
worker. I now have unanswered questions and procedures
that's unresolved adding more injury to my claim (docket
number TA-26337).
(Doc. No. 1 at 4). Furthermore, in his grievance, submitted
on October 5, 2017, Plaintiff alleges that he
"receive[d] a letter from a legal worker/lawyer about a
visitation I allegedly refused. I was denied a legal visit by
staff on September 20, 2017. I did not receive a[n]
appointment slip or was notif[ied] of such visit. By not
allowing me to receive my right to counsel my constitutional
rights was violated [under the Sixth Amendment]." (Doc.
No. 1-1 at 1). Prison officials responded to the grievance,
stating that "[b]ased on the information gathered during
an investigation of your concerns, . . . [Plaintiff] was
scheduled a legal visit on Sept. 20, 2017. Programs staff
called the unit and was informed that inmate Garrison chose
to go to the yard instead of his appointment. Appointment
slips are automatically created in the system. I cannot
validate or discredit whether or not he received his slip due
to these being distributed by night shift custody
staff." (Doc. No. 5 at 3).
Plaintiff
alleges that the denial of his right to meet with an attorney
on September 20, 2017, has deprived him of his Sixth
Amendment right to counsel, and to his First Amendment right
to petition the court for redress of grievances. Plaintiff
also alleges that his Fifth Amendment and Fourteenth
Amendment rights are being violated, although he does not
explain how his rights were violated under either of these
amendments.
II.
STANDARD OF REVIEW
Because
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is "frivolous or
malicious [or] fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915 A 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 fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief. In
its frivolity review, this 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).
III.
DISCUSSION
Here,
Plaintiff alleges that his Sixth Amendment right to counsel
and his First Amendment right to redress grievances have been
violated because he was denied the right to meet with an
attorney on September 20, 2017, when the attorney came to the
prison to discuss a pending legal action filed by Plaintiff.
He also refers to the Fifth and Fourteenth Amendments in his
Complaint. To prevail in a Section 1983 action, a plaintiff
must show that the defendant violated a federal right.
See Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir.
1977). For the following reasons, the Court will dismiss this
action for failure to state a cognizable federal claim
against Defendant.
The
Sixth Amendment to the United States Constitution provides in
relevant part: "In all criminal prosecutions, the
accused shall enjoy the right... to have the Assistance of
Counsel for his defence." The Sixth Amendment right to
counsel attaches at the initiation of "adversary
judicial proceedings, " Kirby v. Illinois, 406
U.S. 682, 688 (1972)-at the first formal charging proceeding,
Moran v. Burbine, 475 U.S. 412, 428 (1986)-after
which the right applies at all critical stages of the
criminal proceedings, United States v. Henry, 447
U.S. 264, 269 (1980).
Here,
Plaintiff alleges that he was deprived of the right to meet
with counsel over a pending "claim" filed by
Plaintiff. Although Plaintiff does not elaborate on what the
claim is, he appears to be referring to a pending tort action
in North Carolina state court.[1] The Court finds no cases in which
a court has held that depriving a prisoner of the right to
meet, on one occasion, with counsel for a pending civil
action, constitutes a violation of the prisoner's Sixth
Amendment or any other constitutional right. Moreover, this
Court has been unable to identify any cases in which the
plaintiff was awarded money damages under a Section 1983
claim for deprivation of the right to counsel based on the
inability to meet with counsel on a single occasion. See,
...