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Adams-Bey v. Rogers

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

March 21, 2018

GREGORY ADAMS-BEY, Plaintiff,
v.
FNU ROGERS, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on initial review of pro se Plaintiff's Complaint, (Doc. No. 1), as well as his pending Motions for “reparative injunction, ” (Doc. No. 16), photocopies at the Court's expense, (Doc. No. 17), preliminary injunction and temporary restraining order, (Doc. No. 18), and default judgment, (Doc. No. 19). Plaintiff is proceeding in forma pauperis. See (Doc. No. 7).

         I. BACKGROUND

         Pro se Plaintiff Gregory Adams-Bey[1] has filed a civil rights suit pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a), with regards to incidents that allegedly occurred at the Lanesboro Correctional Institution. He names the following as Defendants in their official and individual capacities: Superintendent Rogers, Officer Gibbs, Officer Adams, and Security Risk Group (“SRG”) Intelligence Officer Hatley.

         Construing the Complaint liberally and accepting it as true, Prison Emergency Response Team (“PERT”) members Defendants Adams, Gibbs, and another individual searched Plaintiff's unit at around 8:00 AM on February 18, 2017. Defendant Gibbs placed Plaintiffs in hand restraints outside his cell while Defendant Adams and the unidentified officer searched the cell. During the search, Plaintiff noticed that papers were being “rambled through” and envelope seals were being broken. (Doc. No. 1 at 2). Plaintiff said he needed to see what was going on with his legal mail but he was told that he was not allowed to see what was going on and was told “You don't have any rights.” (Doc. No. 1 at 2).

         Defendant Adams walked out of Plaintiff's cell with an “excessive amount of papers” including a letter from the Colorado Secretary of State that Plaintiff signed for as legal mail on August 22, 2016; pleadings including an averment of jurisdiction, motion for entry of default, and motion for default judgment in envelopes addressed to New Hanover County Courthouse that were labeled as legal mail; pleadings including an averment of jurisdiction, motion for entry of default, motion for default judgment, in envelopes addressed to U.S. District Court for Eastern District of North Carolina labeled as legal mail; an affidavit of ownership; name change deed; affidavit of truth as a living man; ecclesiast deed addressed to Colorado Secretary of State labeled as legal mail; an eight-page supplemental grievance addressed to the N.C. State Bar; Petition for discretionary review to the N.C. Supreme Court labeled as legal mail; three civil summonses in a § 1983 case; three interrogatories; a motion to compel discovery; a motion to produce documents; and a copy of an amended complaint addressed to the Eastern District of North Carolina and labelled as legal mail. (Doc. No. 1 at 3-4).

         On the top of the stack of papers was a flyer depicting Prophet Noble Drew-Ali. Plaintiff told Defendant Adams that the flyer pertains to the prophet's 131st birthday and feast on January 8. Adams said Plaintiff was not allowed to have any material that is SRG in nature, and that the material is going to special ops. Adams referred to the fact that Plaintiff has “-Bey” attached to his name, which Plaintiff found offensive. (Doc. No. 1 at 4). Plaintiff reiterated to Defendant Adams how vital the legal material was and Adams laughed in Plaintiff's face while shuffling through it and said “Yeah, Moorish guy pray & get your ‘shit' back…” (Doc. No. 1 at 4).

         The PERT team officers never filled out a property documentation sheet pursuant to North Carolina Department of Public Safety's policy and procedure handbook. Plaintiff is now “in default on several matters due to unlawful seizure of legal property.” (Doc. No. 1 at 6).

         Plaintiff's Moorish American religious/legal materials, documents, instruments, pleadings, were sent to SRG officer Defendant Hatley for investigation, and Plaintiff was later charged with possessing SRG contraband. Plaintiff was charged with frivolous disciplinary charges which he appeals. (Doc. No. 1 at 5). Plaintiff appears to claim that Moorish Americans should not be classified as SRG. (Doc. No. 1 at 5) (“Upon information and belief, the alleged ‘Security Risk Group' ‘Sovereign Citizens' is differentiated from a Moorish-American with certain inalienable rights.”).

         Plaintiff used the Lanesboro C.I.'s prisoner grievance procedure on February 18, 2017, then filed a supplemental grievance, but there has been no response from the grievance committee. On February 20, 2017, Plaintiff wrote to Defendant Rogers “Special Ops” asking for redress because he is responsible for PERT Team officials. (Doc. No. 1 at 6). On February 22, 2017, Plaintiff wrote to SRG Officer Germeny asking for redress. Germeny said he would look into the matter but later said that officials should write a DC-160 when Plaintiff said he was afraid of officers disposing of his material. On that date, Plaintiff also wrote to the ACLU complaining about the issue and asking for assistance. On February 26, 2017, Plaintiff wrote to Defendants Rogers and Hatley complaining and asking for a redress. On March 7, 2017, Plaintiff wrote to Defendant Hatley asking for a DC-160, and wrote to Rogers asking for redress.

         Defendant Rogers is deliberately indifferent by ignoring Plaintiff's complaints and impeding his access to courts by failing to train and adequately correct Defendants Adams and Gibbs' misconduct, for which he is responsible for as superintendent and advisor to the PERT Team. This violates Plaintiff's First, Fourth, Eighth, and Fourteenth Amendment rights and RLUIPA because these actions are religious discrimination as a Moorish American/participant in Moorish science temple of America/ Moorish divine movement. Defendant Rogers failed to admonish PERT Team members to perform acts such as opening and reading legal mail, for which there are procedures that have to be followed to prevent infringement on Plaintiff's rights. Plaintiff's Fourth Amendment rights were infringed because there was no warrant based on probable cause for PERT Officers Gibbs and Adams to seize Plaintiff's property. Plaintiff filed a motion to stay with the N.C. Supreme Court and legal notice regarding the materials that were seized and the court dismissed the motion on March 15, 2017.

         Defendant Gibbs did not let Plaintiff see Defendant Adams open and read legal materials after Plaintiff said his legal mail was being tampered with. This shows knowing and intentional contribution to the infringement of his rights.

         Adams opened several envelopes that were addressed to state and federal courts. There was no excuse for this. Every piece of mail had Plaintiff's “free national name -Bey” and it was “confiscated unjustly preventing several legal actions to be pursued causing frustration and impediment denying Petitioner's [access] to the courts causing default and injury to Petitioner's First & Fourth Amendment, violating Petitioner's due process while awaiting trial hindering Petitioner to file motions with the court pursuant to N.C. G.S. 15-A-952(d) along with challenging conviction causing petitioner emotional distress violating Petitioner's rights under the Eighth Amendment.” (Doc. No. 1 at 8).

         Defendant Hatley was deliberately indifferent to the meritorious value of Plaintiff's legal materials, denying him due process. Defendant Hatley told Plaintiff that being a Moor is being a sovereign citizen discriminating against Plaintiff's religion. Defendant Hatley created charges of SRG material, (Doc. No. 1 at 9), discriminated by saying his thumbprint was not authentication, and that using “-Bey” on summons made it relate to SRG material, which violated RLIUPA and First Amendment. Defendant Hatley violated due process by unlawfully condoning the seizure of his legal materials without adequate investigation, which also violated the Fourth Amendment.

         Plaintiff seeks declaratory judgment; preliminary and permanent injunction; compensatory damages; punitive damages; dismissal of sentence in case number 12CRS58024, 12CRS9328; dismissal of pending charge 16CR060166; jury trial; costs; and any additional relief the court deems just, proper and equitable. (Doc. No. 1 at 10).

         II. STANDARD OF REVIEW

         Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity review, a 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). A complaint should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id.

         III. DISCUSSION

         (1) Unnamed Individuals

         The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action shall include the names of all the parties.” Fed.R.Civ.P. 10(a); see Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants, ” Pliler v. Ford, 542 U.S. 225 (2004).

         The body of the Complaint contains allegations against individuals who are not named as defendants in the caption as required by Rule 10(a). This failure renders Plaintiff's allegations against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served).

         Plaintiff is granted leave to file an Amended Complaint within 14 days of this Order in which he may properly name any individuals in the caption of the Amended Complaint against whom he intends to proceed.[2]

         (2) Cell Search

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const. Amend. IV. The applicability of the Fourth Amendment turns on whether “the person invoking its protection can claim a ‘justifiable, ' a ‘reasonable, ' or a ‘legitimate expectation of privacy' that has been invaded by government action.” Hudson v. Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)). While “imprisonment carries with it the circumscription or loss of many significant rights, ” the Supreme Court nevertheless cautioned that “prisons are not beyond the reach of the Constitution.” Id. at 523-24. A prisoner thus retains “some legitimate expectation of privacy in his person” under the Fourth Amendment. See King v. Rubenstein, 825 F.3d 206, 214-15 (4th Cir. 2016). However, society does not “recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and …, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson, 468 U.S. at 525.

         Plaintiff alleges that Defendants removed him from his cell and conducted a search of the cell without probable cause or a warrant. Prisoners have no expectation of privacy in their prison cells so no Fourth Amendment violation occurred. ...


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