United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
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).
se Plaintiff Gregory Adams-Bey 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.
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).
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).
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).
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).
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.”).
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.
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.
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.
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).
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
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).
STANDARD OF REVIEW
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)).
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.
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.
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).
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.
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.
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.