United States District Court, W.D. North Carolina, Charlotte Division
DUANE L. FOX, also known as JENNIFER ANN JASMAINE, Plaintiff,
NORTH CAROLINA PRISONER LEGAL SERVICES, Defendant.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983.
(Doc. No. 1). Also pending is Plaintiff's application to
proceed in forma pauperis, (Doc. No. 2), as well as
Plaintiff's Motion to Appoint Counsel, (Doc. No. 4).
Plaintiff Duane Fox, also known as Jennifer Ann Jasmaine, a
North Carolina inmate currently incarcerated at Lanesboro
Correctional Institution in Polkton, North Carolina, filed
this action on June 18, 2018, naming North Carolina Prisoner
Legal Services (“NCPLS”) as the sole Defendant.
Citing the First, Fifth, and Fourteenth Amendments, Plaintiff
alleges that her due process right and her right to access to
the courts have been violated because she has no access to a
law library and NCDPS has refused to represent her. (Doc. No.
1 at 9).
STANDARD OF REVIEW
Court first finds that it will grant Plaintiff's
application to proceed in forma pauperis. Although the Court
has not yet ordered Plaintiff's prison trust account
statement in this action, Plaintiff's trust account
statement has been filed in another pending action in this
Court, and the Court finds that Plaintiff is entitled to
proceed in forma pauperis. See Fox v. Kinlinsky,
5:18cv78, Doc. Nos. 10, 11 (W.D. N.C. , filed May 7, 2018, in
forma pauperis status granted May 24, 2018). 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). In its frivolity
review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded
upon clearly b aseless factual contentions, such as fantastic
or delusional scenarios. Neitzke v. Williams, 490
U.S. 319, 327-28 (1989).
Court will dismiss this action because Plaintiff fails to
state a claim for a due process or any other constitutional
violation against Defendant. NCPLS is a non-profit, legal
services program that provides limited civil representation
to North Carolina inmates. See Smith v. Bounds, 657
F.Supp. 1327, 1328 n.1 (E.D. N.C. 1986), aff'd,
813 F.2d 1299 (4th Cir. 1987). Attorneys with NCPLS are at
liberty to use their professional judgment to determine
whether to accept representation in a case. The Supreme Court
stated in Bounds v. Smith, 430 U.S. 817 (1977), that
prisoners must have meaningful access to the courts. The
“meaningful access” referred to in
Bounds does not, however, entitle a plaintiff to
total or unlimited access. See High v. Hamden, No.
03-7832 (E.D. N.C. Dec. 2, 2003), aff'd, 88
Fed.Appx. 604 (4th Cir. Feb. 23, 2004); Moore v.
Gray, No. 5:04-CT-918-FL, 2005 WL 3448047, at *1 (E.D.
N.C. Jan. 26, 2005), aff'd, 133 Fed.Appx. 913
(4th Cir. 2005) (unpublished).
to succeed on a denial of access to courts claim, the inmate
must “demonstrate that the alleged shortcomings in the
[prison] library or legal assistance program hindered his
efforts to pursue a legal claim.” Lewis v.
Casey, 518 U.S. 343, 351 (1996). For example, meaningful
access to courts is denied when an inmate is not permitted to
prepare a petition or complaint. See Wrenn v.
Freeman, 894 F.Supp. 244, 248 (E.D. N.C. 1995) (citing
Wolff v. McDonnell 418 U.S. 539, 576 (1974)). This
Court's docket shows that Plaintiff has recently filed at
least two Section 1983 actions in this Court aside from this
one, and those two actions are pending. See Fox v.
Lizinbee, 3:18cv201 (W.D.N.C, filed Apr. 20, 2018)
(asserting claims of religious discrimination against various
defendants); Fox v. Kinlinsky, 5:18cv78 (W.D.N.C,
filed May 7, 2018) (asserting various claims, including
deliberate indifference to serious medical needs, against
numerous defendants). Plaintiffs own filings in this Court
demonstrate that, notwithstanding the lack of access to a law
library and the lack of assistance from NCPLS, Plaintiff was
still able to draft and file two legal actions in this Court.
Thus, Plaintiff has not been denied meaningful access to the
reasons stated herein, Plaintiffs action is dismissed for
failure to state a claim.
THEREFORE, ORDERED that:
Plaintiff s Application to Proceed in Forma Pauperis, (Doc.
No. 2), is GRANTED.
Plaintiffs Complaint, (Doc. No. 1), is DISMISSED on initial