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Allen v. Taylor

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

July 27, 2018

JOHNNIE D. ALLEN, Plaintiff,
v.
FNU TAYLOR, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on initial review of Plaintiff's Amended Complaint, filed under 42 U.S.C. § 1983. (Doc. No. 8). See 28 U.S.C. § 1915(a). Also pending are Plaintiff's Motion for Preliminary Injunction, (Doc. No. 12), and Plaintiff's Motion to Appoint Counsel, (Doc. No. 17). On October 4, 2017, the Court entered an order waiving the initial filing fee and directing monthly payments to be made from Plaintiff's prison account. (Doc. No. 10). Thus, Plaintiff is proceeding in forma pauperis.

         I. BACKGROUND

         Pro se Plaintiff Johnnie D. Allen, a North Carolina prisoner incarcerated at Maury Correctional Institution in Maury, North Carolina, filed this action on August 18, 2017, pursuant to 42 U.S.C. § 1983. Plaintiff filed an Amended Complaint on September 25, 2017. Plaintiff has named the following persons as Defendants: (1) FNU Taylor, identified as the Security Risk Group (“SRG”) sergeant employed at Marion Correctional Institution; (2) Jeffery James, identified as a Unit Manager of F-Unit at Marion; (3) Morris R. McDaniels, identified as a Unit Manager of F-Unit at Marion; (4) Robert Barker, identified as a Disciplinary Hearing Officer; (5) Monica Bond, identified as the Chief Disciplinary Officer overseeing management of the Disciplinary Hearing Officers Division of North Carolina Department of Public Safety (“NCDPS”), Division of Adult Correction; and (6) and FNU Long, identified as a Security Risk Group (“SRG”) Captain. Plaintiff alleges that, while incarcerated at Marion Correctional Institution, his constitutional due process and other rights were violated because he was wrongly charged and found guilty after a disciplinary hearing of participating in gang activity. He further asserts that Defendant Taylor wrongfully opened some of his outgoing mail, in violation of his First Amendment rights. Plaintiff summarizes this action by stating that he is bringing claims for “invasion of privacy, conspiracy, discrimination and due process violations, in violation of the 1st, 4th, 8th, and 14th Amendments of the U.S. Constitution resulting in excessive punishment and family hardship and mental/emotion suffering by being placed in a false light.” (Doc. No. 8 at 1). Plaintiff alleges, more specifically:

On June 6, 2017, Defendant Taylor opened [Plaintiff's] outgoing mail and charged him with a A-14 for participation in gang activity. The Plaintiff is not a validated STG/SRG prisoner. [Plaintiff] is currently on the SRG associated watch list but has no mail or any other restrictions as an assumed associate. [Plaintiff] was read his rights for the infraction by the investigating officer Sgt. Stuart on 6-13-17 at or around 12 AM. [Plaintiff] gave a statement and requested the DPS policy and Procedure for SRG mail restrictions as evidence. Sgt. Stuart also looked up the DPS Policy and Procedure SRG section on mail and confirmed that [Plaintiff] was correct, assumed associates are not typically treated as validated prisoners are.
But St. Stuart refused to allow [Plaintiff] view a copy of the Policy and Procedure to incorporate in its statement. On 6-20-17 Defendant James told [Plaintiff] the severity on the charge and again refused to let [Plaintiff] see the Policy and Procedure.
On 6-28-17 [Plaintiff] went before the DHO, Defendant Barker who ordered reinvestigation due to [Plaintiff's] requested evidence (the Policy and Procedure) not being attached.
[Plaintiff] wrote his first grievance between 6/20/17 and 6/28/17 but never got a response.
[Plaintiff] was again asked by Defendant James how he pled on 7-3-17 and again pled not guilty.
[Plaintiff] again submitted a grievance handing it to Sgt. Hensley of the upper F-unit who informed him that it was given directly to Defendant McDaniel.
Like the first grievance, [Plaintiff]'s second grievance was ignored and when he asked Defendant McDaniel about it he was chewed out.
Repeatedly [Plaintiff] asked Staff Sergeants Wilson, Hensley, Washburn, and Curtis to see the DPS, SRG Policy and Procedure and was denied.
On 7-12-17, [Plaintiff] again went before Defendant Barker for the A-14 ‘gang activity' infraction and was found guilty but the Defendant refused to read or allow [Plaintiff] to read the Policy and Procedure.
[Plaintiff] was stripped of his phone, visitation, and canteen privileges for 180 days and was held back in ...

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