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Smith v. Perry

United States District Court, M.D. North Carolina

August 2, 2018

S. SHANE SMITH, Plaintiff,
FRANK L. PERRY, et al., Defendants.


          L. Patrick Auld United States Magistrate Judge.

         This case comes before the undersigned United States Magistrate Judge for a recommended ruling on a Motion for Summary Judgment (Docket Entry 63), brought by Defendants Frank L. Perry, George T. Solomon, Larry Huggins, Charlotte Williams, Richard L. Neely, Joseph Valliere, Mike Williams, David Livengood, Stephen W. Smith, Amy Leonard, Carol Hurlocker, and Officer Weaver. (See Docket Entry dated Mar. 13, 2018.) For the reasons that follow, the Court should grant in part and deny in part the instant Motion.


         Plaintiff, a state prisoner proceeding pro se, commenced this action by filing a complaint under 42 U.S.C. § 1983 against more than a dozen state prison officials and employees (in both their individual and official capacities) for injunctive relief and damages. (See Docket Entry 1.)[1] The complaint does not clearly set forth particular claims against particular Defendants. (See id., § IV, ¶¶ 1-75.) It does, however, generally assert claims against “prison official Defendants” (id., § IV, ¶ 2) for:

1) “not provid[ing] adequate legal services” (id., § IV, ¶ 2.a.);
2) “not answer[ing] or respond[ing] to properly submitted grievances” (id., § IV, ¶ 2.b.);
3) “discriminat[ing] against prisoners with physical disabilities” (id., § IV, ¶ 2.c.); 4) “sexually abus[ing], harass[ing], and manipulat[ing] prisoners in their care” (id., § IV, ¶ 2.d.);
5) “not properly supervis[ing] and/or train[ing] their employees” (id., § IV, ¶ 2.e.); and
6) “engag[ing] in harassment, intimidation, retaliation, threats, and transfers against prisoners who exercise (or attempt to exercise) their protected rights” (id., § IV, ¶ 2.f.).

         Defendants Perry, Solomon, Huggins, Charlotte Williams, [2]Neely, Valliere, Mike Williams, Livengood, Smith, Leonard, Hurlocker, and Weaver now have filed the instant Motion (Docket Entry 63), asking “this Court to enter summary judgment for [them]” (id. at 1; see also Id. (asserting “that there are no genuine issues of material fact, and they are entitled to a judgment as a matter of law”)). In support of the instant Motion, said Defendants submitted a brief (Docket Entry 64), along with “affidavits of Defendants Huggins, Leonard, with attached Exhibits A through D, Livengood, Neely, Smith, Valliere, with attached Exhibits A through H, and Weaver, with attached Exhibit A” (id. at 1 (citing Docket Entries 64-1 through 64-7)).[3] Plaintiff responded (Docket Entry 73)[4] and filed his own affidavit (Docket Entry 74), as well as 29 exhibits (see Docket Entry 70 at 1-2 (cataloging exhibits, docketed as Docket Entries 70-1 through 70-20, Docket Entry 71, and Docket Entries 71-1 through 71-8)). No. reply was filed. (See Docket Entries dated Feb. 20, 2018, to present.)


         “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 280 F.Supp.3d 788, 793 (M.D. N.C. 2017) (quoting Fed.R.Civ.P. 56(a)). “A dispute over a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Wood v. United States, 209 F.Supp.3d 835, 839 (M.D. N.C. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In considering a summary judgment motion, the [C]ourt must view the facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” Bullock v. United States, 176 F.Supp.3d 517, 523 (M.D. N.C. 2016).

         Failure to Provide Adequate Legal Services

         Plaintiff's complaint first presents a claim against unspecified Defendants for “not provid[ing] adequate legal services to [him] (or other prisoners)[.]” (Docket Entry 1, § IV, ¶ 2.a.) More specifically, it alleges that:

1) “the contracted legal services provider, North Carolina Prisoner Legal Services (‘NCPLS') is underfunded and cannot adequately provide the needed legal services to [Plaintiff] (or other prisoners)” (id., § IV, ¶ 2.a.i.); and
2) “when NCPLS informs [Plaintiff] (or other prisoners) that [NCPLS] cannot provide assistance, Defendants do not provide any alternative legal service or assistance” (id., § IV, ¶ 2.a.ii. (emphasis omitted)).

         The complaint further states that NCPLS has declined requests by Plaintiff for assistance, including because it “did not have the funds to assist [him]” (id., § IV, ¶ 3), that unspecified “Defendants do not provide or offer [him] (or other prisoners) an alternative if NCPLS declines to help” (id., § IV, ¶ 4), and that “[b]eing without legal research materials or legal representation has caused [him] harm and [he] ha[s] suffered injury as a result” (id.; see also id., § IV, ¶ 3 (asserting that simultaneous lack of “access to a law library” and “one trained in the law” “has left [Plaintiff] very vulnerable and at a great disadvantage while trying to maneuver through the legal process”)). Finally, the complaint avers that Plaintiff “made numerous attempts to resolve this issue through unsuccessful communication with prison officials, in particular, Defendants Perry, Solomon, Neely, Valliere, [Mike] Williams, and Leonard. [Plaintiff] ultimately submitted a [grievance], but that too was unsuccessful.” (Id., § IV, ¶ 5; see also id., § IV, ¶ 6 (“incorporat[ing] that grievance and corresponding communication”); Docket Entry 1-1 at 4-7 (letter from Plaintiff to Defendant Solomon dated May 17, 2013, enclosing grievance regarding instances in which NCPLS declined to assist Plaintiff and prison officials did not provide law library access, purportedly contrary to United States Supreme Court authority).)

         Based on these allegations, it does not appear that Plaintiff actually has asserted an inadequate legal services claim against Defendants Huggins, Charlotte Williams, Livengood, Smith, Hurlocker, and/or Weaver (as none of the allegations pertaining to this claim even mention them).[5] Moreover, because the complaint does not describe any communications about legal services between Plaintiff and Defendants Perry, Neely, Valliere, Mike Williams, or Leonard, any claim against them for failing to provide legal services seems tenuous at best. Lastly, given that the grievance Plaintiff forwarded to Defendant Solomon (A) acknowledges that, despite the lack of law library access, Plaintiff successfully instituted actions in four of the five instances when the NCPLS declined to assist him, and (B) does not state why he failed to institute an action in the remaining instance (see Docket Entry 1-1 at 5-6), he likely could not prevail on this claim against Defendant Solomon (or any Defendant), see generally Lewis v. Casey, 518 U.S. 343, 349-55 (1996) (rejecting notion that right of access to courts includes distinct right of prisoners to legal services, requiring proof of actual injury for denial of access to courts claim, and clarifying that right of access to courts protects only ability of prisoners to commence non-frivolous actions).

         However, the brief filed in support of the instant Motion does not acknowledge Plaintiff's inadequate legal services claim, much less develop any argument for summary judgment on that claim. (See Docket Entry 64.) Plaintiff therefore has not received a chance to defend the viability of his inadequate legal services claim. Accordingly, at this point, the Court should not resolve that claim by summary judgment. See generally Fed.R.Civ.P. 56(f) (permitting courts to grant summary judgment for “nonmovant, ” “on grounds not raised by a party, ” and/or “on its own, ” only “[a]fter giving notice and a reasonable time to respond”).

         Failure to Answer Grievances

         Second, Plaintiff's complaint seeks relief on the ground that unspecified Defendants “do not answer or respond to properly submitted grievances[.]” (Docket Entry 1, § IV, ¶ 2.b.) This claim fails as a matter of law, because (as the brief supporting the instant Motion argues) “Plaintiff does not have a constitutional right to participate in grievance proceedings” (Docket Entry 64 at 21). See Booker v. South Carolina Dep't of Corr., 855 F.3d 533, 541 (4th Cir. 2017) (“Adams [v. Rice, 40 F.3d 72 (4th Cir. 1994)] establishes a clear rule: inmates have no constitutional entitlement or due process interest in access to a grievance procedure. An inmate thus cannot bring a § 1983 claim alleging denial of a specific grievance process, for example.”).[6]As a result, on this claim, the Court should enter judgment in favor of each Defendant who filed the instant Motion.

         Disability Discrimination

         The third claim in Plaintiff's complaint states that unspecified Defendants “discriminate against prisoners with physical disabilities[.]” (Docket Entry 1, § IV, ¶ 2.c.) In connection with that claim, the complaint offers these allegations:

1) Plaintiff “suffer[s] from a sever [sic] congenital anatomical disability which left [him] without fingers or toes” (id., § IV, ¶ 7);
2) the North Carolina Department of Public Safety “created a special form for prisoners with disabilities to submit when requesting accommodation pertaining to their disability” (id., § IV, ¶ 8; see also Id. (“The form was titled ‘DC-746, Request for Reasonable Accommodation.'” (internal parenthetical omitted)));
3) “every time [Plaintiff] made requests for the DC-746 form, [he] was denied” (id., § IV, ¶ 9; but see id., § IV, ¶ 12 (“As a remedy to a prior grievance, Defendant Leonard finally provided [Plaintiff] with numerous copies of the DC-746 form.”));
4) Plaintiff “made numerous attempts to resolve this issue through unsuccessful communication with prison officials, in particular, Defendants Perry, Solomon, Huggins, Neely, Valliere, [Mike] Williams, and Leonard” (id., § IV, ¶ 10);
5) Plaintiff “ultimately submitted a grievance complaining that prison officials were not making the DC-746 forms available to [him]” (id.; see also id., § IV, ¶ 11 (“incorporat[ing] that grievance”); Docket Entry 1-1 at 43 (grievance submitted by Plaintiff, dated August 31, 2013, objecting to lack of DC-746 forms), 44 (documenting response to said grievance that, “[a]s of 9/3/2013 all Programs staff and Custody staff have been given copies of the DC 746 so that it is easily accessible to the inmate population” and that Plaintiff was “given five (5) copies of the blank form per his request, also on this date”));
6) “[o]n approximately September 6, 2013, [Plaintiff] submitted a DC-746 form requesting accommodation for [his] disability using one of the forms provided to [him] by Defendant Leonard” (Docket Entry 1, § IV, ¶ 13; see also Docket Entry 1-1 at 66-68 (accommodation request submitted by Plaintiff on September 6, 2013, in connection with his lack of “fingers or toes” (which makes writing “a difficult and painful process, ” because, “[i]f [he] must hold a pen/pencil to write for any length of time, [his] hands become so sore and irritated that further tasks, such as holding a fork or other utensil is impossible”), seeking access to “non-network computer so that [he] may adequately complete [his] job assignments, ” which “include record keeping, report writing, and a lot of written work” (emphasis omitted)));
7) “[l]ong after time had lapsed for prison officials to reply [to that] DC-746 form, [it] was returned to [Plaintiff], and [he] was informed that facility officials (Defendants Neely, Valliere, [Mike] Williams, and Leonard) would not accept [it] solely because [Plaintiff] had ‘used the old form'” (Docket Entry 1, § IV, ¶ 14);
8) Plaintiff “made numerous attempts to resolve this issue through unsuccessful communication with prison officials, in particular, Defendants Perry, Solomon, Huggins, Neely, Valliere, [Mike] Williams, and Leonard” (id., § IV, ¶ 15);
9) Plaintiff “ultimately submitted a grievance, but that too was unsuccessful” (id.; see also id., § IV, ¶ 16 (“incorporat[ing] that grievance”); Docket Entry 1-1 at 46-48 (grievance submitted by Plaintiff, dated November 15, 2013, objecting to rejection of DC-746 form, “signed by Annette Foutz on November 14, 2013”), 49-50 (documenting response (dated November 21, 2013) to Plaintiff's grievance (dated November 15, 2013) confirming (A) rejection of DC-746 form, “due to it not being the current version, ” and (B) provision of current form “to him with this response”), 75-77 (accommodation request submitted by Plaintiff on July 17, 2014 (representing demands from accommodation request he submitted on September 6, 2013), with response from prison officials on August 21, 2014, indicating that Plaintiff “will have access to a typewriter/word processor to be used for his work duties”));
10) “[o]n numerous occasions, [Plaintiff] voiced desire and submitted written requests and applications to facility officials, in particular, Defendants Neely, Valliere, Williams, Livengood, and Leonard that [Plaintiff] be considered for . . . a sentence-reducing, incentive wage prison job assignment in the facility's Correctional Enterprise Industry” (Docket Entry 1, § IV, ¶ 17);
11) “Defendant Livengood refused to give [Plaintiff] an opportunity to work in the Enterprise Industry” (id., § IV, ¶ 18; see also id., § III, ¶ I (describing Defendant Livengood as “Enterprise Plant Manager”));
12) “[t]o [Plaintiff's] knowledge, Defendant Livengood refused to hire [Plaintiff] because of [his] disability” (id., § IV, ¶ 18; id., § IV, ¶ 69 (“Defendant Livengood refused to allow [Plaintiff] assignment to the Enterprise Industry because [Defendant Livengood] suspected [Plaintiff] would require accommodation . . . .”));
13) “[t]o [Plaintiff's] knowledge and observation, Defendant Livengood would not hire inmates with visible physical disabilities” (id., § IV, ¶ 19);
14) Plaintiff “made numerous attempts to resolve this issue through unsuccessful communication with prison officials, in particular, Defendants Perry, Solomon, Huggins, Neely, Valliere, [Mike] Williams, Livengood, and Leonard” (id., § IV, ¶ 20); and
15) Plaintiff “ultimately submitted a grievance, but that too was unsuccessful” (id; see also id., § IV, ¶ 21 (“incorporat[ing] that grievance and corresponding communication”)); Docket Entry 1-1 at 52-53 (grievance submitted by Plaintiff, dated April 24, 2015, alleging that “there exists a discriminatory hiring practice by the Correctional Enterprise department” and rhetorically asking if Plaintiff's “requests for assignment [were] being arbitrarily dismissed by [the prison's] Enterprise Plant Manager, [Defendant] Livengood, because [Plaintiff] suffer[s] from a severe anatomical disability”), 54 (documenting, in response to said grievance, that Defendant Livengood “stated that [Plaintiff] ha[d] not purposely been overlooked for a position”)).

         Plaintiff's complaint thus identifies two forms of alleged disability discrimination: (1) failure to make DC-746 forms available and/or to accept his submission of an out-dated DC-746 form on September 6, 2013; and (2) failure to assign Plaintiff to an Enterprise Plant job. Neither sub-claim can survive the instant Motion. As an initial matter, none of the complaint's disability discrimination allegations refer to Defendants Charlotte Williams, Smith, Hurlocker, and/or Weaver. Additionally, to the extent Plaintiff has made disability discrimination allegations regarding Defendants Perry, Solomon, Huggins, Neely, Valliere, Mike Williams, Livengood, and Leonard, their brief supporting the instant Motion properly observes that, although Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, both generally prohibit exclusion of a qualified prisoner from a prison program because of a disability, “Plaintiff's wholly conclusory discrimination allegations are insufficient to show that he was refused benefits in a correctional setting solely [by reason of (as required by Section 504) or by reason of (as required by Title II of the ADA)] a qualified disability.” (Docket Entry 64 at 12.)[7]

         Turning first to the Enterprise Plant job sub-claim, Plaintiff's complaint and his affidavit filed in opposition to the instant Motion acknowledge that Defendant Livengood acted as the hiring decision-maker. (See Docket Entry 1, § IV, ¶¶ 18, 19, 69; Docket Entry 74, ¶¶ 30-32.) Even accepting as fact Plaintiff's hearsay recounting of reports from one correctional officer and unnamed prisoners that “[Defendant] Livengood said he would never hire [Plaintiff] for any position” (Docket Entry 74, ¶ 30) and that “[Defendant] Livengood simply was not going to hire [Plaintiff] because [Defendant Livengood] did not want [Plaintiff] in [the Enterprise Plant]” (id., ¶ 31), Plaintiff has not come forward with any competent evidence[8] tending to show that Defendant Livengood made that decision because of Plaintiff's disability; instead, Plaintiff has offered only his rank speculation that “Defendant Livengood refused to hire [Plaintiff] because of [his] disability” (Docket Entry 1, § IV, ¶ 18) and that “Defendant Livengood refused to allow [Plaintiff] assignment to the Enterprise Industry because [Defendant Livengood] suspected [Plaintiff] would require accommodation” (id., § IV, ¶ 69).[9]

         That approach cannot sustain a disability discrimination claim, particularly in the face of Defendant Livengood's explicit, sworn denial of the allegation that he discriminated against Plaintiff based on his disability (see Docket Entry 64-3, ¶ 7). See Forestier Fradera v. Municipality of Mayagüez, 440 F.3d 17, 21 (1st Cir. 2006) (“Even in disability discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” (internal brackets and quotation marks omitted)); Hardaway v. Equity Residential Mgmt., LLC, Civ. No. 11-1924, 2012 WL 3903489, at *5-6 (D. Md. Sept. 6, 2012) (unpublished) (“[The p]laintiffs' subjective belief alone that discrimination was a motivating factor is insufficient ‘to raise a right to relief above the speculative level.' Accordingly, [the p]laintiffs' claim under the ADA will be dismissed. Section 504 of the Rehabilitation Act parallels the ADA . . . . As noted, the instant plaintiffs have not . . . set forth plausible allegations giving rise to an inference that the objectionable conduct was related to any disability. . . . Accordingly, their Rehabilitation Act claim cannot be sustained.” (internal brackets, citation, and heading omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))); see also Ihekwu v. City of Durham, 129 F.Supp.2d 870, 878 (M.D. N.C. 2000) (“To establish a prima facie case, [the p]laintiff must show: (1) that he has a disability under the ADA; (2) that he sought or applied for one or more positions; (3) that he was otherwise qualified for the position(s) in question; and (4) that he was denied the position(s) about which he complains under circumstances giving rise to an inference of disability discrimination.” (emphasis added)).[10]

         Plaintiff's disability discrimination sub-claim predicated on the unavailability of DC-746 forms and the rejection of an outdated DC-746 form also falls short. Most fundamentally, Plaintiff has not produced any evidence to show that those events actually excluded him from a prison program (let alone due to any Defendant's disability-related bias). In that regard, the accommodation that Plaintiff evidently wished to request when he initially could not find DC-746 forms and that he later requested via an old DC-746 form concerned access to a computer to ease the writing burdens of his job in the dining facility. (See Docket Entry 1-1 at 66-68.) Plaintiff secured that job in July 2013 (see Docket Entry 74, ¶ 41) and, while maintaining it for over a year without access to a computer, he “like[d] to think [he] did the job well” (id., ¶ 44; see also id., ¶¶ 50 (“I had created numerous notebooks to track and properly maintain the inventories, menus, and recipes. These notebooks became an important tool and resource for me and made it possible for me to properly and accurately perform the tasks expected of me from the Food Service Management.”), 74-105 (discussing Plaintiff's work in dining facility in 2013-14, including obstacles he faced, but without suggesting that lack of computer access prevented him from keeping his job assignment)).

         In sum, Plaintiff's disability discrimination claim fails as a matter of law.[11]

         Failure to Prevent Sexual Abuse

         As its fourth claim, Plaintiff's complaint asserts that unspecified Defendants “sexually abuse[d], harass[ed], and manipulate[d] prisoners in their care[.]” (Docket Entry 1, § IV, ¶ 2.d.) In support, the complaint makes these pertinent averments:

1) “[i]n 2014, Defendant [Julia] Peeler involved [Plaintiff] in an unsolicited emotional and physical relationship” (id., § IV, ¶ 22);
2) “Defendant Peeler was [Plaintiff's] work supervisor” (id.; see also id., § III, ¶ K (identifying Defendant Peeler as “Food Service Manager I”); id., § IV, ¶ 57 (“[Plaintiff] was the inventory clerk for the Food Service Department.”));
3) “Defendant Peeler's friend, Defendant Hurlocker, encouraged [Plaintiff] to maintain the relationship with Defendant Peeler” (id., § IV, ¶ 23; see also id., § III, ¶ M (identifying Defendant Hurlocker as “Correctional Officer” at Plaintiff's then-prison));
4) Plaintiff “attempted to report this to prison officials, in particular, Defendants Valliere and Smith, but [Plaintiff's] attempts were countered with threats, denials, or [he] was simply ignored or rebuffed” (id., § IV, ¶ 24; see also id., § III, ¶¶ G (identifying Defendant Valliere as “Assistant Superintendent” of Plaintiff's then-prison), J (identifying Defendant Smith as “Food Service Manager III”); id., § IV, ¶¶ 25 (“Defendant Smith served as Defendant Peeler's immediate supervisor. Defendant Smith was involved in a personal and dependent relationship with Defendant Peeler, which rendered him unable or unwilling to intervene in Defendant Peeler's actions.”), 26 (“Defendants Smith and Peeler often and regularly reported to work under the influence of controlled substances, which was reported to their supervisors, specifically Defendants Neely and Valliere. No. action was ever taken to correct the actions of Defendants Smith or Peeler.”), 27 (“When Defendant Smith would be approached or confronted regarding his condition, or the condition of Defendant Peeler, Defendant Smith would begin singing. Sometimes he would sing the childrens' [sic] song, ‘The Wheels on the Bus go Round[] and Round,' indicating that if you did not let it drop, you would be on the transfer bus to another facility.”), 28 (“Defendants Neely and Valliere knew of the misdeeds of both Defendants Smith and Peeler, but took no meaningful action to protect [Plaintiff] (or any other prisoner).”), 29 (“Defendant Peeler refused to attend the mandatory staff training - a terminable offense. Defendants Neely, Valliere, and Smith merely ordered her to surrender her pepper spray and handcuffs.”), 30 (“Defendants Neely, Valliere, and Smith rendered Defendant Peeler ‘uncertified' because she was no longer qualified to possess the required pepper spray and handcuffs, a designation which prohibits uncertified staff to mingle with prisoners inside the facility. However, Defendants Neely, Valliere, and Smith continued to allow Defendant Peeler unfettered access to [Plaintiff] (and other prisoners).”));
5) Plaintiff “made numerous attempts to resolve this issue through unsuccessful communication with prison officials, in particular, Defendants Perry, Solomon, [Charlotte Williams], Neely, Valliere, [Mike] Williams, Smith, and Peeler” (id., § IV, ¶ 31; see also id., § III, ¶¶ B (describing Defendant Perry as “Secretary of Corrections”), C (describing Defendant Solomon as “Director, Division of Prisons”), E (describing Defendant Doe, later identified as Defendant Charlotte Williams, as “P.R.E.A. Coordinator”), F (describing Defendant Neely as “Superintendent” of Plaintiff's then-prison), H (describing Defendant Mike Williams as “Assistant Superintendent” of said prison);
6) Plaintiff “submitted a grievance” (id., § IV, ¶ 31), which he attached to and “incorporate[d]” into his complaint (id., § IV, ¶ 32; see also Docket Entry 1-1 at 19 (letter dated November 19, 2014, from Plaintiff to “Department of Public Safety, PREA Office” with grievance), 20 (“Grievance Statement: A high-ranking prison official . . . has involved me in a [sic] emotional and physical relationship which violated policy and state and federal statutory law (PREA). These encounters have happened within the past twelve months. . . . I am very stressed. I am not eating properly. I have lost nearly 30 pounds. My sleep patterns are erratic. When I do sleep, I am having terrible dreams. I am trying mental health . . . .” (emphasis in original) (signed on October 28, 2014)));[12]
7) “[i]n approximately March of 2015, [Plaintiff] was . . . interviewed by two prison officials” (Docket Entry ...

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