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Mays v. Smith

United States District Court, E.D. North Carolina, Western Division

February 27, 2019




         Plaintiff, a federal inmate proceeding pro se, filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The matter is before the court for frivolity review of plaintiff's complaint pursuant to 28 U.S.C. § 1915, and on plaintiff's motions to appoint counsel (DE 4), for extension of time to file pleadings (DE 7), to amend complaint (DE 8), and to seal exhibits 26 and 35 to the amended complaint (DE 9).


         A. Motions to Appoint Counsel and Amend Complaint

         The court begins with plaintiff's motion to appoint counsel. Plaintiff requests appointment of counsel because he is unable to afford counsel, the issues involved in this case are complex, he does not have access to a law library, and he does not have formal legal training. There is no constitutional right to counsel in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil litigants “only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The existence of exceptional circumstances justifying appointment of counsel depends upon “the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989) (quoting Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982)); see also Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (“If it is apparent . . . that a pro se litigant has a colorable claim but lacks capacity to present it, the district court should appoint counsel to assist him.”). Plaintiff has failed to demonstrate that this case is one in which exceptional circumstances merit appointment of counsel and he has demonstrated through his filings that he is capable of proceeding pro se. Therefore, plaintiff's motion to appoint counsel is denied.

         Plaintiff also has filed motion to amend complaint. The court grants the motion as a matter of course. See Fed.R.Civ.P. 15(a)(1). Accordingly, in conducting the frivolity review set forth below, the court has reviewed and considered the allegations in plaintiff's original complaint and the amended complaint.

         B. Motions to Seal and for Extension of Time

         Plaintiff also seeks leave to file his medical records, attached as exhibits 26 and 35 to the amended complaint, under seal. Having reviewed the motion under the governing standard, see Doe v. Pub. Citizen, 740 F.3d 246 (4th Cir. 2014), the court finds the documents should be sealed. Accordingly, plaintiff's motion to seal exhibits 26 and 35 to the amended complaint is granted.

         Plaintiff also has filed motion for extension of time to file certain pleadings. Plaintiff does not identify, and the court has not imposed, any deadline that needs to be extended. Accordingly, the motion for extension of time is denied as unnecessary.

         C. Frivolity Review

         28 U.S.C. § 1915 provides that courts shall review complaints filed by prisoners and dismiss such complaints if they are “frivolous” or fail to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(I)-(ii). A complaint may be found frivolous because of either legal or factual deficiencies. First, a complaint is frivolous where “it lacks an arguable basis . . . in law.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Legally frivolous claims are based on an “indisputably meritless legal theory” and include “claims of infringement of a legal interest which clearly does not exist.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). Under this standard, complaints may be dismissed for failure to state a claim cognizable in law, although frivolity is a more lenient standard than that for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Neitzke, 490 U.S. at 328. Second, a complaint may be frivolous where it “lacks an arguable basis . . . in fact.” Id. at 325. Section 1915 permits federal courts “to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” See Denton v. Hernandez, 504 U.S. 25, 32 (1992) (citing Neitzke, 490 U.S. at 327).

         To state a claim on which relief may be granted, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, plausibly demonstrate that plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quotations omitted).

         Plaintiff's amended complaint appears to incorporate and re-allege all claims and factual allegations contained in his original complaint, and thus the court's frivolity review focuses on the amended complaint. Plaintiff's amended complaint alleges claims for retaliation and denial of access to the courts in violation of the First Amendment (counts I and II), violations of plaintiff's due process and equal protection rights under the Fifth Amendment's Due Process Clause (counts III and VI), deliberate indifference to unconstitutional prison conditions and cruel and unusual punishment in violation of the Eighth Amendment (counts IV and V), and retaliation in violation of N.C. Gen. Stat. § 162-55 (count VII). The court reviews each claim below.

         1. Count I

         Count I alleges in part that defendants Ma'at and Hoskins violated plaintiff's First Amendment rights by fabricating false charges against plaintiff, firing him from his UNICOR job, placing him in administrative detention, and transferring him to a higher-security institution as retaliation for filing grievances. (Am. Compl. (DE 8) ¶¶ 171-72). An inmate has a First Amendment right to be free from retaliation for filing grievances. See Booker v. S.C. Dep't of Corr., 855 F.3d 533, 546 (4th Cir. 2017). Accordingly, this portion of Count I (¶¶ 171-72) is not clearly frivolous, and plaintiff may proceed with Count I to the extent it alleges a retaliation claim against defendants Ma'at and Hoskins.[1]

         Count I also alleges that defendants Smith, Glass, Slaydon, Christopher, Hendry, Leslie, Wilkins, Willis, Halfast, Martin, and Dickerson violated plaintiff's First Amendment rights by failing to report defendants Ma'at and Hoskins' violations of the Federal Bureau of Prisons's (“BOP”) standards of employee conduct. (Am. Compl. (DE 8) ¶ 173). In the absence of a constitutional violation, the failure to follow prison policy is not sufficient to state a Bivens claim. See Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990) (“If state law grants more procedural rights than the Constitution would otherwise require, a state's failure to abide by that law is not a federal due process issue.”); Jackson v. Sampson, 536 Fed.Appx. 356, 357 (4th Cir. 2013) (“[P]rison officials' failure to follow internal prison policies are not actionable under § 1983 unless the alleged breach of policy rises to the level of a constitutional violation.”). Here, plaintiff has only alleged defendants Smith, Glass, Slaydon, Christopher, Hendry, Leslie, Wilkins, Willis, Halfast, Martin, and Dickerson failed to report violations of employee standards, which standing alone is not a constitutional violation. Accordingly, this portion of count I (¶ 173) is dismissed as frivolous.

         Count I also alleges that defendant Smith, the warden of FCI-Butner I (Medium) at the time, failed to protect him from the “retaliatory actions of his subordinates” in violation of the First Amendment. (Am. Compl. (DE 8) ¶ 174). Plaintiff further alleges that defendants Smith and Caraway, a BOP administrator, “violated the Plaintiff's First Amendment right to be free from reprisals/retaliation by failing to conduct an investigation into the Plaintiff's allegations [of retaliation], that could have prevented the retaliatory actions of Defendants Ma'at and Hoskins.” (Id. ¶ 175). Additionally, in count IV, plaintiff alleges defendants Smith and Caraway failed to investigate plaintiff's allegations of retaliation, and plaintiff specifically alleges he made defendant Smith aware of the retaliation. (Id. ¶¶ 200-01). Plaintiff also sent correspondence to defendant Smith discussing his retaliation grievance, before plaintiff was transferred to the new prison, and attached such correspondence as an exhibit to the complaint. (Id. Ex. 4 at 10).[2]

         Although not identified in the complaint, the court assumes plaintiff is bringing the claims alleged in Count I against defendants Smith and Caraway under bystander or supervisory liability theories. See Randall v. Prince George's Cnty., Md., 302 F.3d 188, 204, 206 (4th Cir. 2002). “An officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual's constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id. at 204; see also Stevenson v. Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014). A claim for supervisory liability requires allegations showing: (1) “the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury”; (2) the supervisor responded so inadequately “as to show deliberate indifference to or tacit authorization of the alleged offensive practices”; and (3) “there was an affirmative causal link” between the supervisor's inaction and plaintiff's alleged injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (quotations omitted)

         On frivolity review, the court will allow the claims alleged in Count I against defendants Smith and Caraway (Am. Compl. (DE 8) ¶¶ 174-75) to proceed. Plaintiff has alleged he informed defendants Smith and Caraway about ongoing unconstitutional conduct perpetrated by their subordinates, and they failed to address plaintiff's termination from his UNICOR job, placement in administrative detention, or prevent his transfer to a more restrictive prison. (Id. ¶¶ 174-75, 200-01, Ex. 4 at 10). In the light most favorable to plaintiff, and considering his pro se status, the court finds these allegations are sufficient to survive frivolity review on a bystander or supervisory liability theory related to plaintiff's underlying retaliation claim. See Stevenson, 743 F.3d at 419 (holding allegations that defendants knew ...

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