United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
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).
Motions to Appoint Counsel and Amend Complaint
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.
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
Motions to Seal and for Extension of Time
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.
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.
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).
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. Consumeraffairs.com, 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)
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
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
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.
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).
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)
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 ...