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Torres v. Davis

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

March 25, 2019

FNU DAVIS, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on initial review of Plaintiff's Amended Complaint, (Doc. No. 11-1). Plaintiff has also filed a “Motion for Appropriate Relief, ” (Doc. No. 10), that is construed as a Motion for Preliminary Injunction, a Motion to Amend and Consolidate, (Doc. No. 11), and a Letter, (Doc. No. 13), requesting a subpoena for evidence. Plaintiff is proceeding in forma pauperis. See (Doc. No. 7).

         I. BACKGROUND

         Pro se Plaintiff is currently incarcerated at the Buncombe County Detention Facility (“BCDF”). He has filed an Amended Complaint pursuant to 42 U.S.C. § 1983 in which he names as Defendants: BCDF Sergeant Davis and BCDF Mail Room Staff Corporal Vidricks, Kim LNU, and Desiree LNU.

         Construing the Amended Complaint liberally and accepting it as true, he had a meeting with “federal lawyer” Emily Jones on August 8, 2018 while he was housed at BCDF. (Doc. No. 11-1 at 4). Jones sent Plaintiff a letter about the issues discussed and responses from the D.A. the following week The letter was returned to the federal public defender. (Doc. No. 11-1 at 6). During the first week of September 2018, either Vidricks, Kim, or Desiree rejected Plaintiff's legal mail. During that timeframe, Defendant Davis threw away Plaintiff's outgoing legal mail. Plaintiff was never notified that his mail was rejected or given a reasonable opportunity to protest that decision. Plaintiff filed grievances and Plaintiff's family about retaliation and Government misconduct and Plaintiff's family met with Major Fisher and Captain Gould about Plaintiff's safety concerns. Gould said that he spoke to the lawyer for Buncomb, Brandon Freeman, who said “leave him there.” (Doc. No. 11-1 at 4). Corporal Byrd and Sergeant Shindler told Plaintiff that Kim LNU, Desiree LNU, and Corporal Vidricks were working the Mail Room front desk at the time of these incidents and are responsible for legal mail issues. Plaintiff claims that Defendants' actions violated due process, free speech, equal protection, and denied him access to the courts.

         Plaintiff seeks damages and transfer to another facility due to a “conflict of interest and retaliation.” (Doc. No. 11-1 at 4). He also requests another copy of the § 1983 form. (Doc. No. 11-3).


         Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In its frivolity review, a court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id.


         (1) Parties

         The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action shall include the names of all the parties.” Fed.R.Civ.P. 10(a); see Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants, ” Pliler v. Ford, 542 U.S. 225 (2004).

         The body of the Amended Complaint contains allegations against individuals who are not named as defendants in the case caption as required by Rule 10(a). This failure renders those allegations nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served). The allegations directed at individuals not named as Defendants are therefore dismissed without prejudice.

         (2) Free Speech

         The First Amendment states that “Congress shall make no law … abridging the freedom of speech….” U.S. Const. Amend I. The First Amendment applies to the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822 (1974); Pittman v. Hutto, 594 F.2d 407, 410 (4th Cir. 1979). When a prison restriction infringes upon an inmate's First Amendment rights, the alleged infringement “must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citing Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 129 (1977)).

         As a general rule, prisoners have the right to both send and receive mail. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Pell v. Procunier, 417 U.S. 817 (1974). Restrictions on this right are valid if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). For instance, a prisoner's First Amendment interest in corresponding does not preclude prison ...

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