United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
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).
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.
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.
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).
STANDARD OF REVIEW
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)).
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
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.
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
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)).
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 ...