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LaKemper v. Solomon

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

March 27, 2019

GEORGE T. SOLOMON, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS MATTER comes before the Court on the following motions: a Motion for Summary Judgment and a Motion to Seal Document, by Defendants Levi Brothers, Benjamin A. Carver, FNU Chester, FNU Dula, Kenneth Lassiter, Christopher Rich, George T. Solomon, and Larry Swain. (Doc. Nos. 73, 77). Also pending are the following motions by Plaintiff: “Motion for Leave to File Supplemental Pleading, ” (Doc. No. 44); “Motion to Compel Discovery, ” (Doc. No. 51); “Motion Rule 46 Objecting to Restrictions on Discovery, ” (Doc. No. 55), “Motion Seeking Order Requiring All Discovery, ” (Doc. No. 62), “Motion Requesting Immediate Ruling on Discovery, ” (Doc. No. 69), “Motion to Compel Defendants to Transport Plaintiff to Library Facility, ” (Doc. No. 70).

         I. BACKGROUND

         A. Procedural Background

         Pro se Plaintiff Cobey LaKemper is a North Carolina prisoner incarcerated at Tabor Correctional Institution in Tabor City, North Carolina. On April 25, 2017, Plaintiff filed this action pursuant to 42 U.S.C. § 1983, naming as Defendants: (1) Kenneth Lassiter, identified as the current Director of Prisons for the North Carolina Department of Public Safety (“NCDPS”); (2) George Solomon, identified as the former NCDPS Director of Prisons; (3) Christopher Rich, identified as the Chief Security Risk Group (“SRG”) Coordinator for NCDPS; (4) Levi Brothers, identified as an SRG Correctional Officer at Pasquotank Correctional Institution at all relevant times; (5) Larry Swain, identified as an SRG Correctional Officer at Pasquotank Correctional Institution at all relevant times; (6) Benjamin A. Carver, identified as the Former DHO/Assistant Superintendent at Alexander Correctional Institution; (7) FNU Chester, identified as an SRG Correctional Officer at Alexander Correctional Institution at all relevant times; and (8) FNU Dula, identified as a Correctional Officer at Alexander Correctional Institution at all relevant times. (Doc. No. 1). Plaintiff filed an Amended Complaint on July 27, 2017. (Doc. No. 17).

         Plaintiff alleged in his Amended Complaint that his Fourteenth Amendment and First Amendment constitutional rights are being violated because he was wrongly classified as being in a security threat group (“STG”) (i.e., a gang member) while in prison, and that Defendants have retaliated against him in various forms for filing grievances. Plaintiff seeks compensatory and punitive damages, as well as declaratory and injunctive relief. (Doc. Nos. 1, 17).

         On September 29, 2017, this Court conducted its frivolity review, dismissing Plaintiff's Fourteenth Amendment and First Amendment claims as to his security classification and allowing Plaintiff to proceed with his remaining retaliation claim.[1] (Doc. No. 18). Plaintiff subsequently filed a motion for reconsideration, contending that he raised, in his Amended Complaint, a stand-alone First Amendment claim based on his allegation that Defendants rejected and then destroyed some of Plaintiff's incoming and outgoing mail to and from family and friends without providing notice or an opportunity to appeal. Plaintiff also claimed that he intended to bring a Fourteenth Amendment “equal protection” claim and a Fifth Amendment double jeopardy claim. (Doc. No. 20). On November 7, 2017, the Court granted Plaintiff's motion for reconsideration in part, allowing him to proceed on a stand-alone First Amendment claim based on a violation of his First Amendment right to send and receive mail. (Doc. No. 22). Plaintiff thereafter filed another motion for reconsideration, claiming that this Court failed to rule on “Plaintiff's Fourteenth Amendment procedural due process challenge regarding” the alleged confiscation and destruction of personal mail. (Doc. No. 27). The Court entered an order dated May 7, 2018, stating that it would allow Plaintiff to pursue this Fourteenth Amendment claim. (Doc. No. 40).

         On January 12, 2018, Defendants filed an Answer. (Doc. No. 30). On March 7, 2018, this Court entered a Scheduling Order, directing that dispositive motions be filed no later than August 5, 2018. (Doc. No. 33). The Court granted several extensions for the parties to file dispositive motions, and on October 31, 2018, Defendants filed the pending summary judgment motion. (Doc. No. 73).

         On November 5, 2018, this Court entered an order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements for filing a response to the summary judgment motion and of the manner in which evidence could be submitted to the Court. (Doc. No. 79). Plaintiff filed a response to the summary judgment motion on December 14, 2018. (Doc. No. 85).

         B. Factual Background

         1. Plaintiff's Evidence

         Plaintiff alleges that, since his incarceration in February 2014, he has been classified as an associate of multiple security risk groups (SRGs). Plaintiff alleges that Defendants have retaliated against him for filing grievances in the following manner: by wrongly assigning him to these custody classifications; by confiscating, delaying, tampering with, and/or destroying some of his outgoing and incoming mail; by confiscating books; and by making up disciplinary infractions against him. Plaintiff admits to having two tattoos and acknowledges he has been informed that the tattoos form the basis of his SRG custody classifications, rather than any grievances.

         2. Defendants' Evidence

         In support of their motion, Defendants have submitted the affidavits of Cameron Gaddy (not a party), with an attached exhibit; Defendant Rich, with an attached exhibit; Defendant Carver, with an attached exhibit; Defendant Swain, with attached exhibits; Defendant Chester, with attached exhibits; and Defendant Dula, with an attached exhibit. (Doc. No. 75).

         a. Relevant NCDPS Policy

         NCDPS's Security Manual states that its policy is to provide programs and incentives for inmates validated as Security Threat Group (“STG”) members to sever their affiliations with STGs, with the goal being the disassociation with STG activities. (Doc. No. 75-2 at ¶ 6: Rich Aff.; Doc. No. 76). Facility intelligence officers in the field initially identify an inmate as a security threat group member through extensive research and documentation of member behavior. Facility intelligence officers are specifically trained in gathering intelligence related to gang activity. A facility intelligence officer investigates at the facility level. The facility head, and then ultimately the division office, reviews the investigation. Inmates are “validated” in three different levels, with level three being the highest or most dangerous level. Before an inmate can be “validated, ” he receives notification of his validation, along with the opportunity to dispute the validation. (Id. at ¶ 7).

         The NCDPS Security Manual, Subject: Security Threat Group, provides that a Security Threat Group Associate is defined as “[a]ny inmate or other person who, though not validated as a Security Threat Group Member, is known to participate in or support the illegal or illicit activities of a STG/STI. An associate may also be any inmate that is being watched or observed to gather evidence or intelligence to support validation as an STG/STI member.” (Id. at ¶ 8).

         The NCDPS Security Manual, Subject: Security Threat Group provides as follows:

(F) All incoming and outgoing mail (except legal mail) should be opened and read by the Administrator, Facility Intelligence Officer or designee. Such mail shall be subject to rejection, non-delivery, and photocopying by the Administrator/designee if it threatens the safety of staff, facility, inmates, or the community. Legal mail should be managed according to existing DOP policy and procedures.
(G) Severity (Threat Level 1, 2, 3 and Associate) members/individuals will be required to submit to urine testing as designated by the Administrator/Superintendent or Intelligence Officer.
(H) Severity (Threat Level 1, 2, 3 and Associate) members/individuals and their property will be searched at least every seven days.

(Id. at ¶ 8; Doc. No. 75-5 at ¶ 8: Chester Aff.).

         The NCDPS Inmate Use of the Mail policy provides that all inmate mail is subject to inspection by a mailroom officer, and facility heads may also provide for the inspection of outgoing mail. The inspection is intended to prevent the inmate from receiving or sending any mail that threatens to undermine the facility's security and order, or mail with contraband or other material that cannot be lawfully sent through the mail. The Inmate Use of the Mail policy also provides rules related to the inspection of legal mail and specifically provides a process for an inmate to appeal the disapproval of any inmate correspondence and/or its contents. (Doc. No. 75-4 at ¶ 9: Swain Aff. & Ex. A; Doc. No. 75-5 at ¶ 9). Therefore, if an inmate appeals a disapproval, the inmate and addressee/sender, along with the facility head, will be copied on the Director's Correspondence Review Committee on whether it will reverse the decision to withhold mail from that inmate. (Doc No. 75-4, Ex. A, Section .0310(c)(4) at p. 7).

         b. Plaintiff's SRG Status

         Defendants' summary judgment materials show that Plaintiff was transferred from Pasquotank Correctional Institution to Alexander Correctional Institution on June 15, 2016, and he was then transferred from Alexander to Scotland Correctional Institution on July 12, 2017. (Doc. No. 75-4 at ¶ 10: & Ex. B). On April 22, 2016, Defendant Swain discovered Plaintiff had tattoos of a Celtic cross with SS lightning bolts, a hooded person in front of flames, and chains with a cross (later found to be the KKK Blood Drop Cross). Plaintiff was placed on the associate watch list (not validated) for Aryan Nation for his tattoo of the Celtic cross with the SS lightning bolts. (Id. at ¶ 11 & Ex. C). On July 18, 2018, Cameron Gaddy, the Scotland Security Risk Group Intelligence Officer, changed Plaintiff's SRG affiliation from Aryan Nation to KKK when it was discovered that the chains with a cross tattoo was the KKK Blood Drop Cross. (Doc. No. 75-1 at ¶ 7: Gaddy Aff.). According to Defendants, this identification explains why Plaintiff has had multiple SRG classifications (Aryan Nation and KKK).

         While in NCDPS custody, Plaintiff made formal complaints about his control status and SRG designation, and prison officials addressed those complaints through the NCDPS Administrative Remedy Procedure. (Doc. No. 75-5 at ¶ 18 & Ex. B). Plaintiff requested to have his tattoo removed while at Scotland, but Scotland officials refused to transfer Plaintiff to an outside tattoo business due to security concerns.[2]

         There is no time limit for how long an inmate may remain on the associates list consistent with the applicable NCDPS policy. In general, for an inmate to be considered for possible removal from the list, he would need to show signs of positive behavior, i.e., remain infraction-free for at least a year, refrain from drug activities, and not possess a cell phone. (Doc. No. 75-1 at ¶ 10). Plaintiff received an infraction on December 3, 2017, for Possession Audio/Video/Image Device (A16) and Substance Possession (A12). (Id. at ¶ 18; Doc. No. 75-3: Carver Aff., Ex. B). Plaintiff was placed on control status on December 11, 2017, and he was released to modified housing on June 1, 2018. The monitoring of Plaintiff resumed on June 1, 2018, due to him being placed in regular population. (Doc. No. 75-1 at ¶ 10 & Ex. A). In his role as the Security Risk Group Intelligence Officer (“SRGIO”) at Scotland, Cameron Gaddy continued to monitor Plaintiff's activity due to the lack of time he had been housed in regular population. (Id. at ¶ 10).

         c. Plaintiff's ...

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