United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge
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).
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).
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).
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. (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).
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).
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).
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
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).
Relevant NCDPS Policy
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).
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
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
(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
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).
Plaintiff's SRG Status
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).
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
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