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Gochie v. Beaver

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

May 13, 2019

GARY D. GOCHIE, Plaintiff,
v.
KEN BEAVER, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on initial review of Plaintiff's Second Amended Complaint, (Doc. No. 20). Plaintiff is proceeding in forma pauperis. See (Doc. No. 11). Also pending is Plaintiff's “Motion for Copies, ” (Doc. No. 21).

         I. BACKGROUND

         Pro se Plaintiff is a North Carolina inmate who is currently incarcerated at the Alexander Correctional Institution. Plaintiff has filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983 in which he complains about the conditions of his confinement at Alexander C.I. Plaintiff names as Defendants: Alexander C.I. Superintendent Ken Beaver, Assistant Superintendent Eric Dye, Unit Manager Kenny Boteat, and Assistant Unit Manager Elizabeth Powell.

         Construing the Second Amended Complaint liberally and accepting it as true, Plaintiff has been unable to obtain legal help from North Carolina Prisoner Legal Services (“NCPLS”) and the Court will not appoint counsel even though his claim is just. There are no law books in the prison library, there is no law library in North Carolina prisons, there are no local rules or federal rules in the prison libraries and inmates cannot get copies of legal filings. Plaintiff had to file for an extension of time to file an amended complaint because the prison would not sell him a pen or pencil or give him carbon paper to do his legal work. He argues that, “[e]ven if [his] claim fails to show any ‘actual injury.' The above listed cases show that my fight to the courts were still denied.” (Doc. No. 20-1 at 2). The lack of law libraries and refusal to provide someone trained in the law are the reason why more cases are not pending against the North Carolina Department of Public Safety (“NCDPS”). Inmates do not understand how many rights are violated daily or how to go about stating a claim, which allows prisons to get away with unconstitutional conditions of confinement. The courts should not allow this to continue. The prisons should install computers for legal use with access to legal research sites like LexisNexis that would be cost effective and would not pose a security risk. At one point Plaintiff was not being given pens or pencils and he was unable to buy them because he was on “Canteen Restriction.” (Doc. No. 20-1 at 12). Plaintiff had to barter and trade which is against policy. Plaintiff is not trained in the law and “[t]he Courts have denied [his] case and in doing so quoted cases that I've no way to look up…. That is actual injury. Because I can not properly rebut.” (Doc. No. 20-1 at 11).

         Plaintiff said that his First Amendment rights were being infringed but “Judge Whitney said [he] didn't claim a factual element” so Plaintiff is enclosing the paper that was sent to him by the mailroom at Alexander with an attached page from the prison rule book. (Doc. No. 20-1 at 3). The prison is supposed to notify the inmate of a denied publication. NCPDS policy says the inmate may receive any book or mag sent by a distributor who isn't on the “ban” list. If it is on the list, it can be returned at inmate expense or destroyed, and the sender is notified by the prison. NCDPS policy isn't being followed; none of the books Plaintiff received were on any ban list and he was never asked to send back or destroy a book, nor was he notified by the prison that any book was to be returned. Plaintiff has never had a book denied for contraband and no contraband has been found in any book addressed to him. All his books are from distributors, book stores, or nonprofit organizations. The prison pays someone to look through each book. On January 15, the prison received a stamped letter to Plaintiff from his birth mother. He was not given the letter until January 23, eight days later. (Doc. No. 20-1). He has been sent a card from one person and three letters from Katie Leeson in the last three weeks. He has not received any of these pieces of mail. Plaintiff is being denied books for his education and rehabilitation such as “Brainfeed” books. Denying or holding mail from loved ones and friends causes emotional strain. Plaintiff's birthday was January 28 and he received no mail from loved ones because the prison is holding it. His daughter's birthday was on February 7, Plaintiff mailed her 10 days ago and has not yet received a response from her. Plaintiff has yet to receive a letter that was sent 24 days ago. A year ago, a staff member at prison told them that the prison now has an x-ray machine to examine books. Federal law and prison policy say that “at no time may a Prison hold mail more than 24 hrs after it was received.” (Doc. No. 20-1 at 4). In the note sent to Plaintiff by the mailroom, no claim or reason was given, and no security can explain the note as all mail is screened. No. justifiable reason can be given. Equal protection of the law applies. (Doc. No. 20-1 at 8). Plaintiff has attached several documents to his Second Amended Complaint including a note purportedly from Alexander C.I.'s mailroom staff stating “Alexander Correctional Institution will no longer accept free books unless it is from a religious distribution center or a legal distributor. Please stop all orders to receive free books. All free books are being returned to sender. Mail room staff.” (Doc. No. 20-1 at 15).

         The prison is not filing grievances as they should. When grievances are sent to headquarters they get returned and Plaintiff is told to file through the chain of command. The refusal to file or process grievances is denying Plaintiff and others administrative remedy. (Doc. No. 20-1 at 5). Plaintiff notified the “heads of Alexander C.I.” that Defendant Powell is not filing grievances and administration did nothing to correct the problem. The person who Powell reports to, Boteat, did not care that Powell was not doing her job. (Doc. No. 20-1 at 5). Plaintiff tried to file a remedy but “they” refused to do so and now the matter is for the courts to grant “remedy and reimbursement” (Doc. No. 20-1 at 6). The prison can be made to pay sanctions or the Court can order it to follow the policies that it is ignoring. The prisons do their best to not allow inmates to gain proof. They do not have cameras, the privilege to use copy machines, or email. Group movements, even when nonviolent, are considered riots and result in solitary confinement, loss of privileges, three or more months of “Mod Housing, ” i.e. 24-hour lockdown, loss of gain time, increase in custody level, security risk group designation. (Doc. No. 20-1 at 7). The courts could have ordered videos. The courts can order a record of grievances which are properly filed digitally. Prison officials acted with deliberate indifference by ignoring his grievances about “issues.” (Doc. No. 20-1 at 8). The exhibits show that Plaintiff went to higher and higher administration at Alexander C.I. but his issues were still ignored.

         The prison was forcing inmates to take cold showers. For “days on end, ” they only had cold water in the cells so inmates could not take “‘bird baths' (sink baths) make soups or warm coffee.” (Doc. No. 20-1 at 9-10). It is required in maximum security in North Carolina that a nightlight be installed in every cell for security reasons and for the wellbeing of inmates. Plaintiff filed a request and went through the full grievance procedure about his nightlight being out. It was like that for over 120 days, in a cell where he was locked in solitary confinement 24 hours per day, seven days per week. (Doc. No. 20-1 at 10). Extremely low light for reading is harmful to the eyes which is “actual injury.” (Id.). Lights after the last formal count are to stay off until morning's first official count unless staff is doing a cell search or strapping someone down. Many nights the main cell lights come on for hours “without a security reason.” Video footage would prove this. Plaintiff believes that federal law requires lights to be out for at least eight hours a day. Sleep deprivation and cold showers are torture pursuant to the Geneva convention and is subjecting them to actual injury. (Doc. No. 20-1 at 10). Inmates are forced to wear dirty clothes which is inhumane and puts inmates at risk of disease and infection. Written policy says inmates are not allowed to personally wash or dry clothing in their cells. This forces them to wear old underwear. This is cruel and unusual punishment and actual injury.

         In the section of the complaint for addressing injuries, Plaintiff states “I've suffered relief from injustice of my Human Rights I've suffered refusal to courts. I've suffered 8th Amendment violations to my Rights of proper lighting, hot water and properly prepared food.” (Doc. No. 20 at 5).

         Plaintiff argues that the current administration is unfit and should be replaced and that Powell should be demoted or fired because she “was one of the biggest contributors to the injustices in ‘lockup.'” (Doc. No. 20-1 at 13). Plaintiff seeks nominal, compensatory, and punitive damages, and injunctive relief. (Doc. No. 20 at 5).

         II. STANDARD OF REVIEW

         A “court shall dismiss [a prisoner's] case at any time if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 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)). 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 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 and Bivens). 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.

         III. ...


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