United States District Court, W.D. North Carolina, Statesville Division
GARY D. GOCHIE, Plaintiff,
KEN BEAVER, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
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
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).
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.
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.
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).
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).
STANDARD OF REVIEW
“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).
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.