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Roberts v. Perry

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

June 25, 2019

FRANK L. PERRY, et al., Defendants.


          Frank D. Whitney Chief United States District Judge '

         THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment, (Doc. No. 33).

         I. BACKGROUND

         Pro se Plaintiff filed this action pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The Amended Complaint passed initial review, (Doc. Nos. 16, 17), and Plaintiff previously filed a Motion for Summary Judgment that was denied, (Doc. Nos. 26, 27). Defendants have now filed a Motion for Summary Judgment that is before the Court for consideration.

         (1) Amended Complaint [1] (Doc. No. 16)

         Pro se Plaintiff, who is currently incarcerated at the Franklin Correctional Center, filed this action pursuant to 42 U.S.C. § 1983 and RLUIPA for incidents that allegedly occurred at Mountain View Correctional Institution. He names as Defendants the North Carolina Secretary of Prisons Eric Hooks (formerly Frank L. Perry), and the following employees of Mountain View C.I.: Administrator Mike Slagle, Mailroom Supervisor Lynn Ollis, and Correction Officer Grear.

         Plaintiff alleges in his verified Amended Complaint that five religious books arrived for him at Mountain View C.I. on June 24, 2016. They were authored by Pastor Everett Ramsey of Faith Baptist Church, and they were published by James Nelson Publishers and/or Pastor Ramsey and satisfied the DPS definition of “published.” Defendant Ollis rejected the publications because they did not come from a legitimate publisher or marketer and Plaintiff appealed. On June 26, 2016, Plaintiff sent Defendant Slagle a request form informing him of Ollis' actions but he failed to respond or take any remedial action, which shows deliberate indifference. On July 12, 2016, Plaintiff sent a letter to Perry notifying him of Ollis' actions and he failed to respond or take any remedial action, which shows deliberate indifference. On July 21, 2016, Plaintiff filed a grievance and received an unsatisfactory response and he appealed through step-3, which was denied.

         On August 15, 2016, Correctional Officer Grear confiscated Volume 2 of Lawrence Buchard's “The Covenant Heritage Series” from Inmate Eddie Money. Plaintiff informed Defendant Grear that he had loaned the book to Inmate Money as authorized by DPS policy. However, Grear said the book was Aryan Brotherhood material and therefore contraband. The book is religious regarding his ancestral religious practice and does not contain any gang-related subject-matter. Confiscation was the sole product of Grear's hatred of Plaintiff because of his race and ancestral religion and tries to use the security policies to punish Plaintiff. Plaintiff had received the book while at Avery C.I through proper mailroom screening. It was also inspected upon his arrival at Mountain View C.I., and he had it for over a year at Mountain View C.I. where it was inspected repeatedly without incident. Plaintiff was allowed to receive Volumes 4 and 5 of the book. Plaintiff filed a grievance September 7, 2016, received an unsatisfactory response, and appealed through step-3 which was denied.

         Plaintiff's incoming correspondences with Ed Sommerville suddenly stopped while Plaintiff was housed at Mountain View C.I., without notice. Plaintiff came to suspect that Defendant Ollis was responsible. This suspicion was confirmed on June 6, 2016, when Plaintiff found out that Sommerville's correspondences had been returned to him by mailroom staff. On July 11, 2016, Plaintiff wrote to Ollis on a request form and asked her to explain why the religious and political articles had been returned without notice or due process procedures, which are mandatory. On July 13, 2016, Defendant Ollis rubber stamped the request, saying the mailings had been returned due to absence of prisoner number in the address, which is untrue. On July 15, 2016, Plaintiff wrote to Defendant Perry informing him of Defendant Ollis' abuses but he did not respond or take any remedial action, which shows deliberate indifference. On October 22, 2016, after Plaintiff was transferred to Craggy C.I., he received two letters from Sommerville informing another Mountain View C.I. inmate of his futile attempts to mail religious and political printouts to Plaintiff. Plaintiff filed another grievance on October 22, 2016, which was returned without processing as untimely.

         Plaintiff began studying Christian literature in 2001, received “Theophany” in 2004 which altered the course of his life, was invited to enroll in a “prototypical Seminary Extension Program” in 2007, and in 2009, received ordination from the Ministerial Seminary of America, adopted a “Christian identity, ” and began incorporating the “Hebrew Roots Movement” into his belief system, in May 2017 he was given the opportunity to prepare lesson plans and conduct weekly Sabbath services, and in 2018, he became the first officially designated “faith helper” in the Western District of North Carolina. (Doc. No. 16 at 14-16, 22). Yaweh grants his chosen people who make the study of scripture the primary focus of their daily lives. (Doc. No. 16 at 18). Plaintiff's ability to perform these “divinely assigned duties” is measured by the amount of “curricular information that he is allowed to access, research, and assimilate in the advancement of his own spiritual maturation….” (Doc. No. 16 at 18). When the sources of information diminish, the practice of his religion is diminished. The confiscated material does not advocate violence and no rational relationship between stopping incoming religious publications and a compelling government interest, which has substantially burdened his religious practice. (Doc. No. 16 at 20).

         Plaintiff requested judicial notice of the absence of hate, violence, white supremacist, racism, anti-Semitism, domestic terrorism, criminal activity from his beliefs, and that the Defendants' grievance responses are silent regarding a compelling government interest.

         Plaintiff requested costs, injunctive relief, and “all punitive or remedial relief this court deems appropriate.” (Doc. No. 16 at 29).

         (2) Defendants' Motion for Summary Judgment (Doc. No. 33)

         Defendants argue that Plaintiff has failed to demonstrate the existence of a genuinely disputed material fact that the conduct he complains of is substantially burdensome to the exercise of his religion. The policy at issue placed restrictions on religious exercise and made it more difficult but did not pressure Plaintiff to violate or abandon the precepts of his religion. Plaintiff admits that he had access to other volumes of the legal materials to study his faith. Further, the publication and mail policies at issue are valid because they are reasonably related to the legitimate penological interests of controlling contraband and security problems. Plaintiff has also provided no genuine issue of material fact to show that Defendants acted with the requisite intent.

         Plaintiff cannot proceed on claims against Defendant Perry on the theory of respondeat superior because there is no such liability under § 1983. He cannot proceed against Defendants Perry or Slagle on the theory of supervisory liability because the allegations fail to show that either of these Defendants had knowledge of a pervasive or unreasonable risk of constitutional injury to Plaintiff.

         Plaintiff cannot recover monetary damages from Defendants in their official capacities because they are barred by the Eleventh Amendment and Defendants are entitled to qualified immunity from any claims for monetary damages in their individual capacities because their conduct was neutral and rational. Further, Plaintiff has not demonstrated any compensable damages for the alleged violation of his First Amendment rights aside from possibly asserting emotional distress or mental anguish and are not reasonably quantifiable.

         (3) Plaintiff's Response (Doc. No. 37)

         The Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), on April 26, 2019 informing Plaintiff of the legal standards applicable to summary judgment motions and ordering him to file a response within 14 days. (Doc. No. 36). The Court cautioned Plaintiff that “[f]ailure to to file a timely and persuasive response will likely lead to the relief that Defendant [Harwood] seeks.” (Doc. No. 36 at 3).

         Plaintiff file a Response to the Motion for Summary Judgment that attempted to state a claim for denial of access to the courts, which was denied, and was construed in part as a Motion for Extension of Time to Respond, which was granted until June 7, 2019. (Doc. Nos. 37, 38). That time limit has expired and Plaintiff has not filed any further response.[2]

         (4) Evidence [[3]]

         (A) Affidavit of Michael A. Slagle (Doc. No. 35-1)

         Defendant Slagle is the Superintendent of Mountain View C.I. He is familiar with NCDPS policies and procedures and is trained and experienced in the management of inmates like Plaintiff. As the Superintendent, Slagle has access to the Offender Population Unified System (“OPUS”), an electronic database containing comprehensive inmate records as well as NCDPS policies and procedures, Mountain View Standard Operating Procedure (“SOP”) and documents related to the religious services and practices at Mountain View.

         Defendant Slagle searched his records and found a letter from Plaintiff dated December 9, 2016; he did not find any correspondence from Plaintiff dated June 26, 2016. Anytime Slagle receives correspondence from an offender he takes it seriously and either investigates it, provides a response, or forwards it to the appropriate section for review and response. He does not ignore or dispose of any offender correspondence directed to him.

         While reviewing Plaintiff's records, he reviewed documents that show Plaintiff appealed the decision to reject publications that were sent to him from Faith Baptist Church because they did not meet the guidelines to be considered approved from a legitimate marketer and/or distributor. Plaintiff's appeal was forwarded to the Inmate Publication Review Committee which reviewed the publications and determined that the source of the publications/materials was not a legitimate publisher or distributor of publication material. Plaintiff chose to destroy the publications on August 2, 2016.

         NCDPS policy provides procedures for how offenders confined at facilities such as Mountain View can receive and possess publications that include hardback and paperback books, newspapers, magazines, newsletters, and vendor catalogues. The NCDPS publication policy is “necessary to control security problems caused when contraband such as drugs, weapons, money, and tools that can be used to effect an escape are smuggled in books, magazines, and newspapers from unvetted sources or visitors.” (Doc. No. 35-1 at 3). These searches are done to “reduce and prevent the incidents of contraband, to include drugs and weapons, which compromise the safety of the inmate and officers in the facility. (Doc. No. 35-1 at 3-4).

         Offenders at Mountain View receive large quantities of mail on a weekly basis for the 908 offenders housed there. It is estimated that thousands of pieces of mail are received on a weekly basis. All incoming mail is searched per policy and staff find contraband in the mail frequently consisting of items such as drugs, tobacco, and Security Risk Group paraphernalia. Recently, staff found a large quantity of drugs coming through the mail disguised as religious material from a church, “showing the need for a strong policy regarding who and where mail and publications can be received from.” (Doc. No. 35-1 at 4).

         As Superintendent, Slagle is responsible for developing and implementing a facility contraband control procedure consistent with NCDPS Contraband Control Policy (Exhibit D). (Doc. No. 35-1 at 4). Mountain View's SOP regarding prisoner personal property includes rules related to religious materials and unauthorized property or contraband (Exhibit E) and a policy on religious activities that includes rules related to religious items and practices (Exhibit F).[4]

         NCDPS policies and procedures and Mountain View SOPs related to inmate mail privileges, receipt and possession of publications, contraband control, and the possession of religious materials or items “were not promulgated with any intent to discriminate against Plaintiff or his religious faith, but are necessary to maintain the safety of the inmates and officers in the facility.” (Doc. No. 35-1 at 5). Slagle denies that, in performing his duties as the Superintendent at Mountain View, that he “violated ...

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