United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE
March 2, 2018, Samuel Ellis ("plaintiff'), a state
inmate proceeding pro se and without prepayment offees, filed
a complaint under 42 U.S.C. § 1983. See [D.E. 1, 2, 7].
The court allowed the action to proceed, but denied
plaintiffs request for injunctive relief [D.E. 8]. Plaintiff
moved for, among other things, leave to file an amended
complaint [D.E. 18]. The court granted plaintiff leave to
amend [D.E. 22]. On December 11, 2018, plaintiff filed an
amended complaint [D.E. 23].
amended complaint is subject to initial review under 28
U.S.C. § 1915A. Although the court allowed plaintiffs
original complaint to proceed, the court is not precluded
from conducting such initial review again. See 28 U.S.C.
§1915(e)(2) ("the court shall dismiss the case
at any time if the court determines that... (B) the
action or appeal-(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief") (emphasis added). Accordingly, the court
conducts further initial review on plaintiff s earlier
filings. For the reasons discussed below, the court dismisses
prisoner seeks relief in a civil action from a governmental
entity or officer, a court must dismiss the complaint if it
is "frivolous, malicious, or fails to state a claim upon
which relief may be granted." 28 U.S.C. § 1915A(a),
(b)(1). A frivolous case "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490
U.S. 319, 325 (1989). Legally frivolous claims are
"based on an indisputably meritless legal theory and
include claims of infringement of a legal interest which
clearly does not exist." Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994) (quotations omitted). Factually
frivolous claims lack an "arguable basis" in fact.
Neitzke. 490 U.S. at 325.
standard used to evaluate the sufficiency of a pleading is
flexible, and a pro se complaint, "however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation
omitted). Erickson. however, does not undermine the
"requirement that a pleading contain 'more than
labels and conclusions.'" Giarratano v.
Johnson, 521 F.3d298.304n.5 (4thCir. 2008)(quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)); see Ashcroft v. Iqbal, 556 U.S. 662, 677-83
state a claim under [section] 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988); Philips v. Pitt Cnty. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009). A section 1983 plaintiff also
must allege the personal involvement of a defendant. See
Iqbal. 556 U.S. at 676; Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 691-92 (1978); Wright v.
Collins, 766 F.2d 841, 850 (4th Cir. 1985).
amended complaint again generally alleges that state actors
with North Carolina Department of Public Safety
("DPS") interfered with his practice of Wicca at
Pender Correctional Institution ("Pender"), in
violation of the First Amendment's Free Exercise Clause
and the Religious Land Use and Institutionalized Persons Act
of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc
to 2000cc-5. See Am. Compl. [D.E. 23] at ¶l.
Plaintiff again names as defendants: DPS Director of Prisons
Kenneth Lassiter ("Lassiter"); DPS Director of
Chaplaincy Services Betty Brown ("Brown"); and
Pender Superintendent Bryan Wells ("Wells").
Id. at ¶¶ 9-11. Plaintiff now also seeks
to add as defendants the following employees at Pender:
Sergeant James ("James"); Correctional Officer
("CO") Trantham ("Trahtham"); and CO
Hernandez ("Hernandez"). Id. at
reiterates many of the claims from his initial complaint.
Compare Am. Compl. [D.E. 23] at ¶¶ 20-28,
wjth Compl. [D.E. 1] at ¶¶ 11-22. Plaintiff again
alleges that a "Wiccan Bible" ("the
book") was confiscated by Pender mail-room
staff. Am. Compl. [D.E. 23] at ¶¶20-23.
Plaintiff also again alleges that DPS policies discriminate
against Wicca practitioners. Id. at ¶¶
24-28. Plaintiff initially alleged that Wiccans are only
allowed eight services per year and that DPS does not allow
Wiccans to celebrate "monthly Esbats" with the new
and full moons. See Compl. [D.E. 1] at ¶¶16-18. In
his amended complaint, by contrast, plaintiff admits that,
after he filed this action, Pender policy subsequently was
amended to officially allow the observation of Wiccan
"Esbats," but he asserts such services had not yet
occurred. Am. Compl. [D.E. 23] at ¶ 24. Plaintiff again
contends that, although Wicca is a "nature based"
religion, DPS has denied specific ceremonial items or
required that substituted items be a photograph of the item
or made from "synthetic materials such as
Styrofoam." Id. at ¶25. Plaintiff again
alleges that, unlike other faith groups, Wiccan prisoners are
denied weekly religious "study time." Id.
at ¶26. Plaintiff further alleges that another DPS
policy-suspending services for religious groups without an
"outside volunteer" leader and six persons in
attendance-is arbitrary and discriminatory because, although
an "inmate faith helper" may substitute when an
"outside volunteer" is unavailable, becoming an
"inmate faith helper" makes that individual "a
'target' for frivolous write-ups," and because
the hypothetical absence of the "inmate faith
helper" would lead to cancellation of services.
Id. at ¶27. Plaintiff again contends that
finding an "outside volunteer" for Wiccan services
also is difficult "because of the harassment and
prejudices they are subjected to by NCDPS staff."
Id. at ¶28.
now also contends that he was the victim of retaliation for
filing this action. Plaintiff alleges that, after an
infraction on June 3, 2018, plaintiff was transferred to
protective housing. Id. at ¶¶ 29-30, 33.
When Trantham delivered plaintiffs property to protective
housing, various personal items, including legal documents
and religious property, were damaged or missing. Id.
at ¶¶ 29-30. Plaintiff alleges that James,
Trantham, and Hernandez processed his property on that date.
Id. at ¶ 31. When plaintiff later sought the
return of the missing property, he "was told his art
supplies were 'tied up in litigation' since
[plaintiff] filed a lawsuit." Id. at ¶ 34.
Plaintiff asserts that, shortly after this action was allowed
to proceed, plaintiffs "minor write-up" on April
11, 2018, for "having a couple of over-the-counter cold
pills in the same bottle with his acid reflux medication,
Pepcid, and 'white out'" was "brought to
bear." Id. at ¶ 32. Plaintiff alleges
prisoners ordinarily are not punished so distant in time from
the infraction date. Id.
seeks the following relief: a declaration that defendants
Lassiter, Brown, and Wells violated the First Amendment and
RLUIPA and substantially burdened plaintiffs religious
practice by denying him the book; a declaration that
defendants Wells, James, Trantham, and Hernandez violated
plaintiffs constitutional rights "by the willful and
deliberate damage and loss of plaintiff s personal, legal,
and religious property in retaliation for plaintiffs
exercising his right to access the courts"; an
injunction ordering that the book be removed from the DPS
banned publication list and be delivered to plaintiff; an
injunction ordering defendants Lassiter, Brown, and Wells to
implement new policy that mirrors the Wiccan religious
policies of the Federal Bureau of Prisons and abolish DPS
policies as to the "faith-group helper" and
"six-person attendance" requirements; an injunction
allowing Wiccan inmates to possess certain personal religious
property, directing chaplaincy services to supply corporate
religious items, and provision of "the 'feast
meal' at the conclusion of the eight seasonal
Sabbats"; an "injunction requiring that a permanent
outdoor 'circle' and 'fire pit' be
constructed and that Wiccan services be conducted outdoors
unless inclement weather causes the service to be held
indoors" and requiring "the institution's
chaplaincy service [to] provide grape juice and some form of
plain sweet cake or sweet bread for the 'wine &
cake' ritual which is a part of every Wiccan Sabbat and
Esbat"; an injunction ordering defendants Wells, James,
Trantham, and Hernandez to replace plaintiffs court
transcripts; compensatory damages for the loss of personal,
legal, and religious property; and attorneys fees.
Id. at 13-16.
plaintiffs contentions are either moot or fail to state a
claim upon which relief can be granted. Due to plaintiffs
intervening transfer to Albemarle Correctional Institution,
see [D.E. 24], plaintiffs specific claims seeking declaratory
and injunctive relief premised on purported RLUIPA and First
Amendment violations at Pender, such as the lack of religious
"study time" for Wiccan inmates, see Am. Compl.
[D.E. 23] at ¶ 26, appear to be moot. See Rendelman
v. Rouse,569 F.3d 182, 186 (4th Cir. 2009) ("[A]s
a general rule, a prisoner's transfer or release from a
particular prison moots his claims for injunctive and
declaratory relief with respect to his incarceration
there." (citation omitted); Taylor v. Rogers,781 F.2d 1047, 1048 n.l (4th Cir. 1986) (a prisoner's
transfer mooted his request for declaratory and injunctive
relief but not as to monetary damages). Because there is no
indication that plaintiff will be returned to Pender, and
because plaintiff has not alleged a "real and immediate
threat" of repetition of the alleged ...