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Carter v. Lassiter

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

November 14, 2019

GIVONNO CARTER, Plaintiff,
v.
KENNITH LASSITER, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER comes before the Court on Defendants' Motion for Summary Judgment, (Doc. No. 31).

         I. BACKGROUND

         Pro se incarcerated Plaintiff's Amended Complaint, (Doc. No. 6), passed initial review on his claim that he was deprived of property without due process as part of Marion Correctional Institution's Rehabilitative Division Unit (“RDU”) Program. Defendants have filed a Motion for Summary Judgment, (Doc. No. 31), that is pending before the Court for consideration.

         (1) Amended Complaint (Doc. No. 6)

         Plaintiff alleged that he was transferred to the RDU program at Marion C.I. on May 4, 2017, that he was forced to sign papers saying that he was participating in the RDU program voluntarily, and that his personal property including mail literature, lyrics and other written work, a manuscript, legal material, religious material, hygiene items, books, and magazines, were confiscated from him. He was not allowed to keep these materials and was not allowed to use the facility storage unit even though none of his property exceeded two cubic feet, which violates DPS Policy and Procedure regarding inmate personal property. Plaintiff seeks punitive damages and injunctive relief.

         (2) Motion for Summary Judgment (Doc. No. 31)

         Defendants argue that summary judgment should be granted in their favor because Plaintiff cannot maintain individual capacity claims against Defendants, Plaintiff cannot maintain an official capacity claim against Defendant Lassiter for declaratory and injunctive relief because he has retired, that there was no deprivation of Plaintiff's property, even if the removal of Plaintiff's property was an unauthorized act he has an adequate remedy in state court, and that Defendants are entitled to qualified immunity.

         (3) Plaintiff's Response (Doc. No. 35)

         Plaintiff was informed of the importance of responding to Defendants' motion as well as the legal standard applicable to summary judgment motions. (Doc. No. 34).

         Plaintiff filed an unverified Letter, (Doc. No. 35), arguing that all Defendants are supervisors who allowed Plaintiff's rights to be violate and that they refused to speak to Plaintiff about the issue personally and that they failed to correct the issue. Plaintiff claims that he was on segregation on November 29, 2017 through May 29, 2018 during which time he was on radio restriction and that this action was not justified by any control purposes, which violated due process with regards to his property and disciplinary proceedings, and deprived him of his First Amendment right to access the press. Defendants illegally took some of Plaintiff's personal property upon his entry to Marion C.I. even though it did not exceed two cubic feet, including books, religious materials, mail, legal materials, hygiene items, magazines, a manuscript, and loose papers. Plaintiff was only allowed to keep 100 loose sheets. Plaintiff was forced to get rid of the excess property or send it home. He was not allowed to keep it in his possession as permitted by policy, which states that inmates can keep two cubic feet of property. The officials violated that policy and the Fourteenth Amendment. Defendants allowed Plaintiff's civil rights to be violated when they had the power to stop those issues. Plaintiff's evidence proves that Defendants are the problem and grievances state the facts. Plaintiff wrote grievances and requested forms and other means of communication that informed all Defendants that his rights were being violated. Defendants are the prison and program supervisors and they have the authority over constitutional violations at the Marion C.I. facility. They failed to do so and allowed Plaintiff's rights to be violated. Plaintiff seeks monetary damages and injunctive relief, i.e., prohibiting Defendants from taking his personal property within the two cubic foot limit and his radio without due process, and asserts his claims against Defendants in their individual and official capacities.

         (4) Evidence[1]

         (A) Affidavit of Gregory Swink (Doc. No. 33-1)

         Defendant Sink is Correction Programs Director at Marion C.I. As part of his job duties, he supervises and operates the RDU. He oversees the provision of programs for the rehabilitation of inmates in the prison system, which includes being accountable for the development, implementation, and maintenance of certain program activities for inmates.

         The RDU program was started in February 2016 to “offer an alternative to offenders who are assigned to long-term restrictive housing for control purposes.” (Doc. No. 33-1 at 5). The overarching goal of the program is to “allow an offender that would otherwise be assigned to long-term restrictive housing the opportunity to work toward a custody and control status that is more akin to general population status.” (Doc. No. 33-1 at 5). The program attempts to accomplish this goad through specialized programming set up in phases. Enrollment in RDU is not voluntary. Offenders who are enrolled in the program are selected from a pool of eligible offenders. Individuals in that pool who are aggressive or have a history of assaultive infractions are typically selected to become members of the RDU. These offenders are often “exceptionally dangerous to staff as well as other inmates.” (Doc. No. 33-1 at 5). As a member moves through the phases of the program, their custody and control status moves from the initial entry level phase, which is virtually indistinguishable from long-term restrictive housing for control purposes, toward a status that is virtually indistinguishable from general population status. Once an offender becomes a member of RDU, they will remain enrolled in the program until they complete it or are moved out of it as a result of no longer meeting one of the eligibility criteria or some other exigent circumstance.

         At any point in time, RDU members can be categorized as “participating” or “non-participating.” (Doc. No. 33-1 at 6). Members of RDU who are actively engaged in the programming and are compliant with the programming are considered participating members. Members who actively refuse to engage in the required RDU programming or commit disciplinary infractions are considered non-participating members. A participating member of RDU can become non-participating as a direct result of his own behavior. For instance, a participating member will be considered non-participating following a serious infraction or series of infractions, or if he actively refuses to engage in the required RDU programming. Each week, a committee comprised of facility administration, unit management, medical, and mental health staff meets to evaluate special offender cases, including non-participating members of the program. Non-participating members of the program can request to participate in the program at any time through case management personnel and are offered the opportunity to participate in the program on a weekly basis. Non-participating members who express the desire to engage or re-engage in RDU programming are moved to participating status as soon as possible.

         Non-participating members are housed in E-unit under conditions that are virtually indistinguishable from long-term restrictive housing for control purposes. Participating members are housed in various units throughout the facility depending on their stage of the program. Completion of the RDU program typically requires 12 to 15 months of participation by members. When a member becomes non-participating, they are not typically ...


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