MITCHELL v. FORSYTH COUNTY SHERIFF OFFICE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JUSTIN RANDOLPH MITCHELL, )

Plaintiff,

v. 1:17CV879

FORSYTH COUNTY SHERIFF OFFICE,

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER OF

UNITED STATES MAGISTRATE JUDGE

This is a pro se civil rights action filed under 42 U.S.C. § 1983 by Plaintiff Justin

Randolph Mitchell, an inmate in the North Carolina Department of Correction. His central □

allegations in this case are that some of the Defendants opened and/or improperly interfered

with his legal mail and searched his legal and medical papers outside his presence. Plaintiff

names as Defendants 1) the Forsyth County Sheriffs Office, 2) former Sheriff of Forsyth

County, North Carolina, William T. Schatzman, and 3) current or former employees at the

Forsyth County Detention Center, Robert Slater, R.L. Settles, Officer Hinton, and Corporal

Fleming. Following discovery in the case, Defendants filed a Motion for Summary Judgment

[Doc. #48], which has now been fully briefed by the parties and is before the Coutt.

Plaintiffs Claims

The Complaint alleges that, on September 2, 2016, while housed at the Forsyth County

Detention Center, Plaintiff received legal mail from the North Carolina Industrial Commission

that had been opened and read outside his presence in violation of the Detention Center’s

mail policy. (Complaint [Doc. #1], § IV(D).) It further alleges that this occurred again on

_ November 10, 2016. (1d., Attach. Claim Two.)

The Complaint further alleges that on January 20, 2017, Plaintiff was allegedly removed

from his cell and placed in a multi-purpose room so that his cell could be searched. (Id.,

Attach., Claim Three.) Defendant Fleming allegedly passed though the multi-purpose □□□□

and searched Plaintiffs cell for half an hour before returning and questioning Plaintiff

concerning how he obtained a document containing the names of medical personnel. (Id.)

Plaintiff told him that he obtained it through a subpoena connected to another civil lawsuit he

had filed. (Id.) The Complaint asserts that Defendant Fleming read Plaintiff's legal documents

and medical records during the search. (Id., § II(D), Attach.)

Plaintiffs next set of allegations concerns another suit he filed in this Court. The

Complaint states that the Court sent Plaintiff legal mail connected to that case in mid-May of

2017. (d., § IVD), Attach., Claim Four.) Defendant Hinton, who was working to sort mail,

sent the legal mail to a detainee on another floor. (id.) The Complaint claims that an officer

on that floor opened and read the mail before giving it to the other detainee, who returned it

to a guard. (Id.) An officer listed as Sgt. Ramirez then delivered the mail to Plaintiff. (1d.)

The Complaint next alleges that, on July 4, 2017, Plaintiff received legal mail from an

attorney representing the defendants in one of Plaintiffs other lawsuits. (Id., Attach., Claim

Five.) Because that mail had also been opened outside his presence, Plaintiff called a guard

and complained. (Id.) He later learned that Defendant Hinton had opened the mail because

she believed she felt metal in the envelope. (1d.)

Finally, the Complaint alleges that on August 12, 2017, Plaintiff received more mail

from the same attorney. (Id., Attach., Claim Six.) The mail arrived on a weekend and was

held for four days until an officer not named in this lawsuit came to work on August 16, 2017.

(Id.) Plaintiff then filed the present Complaint.

Based on these allegations, Plaintiff is suing the Forsyth County Sheriff's Office in its

individual and official capacity, Defendants Schatzman, Hinton, and Fleming in their

individual and official capacities, and Defendants Slater and Settles in their official capacities

(Id., § I1(B); Order [Doc. #10].) He claims that the Sheriff's Office is liable because it

sets policies for the Detention Center, that Defendant Schatzman is liable because he is

responsible for the Detention Center and its inmates, that Defendants Slater and Settle are

liable because they met with him concerning the events in the Complaint, that Defendant

Hinton opened his legal mail outside his presence and negligently sent his legal mail to another

inmate, and that Defendant Fleming improperly read his legal papers and medical documents

while searching his cell. (Complaint, § II(D).)

Defendants’ Evidence

In conjunction with their Brief [Doc. #49] supporting their Motion for Summary

Judgment, Defendants provide three separate affidavits. The first is from Defendant

Schatzman, who states that he was the Sheriff of Forsyth County during the relevant time

petiods, that he had final policy making authority in the Forsyth County Sheriff's Office, and

that it was always the policy, procedure, and custom of that office to comply with the law

regarding inmate rights. (Defendant’s Brief, Attach. 1, {{] 2-6.) Defendant Schatzman hired

officers certified and trained by appropriate organizations. (Id., | 8.) He also mandated that

each detention officer receive on the job training from senior officers and supervisors,

including regarding policy addressing the handling of inmate mail. (Id., {] 9.) The affidavit

includes a copy of that policy as Exhibit A. The policy defines “General Correspondence”

and “Privileged Mail,” with the latter category including legal mail. (Policy, § 589.2.) Relevant

to the present action, it mandates that Privileged Mail “be opened and searched, but not read,

in the presence of the inmate by detention staff to ensure it does not contain contraband.”

(Id., § 589.8(C).)

The second affidavit is from Defendant Hinton. She remains employed in the

Detention Center and was so employed at the time of the incidents alleged in the Complaint.

(Defendant’s Brief, Attach. 2, {| 2-3.) She states that on one occasion she did mistakenly

misditect a piece of mail addressed to Plaintiff by sending it to another inmate. (Id., {/6.) She

further states that she reported her mistake to a supervisor and that Plaintiff also filed a

gtievance concerning the incident. ([d., [J 8, 11.) Defendant Hinton also relates that on

another occasion, she mistakenly opened Plaintiff's privileged legal mail. (Id., {] 9.) She again

reported this to a supervisor and relates that she also spoke to Plaintiff, apologized, and

assuted him that she did not read the contents of the mail. (id.) She concludes by saying that

“ovet the course of several months, [she] mistakenly opened [Plaintiffs] privileged mail

outside his presence twice and misdirected it, unopened, once,” but did not read any of it.

(Id., §] 12.) She also received two disciplinary warnings because of her handling of Plaintiffs

mail. (Id., { 13.)

The third affidavit was submitted by Defendant Hinton’s former supervisor at the

Detention center, David Ramirez. Ramirez states that on May 17, 2017, Defendant Hinton

misdirected Plaintiff's unopened legal mail to another inmate. (Defendant’s Brief, Attach. 3,

He further states that on July 3, 2017, he became aware that an officer other than

Defendant Hinton had opened Plaintiff's legal mail by mistake, that he hand-delivered that

mail to Plaintiff, and that he explained that the mail was not opened by Defendant Hinton.

(Id., {| 4-6.) Based on some of the problems involving Defendant Hinton and Plaintiffs mail,

Ramitez counseled Defendant Hinton on proper legal mail procedures, gave her a disciplinary

warning, and briefly assigned her to other duties. (Id., fff] 8-10.)

In addition to the three affidavits just discussed, Defendants also submitted a

document from Forsyth County Superior Court denying Plaintiff's request to proceed as an

indigent in a civil case in that court on September 11, 2017. (Defendant’s Brief, Attach. 4)

The case named Defendants Schatzman, Slater, and Settles and covered several of the

incidents set out in Plaintiffs current Complaint regarding the opening of his legal mail. The

state court checked a box on a form finding the action to be frivolous and ordering that it be

dismissed. Thete is a handwritten notation on the form that reads “Prior pending federal

action.”

Plaintiffs Evidence

Plaintiff also includes three affidavits, all his own, in opposition to Defendants’ Motion

for Summaty Judgment. In the first affidavit, he basically reiterates the facts from his

Complaint regarding the alleged problems with his mail by stating that in September of 2016

he received mail from the North Carolina Industrial Commission that had been opened, □□□

on November 10, 2016 this occurred a second time, that in mid-May of 2017 mail from this

Court was redirected to another inmate by Defendant Hinton, and that on July 3, 2017 he

received legal mail from an attorney that had been opened outside his presence by Defendant

Hinton. (Plaintiffs Affidavit [Doc. #54].) In his second affidavit, Plaintiff states simply that

the Forsyth County Detention Center has cameras and records video footage that pertains to

this case. (Plaintiffs Affidavit [Doc. #54-1].) He attaches a letter dated September 26, 2017

from “Sgt. Whitt,” the Security Threat Group Commander with the Forsyth County Sheriff's

Office, which states that Whitt reviewed video footage from the search of Plaintiffs legal

paperwork, that several staples were removed as contraband, and that he did not see any action

which would indicate reading of the material. Whitt further states that the papers were

searched on a bench outside a holding cell, giving Plaintiff a clear view of the search.

Plaintiffs third affidavit addresses the alleged search of Plaintiffs cell and states that,

on January 20, 2017, he was taken from his cell to a multi-purpose room, that Defendant

Fleming eventually passed him and went into the dormitory, that Defendant Fleming reentered

the multi-purpose room holding a sheet of paper with the names of medical employees, and

that he questioned Plaintiff as to how he obtained the names. (Plaintiffs Affidavit [Doc. #54-

2].) Plaintiff states that he then showed Defendant Fleming a subpoena he used to obtain the

record with the names. (Id.) He attaches a copy of the subpoena.

Summary Judgment Standard

Summaty judgment is appropriate when no genuine issue of material fact exists. A

genuine issue of fact exists if the evidence presented could lead a reasonable fact-finder to

return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). A court considering a motion for summary judgment must view all facts and

draw all reasonable inferences from the evidence pein it in the light most favorable to the

non-moving patty. Id. The proponent of summaty judgment “bears the initial burden of

pointing to the absence of a genuine issue of material fact.” ‘Temkin v. Frederick County

Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). If the movant catries this burden, then the burden “shifts to the non-moving party

to come fotwatd with facts sufficient to create a triable issue of fact.” Id. at 718-19 (citing

Anderson, 477 U.S. at 247-48). A mere scintilla of evidence supporting the non-moving

patty’s case is insufficient to defeat a motion for summary judgment. See, e.g., Shaw v. Stroud,

13 F.3d 791, 798 (4th Cir. 1994); see also Anderson, 477 U.S. at 248 (non-moving patty may

not rest upon mere allegations or denials).

Discussion

Defendants argue that all of Plaintiffs claims should be dismissed based on the

doctrines of res judicata ot collateral estoppel because of the dismissal of the case Plaintiff filed

in Forsyth County Superior Court. As they note, this case was possibly dismissed as frivolous.

However, there is only a checked box to indicate that this is the case. A handwritten notation

on the document provided by Defendants in support of their argument actually indicates that

the dismissal occurred because of a pending action in federal court. Given the lack of any

explanation for the dismissal and the ambiguity of the reasons for the dismissal, the Court will

not rely on this document or address this issue further.

Turning now to Plaintiff's official capacity claims against Defendants Slater and Settles,

Plaintiff states in his Response Brief [Doc. #53] that he agrees that the Court should grant

summaty judgment at to these two defendants. (Response Brief at 20.) The Court notes that

the Complaint sets out no viable claim against these two Defendants in any event, but it will

act on Plaintiff's concession and dismiss Plaintiffs claims as to Defendants Slater and Settle.

As to the remaining Defendants, most of Plaintiffs allegations concern the handling

ot mishandling of his legal mail by Defendant Hinton. Although the parties’ evidence

disagrees somewhat regarding certain specific facts and dates, there is no material dispute that

Defendant Hinton misdirected Plaintiffs legal mail on one occasion and improperly opened

it outside his presence on one or two other occasions. Plaintiffs Complaint alleges two

additional instances of improper opening of his mail outside his presence, but there is no

allegation or evidence that Defendant Hinton or any other Defendant named in the case was

involved in those incidents.

One incident of misdirecting legal mail and two incidents of opening it are insufficient

to maintain a claim for relief. In this regard, the Fourth Circuit has held that a few isolated

incidents are not sufficient to state a claim for relief, particularly where they ate contrary to

policy and accidental or unauthorized. Buie v. Jones, 717 F.2d 925, 926 (4th Cir. 1983).

“Rather, an inmate must show that prison officials ‘regularly and unjustifiably interfered with’

his or her mail.” Adkins v. Chandler, No. 2:19-cvy-210, 2020 WL 885968, at *3 (S.D. W. Va.

Feb 24, 2020) (unpublished) (citing cases). Further, as to any delay in delivery caused by the

misdirection of Plaintiffs mail, “[t]o state a claim based on delay or nondelivery of legal mail,

a ptisoner must allege adverse consequences as a basis for the allegation that the delay or

nondelivety deprived him of meaningful access to the courts.” Lloyd v. Vincent, No. C.A.

4:03-1546-25BH, 2004 WL 3249250 (D.S.C. Sept. 10, 2004). Here, the evidence viewed in the

light most favorable to Plaintiff still establishes only “isolated incidents” over a period of

several months where Defendant Hinton acted contrary to the mail policy of the Detention

Center. She did not “regularly” interfere with Plaintiffs mail and he points to no deprivation

of access to the courts or any other harm due to the one incident where his mail was

temporarily diverted and delayed. Plaintiffs claim against Hinton fails as a matter of law and

Defendants’ Motion for Summary Judgment will be granted as to her with respect to the claim

under § 1983.

Plaintiff also seeks damages against Defendant Hinton based on negligent infliction of □

sevete emotional distress, a claim he would have to raise under state law. However, Plaintiff

fails to even plead the required elements of such a claim. To establish a claim of negligent

infliction of severe emotional distress in North Carolina, a plaintiff “must show that

defendant{[] (1) negligently engaged in conduct, (2) which would reasonably and foreseeably

cause plaintiff[] severe emotional distress, and (3) which did, in fact, cause severe emotional

sttess.” Jolly v. Academy Collection Service, Inc., 400 F. Supp 2d 851, 868 (M.D.N.C. 2005)

(citing Pardasani v. Rack Room Shoes, Inc., 912 F. Supp. 187, 192 (M.D.N.C. 1996)). Mere

upset ot disappointment is not sufficient. Instead, “[t]he term ‘severe emotional distress’

means ‘an emotional or mental disorder, such as, for example, neurosis, psychosis, chronic

depression, phobia, or any other type of severe and disabling emotional or mental condition

which may be generally recognized and diagnosed by professionals trained to do so.” Riddle

Buncombe County Board of Education, 805 S.E.2d 757, 760 (N.C. App. 2017) (quoting

Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 334 N.C. 669, 672, 435 S.E.2d 320, 322

(1993)). Plaintiff neither alleges such a level of emotional distress nor alleges actions by

Defendant Hinton that could reasonably and forseeably lead to such severe distress.

Therefore, Defendants’ Motion will be granted as to this claim against Defendant Hinton.

Plaintiff also claims that Defendant Fleming directly violated his rights by searching his

legal and medical papers without Plaintiff being present. Defendant Fleming moves for

summaty judgment on that claim based on the fact that he was not ptoperly served with the

Complaint in this case because the summons came to his place of employment while he was

temporarily away on military training. Defendant Fleming first raised this issue in the Second

Affirmative Defense in his Answer [Doc. #25] to the Complaint and Exhibit B attached

thereto. In the Answer, he stated that the Complaint should be dismissed for lack of service

pursuant to Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure. However,

Defendant Fleming did not, as required by Local Rule 7.3 of this Court, file a separate motion

and brief seeking dismissal. Therefore, the issue did not come before the Court at that time.

Had Defendant Fleming filed a proper motion at or before the filing of his answer, the

Court would likely have denied the motion to dismiss and allowed Plaintiff more time to

complete service. “Before a case [involving a plaintiff proceeding in forma pauperis| may be

dismissed based on failure to effectuate service, the Court must fitst ensure that the U.S.

Marshal has used reasonable efforts to locate and obtain service on the named defendants.”

Adkins v. Jackson, No. 5:15-cv-102-FDW, 2018 WL 1279338, at *3 (W.D.N.C. Mar. 12, 2018)

(unpublished) (citing Greene v. Holloway, 210 F.3d 361 (4th Cir. 2000)). This is particularly

true in the present case given the fact that Plaintiff is not only acting pro se, but also

- incarcerated. Indeed, dismissing the case without ensuring that such efforts are made would

be an abuse of discretion. See Greene, 210 F.3d 361. The Court also notes that most

10

individual defendants employed at prisons and detention facilities, including the other

Defendants in this case, do not object to the service of a complaint at their place of

employment, even if they ate not physically present at the time, because of a preference for

avoiding the disclosure and use of their home addresses during the litigation.

In any event, Defendant Fleming did not bring the issue before the Court for a decision

for mote than a year after the service or attempted service of the Complaint, and after the

close of discovety in the case. This presents the very real problem of potentially having to

remedy any setvice issue at this late stage by employing necessary means to obtain an address

where Defendant Fleming can be served and essentially restarting the case as to Defendant

Fleming, a course the Court would certainly be willing to take if required. However, the Court

need not address this argument further, since Defendants also addressed the merits of

Plaintiffs claim against Defendant Fleming, and the case can be resolved on that basis instead.

Plaintiff contends that Defendant Fleming violated Plaintiffs federal constitutional

tights by searching his cell and reading legal and medical papers outside of Plaintiff's presence.

As Defendant Fleming correctly points out, inmates, including pretrial detainees, generally

have no tight to privacy in their cells, and detention officers may search them for any reason

with ot without the inmates being present. Hudson v. Palmer, 468 U.S. 517, 529-30 (1984)

(no expectation of privacy in a prison cell); Block v. Rutherford, 468 U.S. 576, 590-92 (1984)

(pretrial detainees have no right to be present for cell searches); see also Guerrero v. Rivera,

No. EDCV 13-0092-JGB(JPR), 2013 WL 878285, at *4-5 (C.D. Ca. Mar. 8, 2013).

Issues may atise if such seatches were undertaken to retaliate against a prisoner for

exercising their constitutional rights. See Herman v. Grier, No. 1:18-cv-219, 2019 WL

11

4491521, at *5 (W.D.N.C. Sept. 18, 2019) (citing cases). Here, however, the Complaint

makes no clear allegation of such retaliation. To the extent that it could be tead as claiming

that Defendant Fleming intended to harass Plaintiff for previous court actions related to the

papets searched by Fleming, such a claim cannot survive summaty judgment. Not only does

Plaintiff provide no evidence of any retaliation, but “[a] plaintiff alleging that government

officials retaliated against [him] in violation of [his] constitutional rights must demonstrate,

inter alia, that [he] suffered some adversity in response to [his] exercise of protected rights.”

American Civil Liberties Union of Maryland, Inc. v. Wicomico County, Md., 999 F.2d 780,

785 (4th Cir. 1993) (citing Huang v. Board of Governors of University of North Carolina, 902

F.2d 1134, 1140 (4th Cir.1990)). “Where there is no impairment of the plaintiffs rights, there

is no need for the protection provided by a cause of action for retaliation. Thus, a showing of

adversity is essential to any retaliation claim.” Id. Plaintiff neither alleges nor provides any

evidence of any impairment of his rights or resulting adversity. Instead, he alleges only that

Defendant Fleming questioned him regarding his possession of a particular document and

that he informed Fleming how he obtained it. He alleges no further action by Defendant

Fleming following the explanation and no resulting injury. This is insufficient to survive

summaty judgment. Similarly, to the extent Plaintiff may be contending that the search

interfered with his right of access to the courts, he has failed to show any impact on his ability

to continue litigating his suits. See Lewis v. Casey, 518 U.S. 343, 349 (1996). Plaintiffs claims

against Defendant Fleming will also be denied.

Turning next to Defendants Schatzman and the Forsyth County Sheriff's Department,

Defendants note five that the Sheriffs Department is not a legal entity capable of being sued.

12

In response, Plaintiff notes that he has, in any event, asserted his claims against Sheriff

Schatzman in his official capacity. Plaintiff alleges in his Complaint that Defendant Schatzman

is liable for Defendants Hinton and Fleming’s violations of Plaintiffs rights because

Defendant Schatzman sets the unconstitutional polices or practices. However, Plaintiff has

identified no policy, practice, or custom followed by any Defendant that led to the alleged

violations of his constitutional rights. Indeed, the only policy in evidence as having been in

place at the time of Plaintiffs incarceration in the Forsyth County Detention Center clearly

ptohibits the opening of Plaintiffs legal mail outside his presence. In briefing the case,

Plaintiff attempts to alter or amend his claim to allege that Defendant Schatzman failed to

ptopetly train Defendants Hinton and Fleming to follow the applicable policy. (Plaintiffs

Response, [Doc. #53] at 16-17.) However, Plaintiff points to no actual evidence of any

training failure and makes only speculative and insufficient allegations in that regard. Further,

any training deficiency as to Defendants Hinton and Fleming could not have violated

Plaintiffs rights because, as just discussed, Plaintiff has produced no evidence that the

incidents at issue resulted in a violation of his constitutional rights. For these reasons,

Plaintiffs claims against Defendant Schatzman and the Forsyth County Sheriff's Office also

fail.

For all of these reasons, Defendants’ Motion for Summary Judgment will be granted

as to all of Plaintiffs claims.

13

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment

[Doc. #48] is granted, that Plaintiff's claims are denied, and that this action is dismissed.

This, the 31st day of Match of 2020.

s/ Joi Elizabeth Peak

United States Magistrate Judge

14