holding that “prisoners have no legitimate expectation of privacy and that the Fourth Amendment’s prohibition on unteasonable searches does not apply in prison cells”
How later courts described this case
- holding that “prisoners have no legitimate expectation of privacy and that the Fourth Amendment’s prohibition on unteasonable searches does not apply in prison cells”
- “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful disctimination.”
- setting forth due process tequitements for the withholding of a prisonet’s incoming mail which include “(1) appropriate notice; (2) a reasonable opportunity to challenge the initial determination; and (3
- On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to that is plausible on its face.’’
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DANNY LAMORE FORD, )
Plaintiff,
v. 1:21CV557
FORSYTH COUNTY SHERIFF
DEPARTMENT, et al., )
Defendants.
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants C. Whitt, Billy Warren, Robinson,
Bobby F. Kimbrough, and Rocky Joynet’s motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (Docket Entry 16.) Plaintiff has filed a response to the
motion to dismiss. (See Docket Entry 19.) For the reasons stated below, the Court will
recommend that Defendants’ motion be granted.
I. BACKGROUND
Plaintiff proceeding pro se, initiated this action pursuant to 42 U.S.C. § 1983 in July 2021
alleging constitutional violations against several named Defendants based on events occurting
at the Forsyth County Law Enforcement Detention Center in Winston Salem, North Carolina,
where he was held as a pretrial detainee. (See generally Complaint, Docket Entry 2.) Defendants
named in Plaintiffs Complaint are the Forsyth County Sheriffs Department in its official
capacity, and Sheriff Bobby F. Kimbrough, Chief Deputy Rocky Joyner, Director Robert E.
Slater, Director Richard Carleton, Captain C. Whitt, Captain Billy Warren, and Sergeant
Robinson, each sued in both their individual and official capacities. (Id. at 3-5.)!
Specifically, Plaintiff alleges that Defendants created and enforced policies that allowed
his incoming and outgoing mail to be searched, read, photocopied, and transmitted to third
patties. (See generally id. at 17-25.) Photographs of Plaintiff's wife in her undergarments and
intimate letters that contained legal information wete included in the mail searched, read,
photocopied and transmitted to third parties. (Id. at 24, 26.) According to Plaintiff, these
third parties include investigating police officers and district attorneys, some of which are
involved in his underlying criminal matter. (Id. at 9,17, 19, 23.) Plaintiff alleges these events
began in mid-February 2019 and have continued for over two yeats up to the filing of the
Complaint. (Id. at 6,17.) Asa result of Defendants’ actions of unlawful searches and seizutes,
Plaintiff claims that his relationship with his wife has suffered tremendously and his legal
strategy has been thteatened by the transmission of his mail to third parties. (/d. at 26.)
Further, due to these events, Plaintiff claims that he experiences increased stress and anxiety
which has taken a toll on his physical and mental capacities. (/d.) Plaintiff alleges that
Defendants have violated the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth
Amendments, and seeks monetaty damages from each Defendant. (Id. at 4, 27.)
On March 15, 2022, Defendants C. Whitt, Billy Warren, Robinson, Bobby F.
Kimbrough, and Rocky Joyner moved to dismiss PlaintifPs Complaint pursuant to Rule
12(b)(6) contending that Plaintiff has failed to state a claim upon which relief can be granted.
‘Unless otherwise noted, all citations herein refer to the page numbers at the bottom
right-hand corner of the documents as they appear in the Coutt’s CM/ECF system.
(Docket Entry 16.) Plaintiff filed his response to Defendants’ motion. (Docket Entry 19.) In
his response, Plaintiff concedes to dismissal of all claims except those in violation of the
Fourth and Fourteenth Amendments. (Id. at 1-2.) In light of such, the undersigned will turn
to the claims which Plaintiff contests.
II. DISCUSSION
A. Defendants C. Whitt, Billy Warren, Robinson, Bobby F. Kimbrough, and
Rocky Joyner’s Motion to Dismiss
Defendants C. Whitt, Billy Warren, Robinson, Bobby F. Kimbrough, and Rocky Joyner
move to dismiss pursuant to Rule 12(b)(6). (Docket Entry 16.) In considering a motion to
dismiss for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a court must determine whether the complaint is legally
and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Aid. Corp. v. Twombly, 550
US. 544, 570 (2007). To sutvive a motion to dismiss under Rule 12(b)(6), a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.” Igbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct.” Id. see also Simmons v.
United Mortg. and Loan Inv. LLC, 634 F.3d 754, 768 (4th Cir. 2011) (On a Rule 12(b)(6)
motion, a complaint must be dismissed if it does not allege enough facts to state a claim to
that is plausible on its face.’’) (citations and quotations omitted). The “court accepts all
well-pled facts as true and construes these facts in the light most favorable to the plaintiff,”
but does not consider “legal conclusions, elements of a cause of action, and bare assertions
devoid of factual enhancement[,] . . . unwattanted inferences, unreasonable conclusions, ot
arguments.” Nemet Chevrolet, Ltd. »v. Consumeraffairs.com, Ine, 591 F.3d 250, 255 (4th Cir. 2009)
(citations omitted). In other words, the standatd requires a plaintiff to articulate facts that,
when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he
is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Igbal, 556
US. at 678, and Twombly, 550 U.S. at 557).
Pro se complaints are to be liberally construed in assessing sufficiency under the Federal
Rules of Civil Procedure. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this
liberal construction, “generosity is not fantasy,” and the court is not expected to plead a
plaintiffs claim for him. Pender v. Suburban Hosp., Inc, 159 F.3d 186, 192 (4th Cir. 1998).
“Liberal construction is patticularly appropriate when a pro se complaint raises civil rights
issues.” Moody-Williams v. LapoScience, 953 F. Supp. 2d 677, 680 (E.D.N.C. 2013) (emphasis in
otiginal); see also Brown v. N.C. Dept. of Corr, 612 F. 3d 720, 722 (4th Cir. 2010).
Defendants first contend that Plaintiff has failed to state a claim against them under
the Fourth Amendment for unreasonable seatch and seizure. (Docket Entry 17 at 9-11.) The
Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses,
papets, and effects, against unteasonable searches and seizures.” U.S. Const. amend. IV.
“Given the realities of institutional confinement,” a detainee’s reasonable expectation of
ptivacy would necessarily be “of a diminished scope.” Bed», Woffish, 441 U.S. 520, 557 (1979).
In the context here, Plaintiff has “no reasonable expectation of privacy to non-privileged
mail.” Lotseau v. Norris, No. 3:10CV870, 2011 WL 4102226, at *3 (E.D. Va. Sept. 14, 2011)
(citation omitted), afd, 465 F. App’x 273 (4th Cir. 2012); Hudson v. Palmer, 468 U.S. 517, 530
(1984) (holding that “prisoners have no legitimate expectation of privacy and that
the Fourth Amendment’s prohibition on unteasonable searches does not apply in prison
cells”). Thus, there is no Fourth Amendment violation in the opening and. inspecting of
Plaintiffs non-privileged mail? See Lozseau, 2011 WL 4102226, at *2-3; V/illafana v. Clarke, No.
3:17CV512, 2018 WL 1569489, at *4 (E.D. Va. Mar. 30, 2018) (“[A]n inmate’s Fourth
Amendment tights are not violated when mail is inspected and opened by jail
officials.”’), aff'd, 738 F. App’x 252 (4th Cir. 2018); Blaisdell v. Dep’t of Pub. Safety, No. CIV. 14-
00433 JMS, 2014 WL 5581032, at *6 (D. Haw. Oct. 31, 2014) (unpublished) (citations omitted)
(“An inmate has no reasonable expectation of privacy in his cell and is not entitled to Fourth
Amendment protection against unreasonable searches and seizures. This applies equally to an
inmate’s incoming mail.”); Hall v. Chester, No. 08-3235-SAC, 2008 WL 4657279, at *6 (D. Kan.
Oct. 20, 2008) (citation omitted) (“Prison officials do not violate an inmate’s Fourth
Amendment tights by inspecting the inmate’s legal mail, and are not required to have probable
cause to search incoming mail.”). Nor is thete a constitutional violation in the copying and
the dissemination of non-privileged mail to prosecutors. See Lotseau, 2011 WL 4102226, at *2-
3 (no Fourth Amendment violation for incoming mail that was opened by prison officials,
copied, and sent to prosecutos); Jeffries v. Williamson Cnty. Jail, No. 3:18-CV-00228, 2018 WL
4778197, at *4 (M.D. Tenn. Oct. 2, 2018) (dismissing claims of the plaintiffs “outgoing
[sealed] mail being opened, read, copied, and forwarded to the district attorney”); Zink ».
Cummings, No. 2:17-CV-32, 2017 WL 2374508, at *3 (W.D. Mich. June 1, 2017) (“[P]rison
Plaintiff does not allege the inspection, copying and dissemination of “legal” mail. (See generally
Compl.) To be deemed legal mail, “the legal sender must be specifically identified[,] and the mail must
be marked as confidential.” Tuck ». Stanbeck, No. 3:14CV830-HEH, 2015 WL 5916182, at *3 (E.D.
Va. Oct. 8, 2015) (unpublished) (internal quotations and citation omitted).
officials [do. not] commit a constitutional violation by reading prisoners’ outgoing nonlegal
mail and forwarding matters of concern to police or prosecutors.”); Frey v. Rassanen, No. 2:14-
CV-10192, 2014 WL 545794, at *3 (E.D. Mich. Feb. 11, 2014) (unpublished) (“[C]ourts have
routinely held that prison officials do not commit a constitutional violation by reading
ptisonets’ outgoing nonlegal mail and forwarding matters of concern to police or
ptosecutors.”); see also Davenport v. Rodgers, 626 F. App’x 636, 637 (7th Cir. 2015) (citation
omitted) (“The Supreme Coutt long ago held that the Fourth Amendment does not prohibit
the government, in implementing reasonable security measures in prisons, from seizing and
using as evidence letters written voluntarily by a prisoner|,]|” a “principle [that] applies to
pretrial detainees as well.”). Therefore, Plaintiff fails to allege a Fourth Amendment violation.
Plaintiffs claim under the Fourteenth Amendment also fails. The Equal Protection
Clause of the Fourteenth Amendment provides that “[n]o State shall... deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The
Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any
*Plaintiff's civil action is also improper to the extent it challenges the validity of a possible
conviction. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (“[W]hen a state prisoner seeks damages
in.a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.”); Snodderly ». RUPP. Drag Enft Task Force, 239 F.3d 892, 898 n.8 (7th Cir. 2001)
(interpreting “Heck as barring damage claims which, if successful, would necessarily imply the
invalidity of a pofential conviction on a pending criminal charge”) (emphasis added); von Fox v. Charleston
City Police Dep’t, No. 2:16-CV-98-RMG-MGB, 2016 WL 8677189, at *4 (D.S.C. Feb. 12, 2016)
(‘PlaintifPs present federal lawsuit appeats to concern pending state criminal charges against
him. Plaintiff's suit would appear to imply the invalidity of those pending state criminal charges, and
thus, is not cognizable here. His lawsuit would also interfere with pending state criminal
proceedings.”), report and recommendation adopted sub nom. Fox v, Charleston City Police Dep't, No. CV 2:16-
98-RMG, 2016 WL 927154 (D.S.C. Mar. 7, 2016), dismissed sub nom. Fox v. South Carolina, 668 F. App’x
442 (4th Cir, 2016).
petson of life, liberty, or property, without due process of law.” Id. Here, Plaintiff has not
alleged that he was treated different than others similarly situated with discriminatory intent.
See Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001) (“To succeed on an equal protection
claim, a plaintiff must first demonstrate that he has been treated differently from others with
whom he is similarly situated and that the unequal treatment was the result of intentional or
purposeful disctimination.”); Pronin v. Johnson, 628 F. App’x 160, 164 (4th Cir. 2015) (“[A] valid
claim for a violation of equal protection ... must allege the requisite discriminatory intent with
more than mere conclusoty assettions.”). Nor has he alleged that he was deprived of, or that
he was actually prohibited from sending or receiving mail without having an opportunity to
be heard. See Hopkins v. Collins, 548 F.2d 503, 504 (4th Cir. 1977) (setting forth due process
tequitements for the withholding of a prisonet’s incoming mail which include “(1) appropriate
notice; (2) a reasonable opportunity to challenge the initial determination; and (3) an ultimate
decision by a disinterested party not privy to the initial censorship determination.”).
Therefore, Plaintiff's Complaint also fails to state a Fourteenth Amendment violation.
B. Unserved Defendants
The record reflects that Defendants Forsyth County Sheriff's Department, Director
Richard Carleton, and Director Robert E. Slater have not been served in this matter. (See
Docket Entries 12, 13.)4 Because Plaintiff is a detainee who is proceeding forma pauperis, the
Court has nevertheless reviewed the allegations against said unserved defendants, and finds
dismissal is wattanted for the reasons stated above related to Defendants C. Whitt, Billy
*A summons was issued for Director Richard Carleton (see Docket Entry 5 at 5), however the
United States Marshal’s attempt to serve said summons is uncleat.
Warren, Robinson, Bobby F. Kimbrough, and Rocky Joyner. See 28 U.S.C. 1915(e)(2); Baber
v. McNorton, No. 7:20-CV-00700, 2022 WL 188187, at *4 (W.D. Va. Jan. 20, 2022)
(unpublished) (“[D]ismissal applies to claims against the unsetved . . . defendants, as well,
because such claims suffer from the same defects.’’).°
Ill. CONCLUSION
For the reasons stated herein, IT IS HEREBY RECOMMENDED that
Defendants’ motion to dismiss (Docket Entry 16) be GRANTED and that Plaintiffs
Complaint be dismissed for failure to state a claim upon which telief may be granted.
De |
Joe L. Webster
United States Magistrate Judge
Februaty 16, 2023
Durham, North Carolina
undersigned also notes that the Forsyth County Sheriffs Department is not a person
subject to suit under § 1983. See Parker v. Bladen Cnty. 583 F. Supp. 2d 736, 740 (E.D.N.C. 2008)
(unpublished) (county sheriff's department “lacks legal capacity to be sued”); Nasiri ». Orange Cnty.
Sheriff's Off, No. 1:21CV541, 2021 WL 4690574, at *3 (M.D.N.C. Oct. 7, 2021) (anpublished) (same)
(collecting cases).