# RICHARDSON-BEY v. SHELTON

> District Court, M.D. North Carolina · July 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10254357

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254357

## How later opinions describe it (automated extraction)

- discussing sovereign immunity of states and state officials under Eleventh Amendment
- noting that, even where “damages are theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEROY RICHARDSON-BEY, )
Plaintiff,
V. 1:23CV138
WARDEN M. SHELTON, et al.,
Defendant(s).

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action
pursuant to 42 U.S.C. § 1983. The undersigned entered an Order and Recommendation
(Docket Entry 2) recommending that the case be dismissed without prejudice based on
Plaintiffs failure to submit the filing fee or an application to proceed in forma pauperis and
also noting potential issues with the claims raised in the Complaint (Docket Entry 1).
Plaintiff filed no objections, leading the District Judge assigned to the case to enter an Order
(Docket Entry 4) and Judgment (Docket Entry 5) adopting the Recommendation and
dismissing the case. Three days later, the Court received a payment of $400.00 of the
$402.00 filing fee, prompting the District Judge to enter a Memorandum Opinion and Order
(Docket Entry 7) vacating and withdrawing the Order and Judgment and allowing Plaintiff
20 days to either submit the remaining $2.00 of the filing fee along with an Amended
Complaint attempting to address the defects noted in the Order and Recommendation or
accept dismissal of the matter without prejudice and have the $400.00 payment returned to

him. Plaintiff chose to submit the remaining $2.00 and an Amended Complaint (Docket
Entry 8) in which he alleges discrimination and retaliation by prison officials and seeks
injunctive relief and damages. That Amended Complaint is now before the Court for
review. !
Because Plaintiffs “a prisoner seek[ing] redress from a governmental entity or officer
or employee of a governmental entity,” this Court has an obligation to “review” this
Complaint. 28 U.S.C. § 1915A(a). “On review, the court shall .. . dismiss the complaint,
or any portion of the complaint, if [it] — (1) 1s frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” 28 U.S.C. § 1915A(b).
As to the first basis for dismissal, the United States Supreme Court has explained that
“a complaint, containing as it does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989). “The word ‘frivolous’ is inherently elastic and not susceptible to categorical
definition. ... The term’s capaciousness directs lower courts to conduct a flexible analysis,
in light of the totality of the circumstances, of all factors bearing upon the frivolity of a
claim.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some
internal quotation marks omitted). As part of this review, the Court may anticipate

' The Court will treat the Amended Complaint as the operative pleading in the case.
However, in certain instances, the Court will give Plaintiff the benefit of the doubt and refer
to allegations or exhibits contained in the original Complaint.
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affirmative defenses that clearly appear on the face of the complaint. Nasim v. Warden, Md.
House of Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d
70, 74 (4th Cir. 1983).
The Supreme Court further has identified factually frivolous complaints as ones
involving “allegations that are fanciful, fantastic, and delusional. As those words suggest,
a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are judicially noticeable facts
available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal
citations and quotation marks omitted). In making such findings, this Court may “apply
common sense.” Nasim, 64 F.3d at 954.
Alternatively, a plaintiff “fails to state a claim upon which relief may be granted,” 28
U.S.C. § 1915A(b)(1), when the complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it “stops short of the line between possibility
and plausibility of “entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). This
standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. In other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id.’
The final ground for dismissal under 28 U.S.C. § 1915A(b)(2) generally applies to
situations in which doctrines established by the United States Constitution or at common law
immunize governments and/or government personnel from liability for monetary damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing
sovereign immunity of states and state officials under Eleventh Amendment); Pierson v. Ray,
386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and
common-law immunity doctrines, such as judicial, legislative, and prosecutorial immunity);
cf. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are
theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and
special defenses, available only to public officials, preclude or severely limit the damage
remedy”).

Although the Supreme Court has reiterated that “[a] document filed pro se is to be
liberally construed 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) (internal citations and quotation marks omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d
298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly standard
in dismissing pro se complaint); accord Atherton v. District of Columbia Off. of Mayor, 567
F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent
standards than formal pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of
misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 697, respectively)).
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Alleged Facts
According to the Amended Complaint, at 11:00 a.m. on October 20, 2021, Plaintiff
was “practicing [his] Muslim faith” in the I-Dorm dayroom at Sanford Correctional Center,
where he was then housed. (Docket Entry 8 at 10.) It states without elaboration or examples
that such “practice is common in the I-Dorm day room, and [Plaintiff] had previously
practiced [his] faith there without comment, as had other inmates.” (Id.) However, on this
date, Defendant Sgt. Watson ordered Plaintiff to remove all of his religious materials from
the table where he was praying and studying and stated that if he did not, Defendant Watson
would put them in a garbage bag. (Id.) Plaintiff complied. (Id.) However, the Amended
Complaint states that Caucasian inmates practicing Christianity are allowed to come to the
I-Dorm dayroom on Sundays to conduct Sunday school classes even though they are not
assigned to that dormitory. (Id.) Based on that, Plaintiff believed that Defendant Watson
stopped his religious practice based on his Muslim faith and African-American race in
violation of his right to equal protection under the Fifth and Fourteenth Amendments of the
United States Constitution. (Id.)
Plaintiff allegedly responded to Defendant Watson’s actions by writing to Defendant
Warden M. Shelton on November 7 and 14, 2021, stating that Defendant Watson had
violated his constitutional rights. (Id.) Three days after the second letter, on November 17,
2021, Defendant Shelton allegedly directed an officer to drive to Plaintiffs work release site,
remove him, return him to Sanford Correctional, and have him pack his belongings for a

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transfer to Richmond Correctional Institution’ in Hoffman, North Carolina, which did not
have a work release program. (Id.) Plaintiff believes that transfer was coordinated between
Defendant Shelton and Defendant Warden Brayboy, the warden at Richmond Correctional,
to punish him and prevent him from participating in work release in retaliation for
complaining about Defendant Watson’s alleged violation of his rights. (Id. at 11.)
This led Plaintiff to file an administrative prison grievance alleging a “violation of
[his] First Amendment religious right.” (Id. at 15.) Defendant Nakisha N. Parrish allegedly
denied the grievance, stating that Defendant Shelton did not allow any faith to use the day
room to display their religious faith and that Plaintiff was transferred “‘in order to not
undermine the facility authority.’” (Id. atl1.) The Amended Complaint states that this was
not correct, that Defendant Parrish was not impartial in deciding the grievance, and that she
denied it in an attempt to shield Defendants Watson, Shelton, and Brayboy from liability for
violating Plaintiff's rights and to prevent redress for those violations. (Id.) Plaintiffappealed
the denial, which led to a further denial by Defendant Ramon R. Gutierrez that stated that
Plaintiff's transfer was part of a transfer request from another facility and that Plaintiff met
all criteria for a transfer. (Id.) Plaintiff disagreed with this conclusion and the Amended
Complaint accuses Defendant Gutierrez ofa lack of impartiality and also attempting to shield
other Defendants from liability for their violations of Plaintiff's rights. (Id. at 12.) Plaintiff

> The Amended Complaint refers to this facility at separate times as both Morrison
Correction and Richmond Correctional. The Court will refer to the prison as Richmond
Correctional Institution which, according to the website of the North Carolina Department
of Adult Corrections, is the current name of the facility.
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subsequently filed a final appeal which resulted in a denial by Defendant Kimberly D.
Grande stating that the record did not reveal any violation of prison policies or misconduct
by staff. (Iid.) Plaintiff again views this as an attempt to somehow shield the other
Defendants and prevent him from receiving a remedy for the prior violations and a return to
work release. (Id.)
Thereafter, in March of 2022, Plaintiff transferred to Wilkes Correctional Center,
which did have a work release program, but Defendant Warden Prince denied Plaintiffs
entry into that program due to the fact that he was not enrolled in a Mutual Agreement Parole
Program (MAPP). (Id. at 13.) The Amended Complaint alleges that this had not been an
issue at Sanford Correctional even though the two prisons operate under the same rules and
concludes that this was a further act of retaliation against Plaintiff. (Id.) On November 4,
2022, Plaintiff again transferred prisons, this time to Roanoke River Correctional. (Id.)
There, Defendant Warden Hardy allegedly denied his participation in a work release program
based on a claimed need for a psychological evaluation. (Id.) The Amended Complaint
alleges that Plaintiff did have an evaluation as part of his admission process for entry into the
MAPP, which had begun prior to his transfer from Sanford Correctional. (Id.) The
Amended Complaint does not indicate that Plaintiff ever completed this process. The
Amended Complaint claims that the denial of work release by Defendant Hardy is another
instance of retaliation. (Id.)

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Analysis
Before addressing the Amended Complaint, the Court first notes that the Complaint
names several Defendants, J Silver-Jones, Matthew Cole Wood, Ms. White, C. Gast, Officer
Johnson, and Case Manager Lee, not named or mentioned in the Amended Complaint. The
Complaint itself contained no meaningful allegations against these Defendants. In fact, it
does not appear to mention them in the sections setting out factual allegations other than to
state that Defendant Lee can confirm certain facts related to Plaintiff's transfer from Sanford
Correctional. (Docket Entry | at 9.) Being a possible witness does not somehow violate
Plaintiff's rights. Therefore, neither the Complaint nor Amended Complaint states any claim
for relief against this set of Defendants and they should be dismissed from the case.
Turning now to issues with the Amended Complaint, exhaustion is required before
Plaintiff may bring this action. See 42 U.S.C. § 1997e; Porter v. Nussle, 534 U.S. 516
(2002); Booth v. Churner, 532 U.S. 731 (2001). Although Plaintiff can bring both exhausted
and unexhausted claims, “no unexhausted claim may be considered.” Jones v. Bock, 549
U.S. 199, 220 (2007). Here, the failure to exhaust most of Plaintiff’s claims is clear from the
face of the Complaint, which would allow for dismissal of those claims even though
exhaustion is an affirmative defense rather than a pleading requirement. See Custis v. Davis,
851 F.3d 358, 361-62 (4th Cir. 2017); Anderson v. XYZ Correctional Health Servs., 407
F.3d 674, 681-82 (4th Cir. 2005).
Plaintiff's original Complaint alleged that Plaintiff filed a grievance at Richmond
Correctional alleging “a violation of Plaintiff] ]s First Amendment Right” and that Defendant
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Shelton transferred him as punishment and/or because of his religion. (Docket Entry | at 19.)
As noted above, the Amended Complaint reports the same grievance but only lists the alleged
First Amendment violation, not a retaliatory transfer, as the subject matter of the grievance.
However, the response to the grievance by Defendant Parrish that Plaintiff's transfer was to
keep him from undermining facility authority indicates that the question of the transfer was
likely part of the grievance. Therefore, reading the pleadings in the light most favorable to
Plaintiff, they allege that he filed a single grievance claiming religious discrimination and a
retaliatory transfer to Richmond Correctional. However, given the timing and nature of that
grievance, it necessarily could not have covered any of the claims Plaintiff raises concerning
the handling of his grievance, the subsequent transfers to Wilkes Correctional and Roanoke
River Correctional, or denials of work release at those facilities. The Amended Complaint
mentions a response by Defendant Hardy to a “grievance of her denial” of his request for
work release. (Docket Entry 2 at 13.) However, it is clear that this refers only to a challenge
to the work release denial. It does not refer to an administrative grievance exhausted through
the three-step process such as was detailed in relation to Plaintiff's Richmond Correctional
grievance which alleged that she violated Plaintiffs rights by joining in an alleged
conspiracy with the other wardens to retaliate against Plaintiff. For this reason, only
Plaintiffs claims that Defendants Watson and Shelton discriminated against him based on
his religion and that Defendants Shelton and Brayboy arranged his transfer in retaliation for
his complaints about the discrimination are arguably exhausted and may be considered.
Plaintiff's other claims should be dismissed.
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Before moving on to address Plaintiff's exhausted claims, the Court also notes that
even if the unexhausted claims were exhausted, those claims are not viable. The claims
against Defendants Parrish, Gutierrez, and Grande are based on their denials of Plaintiff's
grievance. As the Court informed Plaintiff previously, there is no substantive due process
right to a prison grievance procedure. Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th
Cir. 2008) (no substantive right to a grievance procedure); Adams v. Rice, 40 F.3d 72, 75
(4th Cir. 1994) (no right to any grievance procedure or to access any procedure voluntarily
created by the State). Plaintiff is also not entitled to a grievance procedure or to any
particular outcome when using that procedure. Plaintiff attempts to state claims against these
Defendants by alleging that they were part of some larger conspiracy to retaliate against him
for the events at Sanford Correctional, cover up the actions of Defendants Watson, Shelton,
and Brayboy, or prevent him from seeking redress for the violations of his rights. The claims
of retaliation are entirely conclusory as Plaintiff bases them on nothing more than these
Defendants’ denials of his grievance and the fact that Plaintiff disagrees with their reasoning.
This is the essence of “an unadorned, the-defendant-unlawfully-harmed-me accusation”
which is not sufficient to state any claim for relief. Plaintiff's contentions that their denials
were intended to cover up the actions of other Defendants or prevent him from seeking relief
are nonsensical as the alleged actions could accomplish neither of those goals. Plaintiff was
able to exhaust his grievance addressing the original incident at Sanford Correctional and
bring the current suit. Denying his grievance did not and could not prevent this. Similarly,
Plaintiff makes conclusory claims that Defendants Prince and Hardy denied him work release
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as part of the same far reaching conspiracy against him. He again supports this with no facts
indicating retaliation, only that they reached decisions with which he disagrees or that other
persons might have made different decisions at other prisons in the past. This is not sufficient
to state claims upon which relief may be granted against these Defendants. Similarly, the
denial of work release alone does not state a claim under § 1983 because there is generally
no federal constitutional right to work release or any prison job. O’Bar v. Pinion, 953 F.2d
74, 85 (4th Cir. 1991) (no constitutional right to work release in North Carolina and removal
from it, placement in administrative housing, and reclassification did not violate a prisoner’s
rights). Plaintiffs claims against Defendants Parrish, Gutierrez, Grande, Prince, and Hardy
should also be dismissed for this failing to state any claim upon which relief may be granted.
The remaining claims in the case are that Defendants Watson and Shelton
discriminated against Plaintiff in the basis of his religion and race by not allowing him to
practice his religion in the dormitory day room on October 20, 2021, and that Defendants
Shelton and Brayboy arranged to transfer him to Richmond Correctional and away from his
work release assignment in retaliation after he complained about the alleged discrimination.
The gravamen of Plaintiff's religious discrimination claim is that Watson and Shelton treated
him, as a African-American inmate practicing the Muslim faith, differently from Caucasian
prisoners who practice Christianity. Such a allegation, if supported, would state a claim
under the Equal Protection Clause of the Fifth and Fourteenth Amendments of the United
States Constitution. ‘To succeed on [such a] claim, a plaintiff must first demonstrate that
he has been treated differently from others with whom he is similarly situated and that the
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unequal treatment was the result of intentional or purposeful discrimination.’” Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Plaintiff's filings do not sufficiently allege
that he was treated differently from any similarly situated person. Defendant Watson, while
allegedly enforcing Defendant Shelton’s policy, ordered Plaintiff to remove his religious
items from a table in the day room on a single occasion on an apparently random day. The
Amended Complaint alleges generally that “Caucasian inmates practicing Christianity in the
I-Dorm day room had never been ordered to stop their worship, much less threatened with
disposal of their articles of worship.” (Docket Entry 2 at 10.) The original Complaint makes
similar allegations. However, the Amended Complaint goes on to explain that the Caucasian
Christian inmates are allowed to use the day room to hold Sunday school classes at three or
four tables every week. (Id.) The Original Complaint adds an allegation that they are
allowed to store materials on a shelf in the day room, apparently while they were not holding
class. (Docket Entry 1 at 22.) Plaintiff was not similarly situated to the inmates described.
He sought to engage in an unplanned, unorganized, self-observance in the day room. The
Caucasian Christian inmates he points to as being similarly situated were instead conducting
organized weekly group meetings onasetday. Plaintiffs pleadings make no allegation that
he was conducting such meetings or that he sought permission to do so and was denied.
Therefore, he is not similarly situated to the Christian inmates described and his filings do
not state a claim for a violation of his equal protection rights.
Plaintiff's final surviving claim is that Defendants Shelton and Brayboy transferred
him away from Sanford Correctional as retaliation after he complained about Defendant
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Watson’s actions. Sufficiently “detailed factual allegations” of retaliation can constitute a
claim under § 1983, see Booker v. South Carolina Dept. of Corr., 855 F.3d 533, 545 (4th Cir.
2017), although a “bare and conclusory assertion of retaliation” does not, see Mills v.
Maryland, Civil Action No. DKC-17-2305, 2018 WL 4538584, at *10 (D. Md. Sept. 21,
2018). As to Defendant Shelton, the Amended Complaint does state a viable claim for relief.
Plaintiff allegedly complained to Defendant Shelton about Defendant Watson’s actions on
November 7 and 14, 2021 and was transferred only three days later. More importantly, one
response to Plaintiff's grievance reflects that Plaintiff had no issues for two years at Sanford
Correctional, while another then states that he was transferred in order to “not undermine the
facility authority.” (Docket Entry 1 at 26.) This is sufficient to support a possible retaliation
claim at this time and that claim should proceed. However, the Court also notes that the
grievance response discussing undermining institutional authority further states that Plaintiff
was attempting to “erect a ‘shrine’ in the dayroom” even though religious faiths are not
allowed to use the day room “as a means to display their religious faith.” (Id.) This is a fact
not alleged in Plaintiff's pleadings. However, Plaintiff should be aware that if it proves to
be true that he was attempting to erect an unauthorized shrine in a day room in violation of
institutional policy and that this was the reason for his transfer, this will likely prove fatal to
his claim of retaliation. The Court also notes that the Amended Complaint names Plaintiff
Shelton in both her individual and official capacities. The individual capacity claim may
proceed. However, Defendant Shelton is a state official which means that the official
capacity claim against her is also a suit against the State. Kentucky v. Graham, 473 U.S.
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159, 166 (1985) (holding that official capacity claims against state officials are suits against
the State). Neither the State nor its agencies are “persons” subject to suit for damages under
§ 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). The Amended
Complaint does seek injunctive relief in the form of Plaintiff's reinstatement to work release,
but Plaintiff is no longer housed in Defendant Shelton’s prison or within her control.
Therefore, the request for injunctive relief cannot apply to her and the official capacity claim
as to Defendant Shelton should be dismissed with only the individual capacity retaliation
claim proceeding.
The Amended Complaint also alleges that Defendant Brayboy participated in
Defendant Shelton’s alleged retaliation by agreeing to his transfer to Richmond Correctional.
Although it may be true that Defendant Brayboy agreed to accept Plaintiff as part of the
transfer, the Amended Complaint does not allege facts demonstrating that Defendant
Brayboy knew of any retaliatory reasons for the transfer and agreed to help with the
retaliation. Prisoner transfers occur constantly for many reasons and the pleadings contain
no allegations that Defendant Brayboy accepted Plaintiff while knowing of any potentially
improper reason for the transfer. The Amended Complaint is too conclusory to state any
claim for relief and Defendant Brayboy should be dismissed from this action.
IT IS THEREFORE ORDERED that the Clerk shall prepare and file a request for a
waiver of service for Defendant Shelton and proceed under the process for service set out in
Standing Order 19 of this Court.

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IT IS RECOMMENDED that Plaintiff's individual capacity retaliation against
Defendant Shelton be allowed to proceed but that all other claims be dismissed sua sponte
pursuant to 28 U.S.C. § 1915A for being frivolous or malicious or for failing to state a claim
upon which relief may be granted or seeking monetary relief against a defendant who is
immune from such relief.
This, the 3rd day of July, 2023.

__/s/L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254357. Public record. Not legal advice.