Carter v. Lassiter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:18-cv-275-FDW

GIVONNO CARTER, )

)

Plaintiff, )

)

vs. ) ORDER

)

KENNITH LASSITER, et al., )

)

Defendants. )

__________________________________________)

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

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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

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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) Evidence1

(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.

1 This section is not exhaustive.

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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

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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 reset back to the initial phase,

but simply pulled out of the programming until they are eligible and willing to return.

Of the approximately 1,287 offenders who have been selected as members in the program

since it began in February 2016, 610 have completed, 172 were released prior to completion and

28 were removed for being inappropriate placements for the program after arriving at the facility,

and 456 were currently active as of October 14, 2019.

Plaintiff is currently serving a sentence for second-degree murder and is scheduled for

release on July 27, 2030. See (Doc. No. 33-2 at 2). Since being placed in NCDPS custody on

November 19, 2013, he has committed 47 infractions in approximately six years. (Doc. No. 33-3

at 2). Plaintiff has been enrolled in the RDU program since May 4, 2017. (Doc. No. 33-1 at 2).

Since that date, he was found guilty of 16 infractions, seven of which were assaults on staff with

a weapon. (Doc. No. 33-1 at 7). Plaintiff was previously assigned to “long-term restrictive housing

for control purposes based on his assaultive behavior.” (Doc. No. 33-1 at 8). Since becoming a

member of the RDU program, Plaintiff has committed an additional 31 infractions, including

“multiple assaults on staff and threats to harm or injure staff.” (Doc. No. 33-1 at 8). Throughout

his time in the RDU program, Plaintiff has “repeatedly incurred infractions that removed him from

the programming and/or chosen not to participate.” (Doc. No. 33-1 at 8). Overall, he has spent

approximately 13 months housed in the E-unit as a non-participating member. While he refused to

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participate in the program, he was housed in E-unit under conditions that are “virtually

indistinguishable from long-term restrictive housing for control purposes.” (Doc. No. 33-1 at 8).

As of early October, Plaintiff had chosen to voluntarily re-engage and participate in the program.

However, as of Friday October 11, 2019, he was again classified as a non-participating member.

When he chooses again to participate and meet the requirements of the programming, he can expect

to complete the program in 12 weeks or less. (Doc. No. 33-1 at 8).

While Plaintiff is participating and moving through the phases of the program, Plaintiff’s

conditions of confinement have and will continue to progress toward less restrictive conditions

with increased privileges, including permission to possess additional personal property. The final

phase of the program closely resembles a general-population status with the purpose of returning

the successful member to that housing status upon completion of the program. If Plaintiff had not

been selected to become a member of the program, “he would have remained housed under

conditions that are virtually identical to the conditions under which non-participating members are

currently housed in the E-unit.” (Doc. No. 33-1 at 9).

The relevant NCDPS Policy & Procedure governing conditions of confinement for

restrictive hosing states that offenders assigned to restrictive housing for control purposes are only

permitted to have property that does not exceed two cubic feet. See (Doc. Nos. 33-4, 33-5, 33-6).

Legal papers may be possessed by inmates necessary for their pending matters. Legal papers not

related to pending matters may be limited and, if there is any doubt about such materials, the

Director of Prisons should be contacted. Where legal materials cannot be permitted but remain

necessary to an inmate, the documents are to be kept at the facility and the inmate will be given

access to them as necessary. The amount of legal materials that may be possessed by an inmate is

consistent with the amount of personal storage space provided to the inmate based on his custody

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classification, the amount of space at the facility, and other safety and security concerns. Items of

personal property including legal materials that exceed the amount permitted or can be

accommodated will be disposed of, but not before providing the inmate the opportunity to mail the

items to an addressee of their choice at the inmate’s expense. If the inmate cannot afford the

expense, the items will be mailed through the Offender Welfare Fund.

Marion C.I.’s Standard Operating Procedures (“SOPs”) state that, in accordance with

NCDPS Policy, offenders assigned to restrictive housing for control purposes or the RDU program

are only permitted to have property that does not exceed two cubic feet. See (Doc. No. 33-7). Legal

papers relevant to pending cases may be possessed, but other legal materials may be limited when

necessary. Any material not meeting the criteria or exceeding the permitted amount must be mailed

to an addressee of the inmate’s choice. The SOPs define procedures for how to mail an inmate’s

personal property, including that the property will be inventoried and documented on a DC-160

form which must include the inmate’s name, number, and the name and address of the person to

whom the property is to be shipped.

Upon his entry into the RDU program on May 4, 2017, Plaintiff was informed that he was

only allowed to keep personal property that did not exceed two cubic feet in accordance with

NCDPS Policy and Marion C.I. SOPs. Plaintiff’s personal property was inventoried and

documented on two DC-160 forms. The first DC-160 form describes the property Plaintiff elected

to keep, including a “pack of legal papers” and “25 lose [sic] papers.” (Doc. No. 33-8 at 2). The

bottom of the form bears Plaintiff’s signature. The second DC-160 form describes 150 sheets of

paper in multiple colors and poor condition. (Doc. No. 33-8 at 3). The form indicates that the

property was mailed out by Plaintiff and bears his signature. Mail records confirm that this package

was mailed out on May 10, 2017. (Doc. No. 33-9 at 2).

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II. LEGAL STANDARDS

(1) Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fec. R. Civ. P.

56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

fact is material only if it might affect the outcome of the suit under governing law. Id.

The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted).

Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving

party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.

The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings

to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient

evidence from which “a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818

(4th Cir. 1995).

When ruling on a summary judgment motion, a court must view the evidence and any

inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477

U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for

the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586

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(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

As a general rule, when one party files a motion for summary judgment, the non-movant

cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like,

respond to the motion. Celotex, 477 U.S. at 324 ; Kipps v. Ewell, 538 F.2d 564, 566 (4th Cir. 1976);

Fed. R. Civ. P. 56(e). However, a verified complaint, like the Amended Complaint that Plaintiff

filed, is the equivalent of an opposing affidavit for summary judgment purposes, when the

allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820,

823 (4th Cir. 1991); Davis v. Zahradnick, 600 F.2d 458, 459–60 (4th Cir. 1979) (holding that the

factual allegations contained in a verified complaint establish a prima facie case under 42 U.S.C.

§ 1983, so as to preclude summary judgment).

(2) Due Process

The Fourteenth Amendment’s Due Process Clause provides that no person shall be

deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend XIV. The

first inquiry in any due process challenge is whether the plaintiff has been deprived of a protected

interest in property or liberty that was accomplished by state action. Tigrett v. The Rector and

Visitors of the Univ. of Va., 290 F.3d 620, 628 (4th Cir. 2002); Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 167, 172 (4th Cir. 1988). “Unless there has been a ‘deprivation’ by ‘state action,’

the question of what process is required and whether any provided could be adequate in the

particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not

implicated.” Stone, 855 F.2d at 172. Moreover, “the Due Process Clause is simply not implicated

by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”

Daniels v. Williams, 474 U.S. 327, 328 (1986).

Where a state employee’s random, unauthorized act deprives an individual of property,

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either negligently or intentionally, the individual is relegated to his state post-deprivation process,

so long as the State provides an adequate post-deprivation remedy. Hudson v. Palmer, 468 U.S.

517 (1984); Parratt v. Taylor, 451 U.S. 527 (1981), overruled on other grounds by Daniels, 474

U.S. at 327. However, post-deprivation remedies do not satisfy the due process requirement where

the deprivation complained of is effected pursuant to an established state procedure rather than a

random, unauthorized action. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

Under North Carolina law, an action for conversion will lie against a public official who

wrongfully deprives an owner of his property by an unauthorized act. Gallimore v. Sink, 27

N.C.App. 65, 67, 218 S.E.2d 181, 182 (1975). North Carolina’s post-deprivation remedies are

adequate. N.C. Gen. Stat. § 143-291; see Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983) (due

process satisfied where North Carolina tort law provides an adequate avenue for relief for state

prisoner).

(3) Qualified Immunity

The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Qualified immunity “balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The existence of qualified immunity “generally turns on the

‘objective reasonableness’ of the actions” without regard to the knowledge or subjective intent of

the particular official. Am. Civil Libs. Union of Md., Inc. v. Wicomico County, Md., 999 F.2d

780, 784 (4th Cir. 1993) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 641 (1987)) (internal

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citations omitted).

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step sequence

for resolving government officials’ qualified immunity claims by determining whether: (1) the

facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) the

right at issue was “clearly established” at the time of defendant’s alleged misconduct. While the

sequence of the steps set forth in Saucier is “often appropriate,” it is not mandatory. Pearson, 555

U.S. at 236. Judges are permitted to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand. Id.

To overcome the qualified immunity defense at the summary judgment stage, the plaintiff

must have shown facts that make out a violation of a constitutional right, and the right at issue

must have been “clearly established” at the time of the defendant’s alleged misconduct. Thompson

v. Commonweath of Va., 878 F.3d 89, 97 (4th Cir. 2017) (citing Pearson, 555 U.S. at 232). The

analysis takes place against the backdrop of two dueling interests: “the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555

U.S. at 231.

To find a right is clearly established does not mean that “the exact conduct at issue [must]

have been held unlawful for the law governing an officer’s actions to be clearly established.”

Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001). Rather, the court’s analysis must take into

consideration “not only already specifically adjudicated rights, but those manifestly included

within more general applications of the core constitutional principle invoked.” Id. at 362-63

(internal quotation omitted). The right at issue is “clearly established” for qualified immunity

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purposes if:

[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right. That is not to say that an official

action is protected by qualified immunity unless the very action in question has

previously been held unlawful, but it is to say that in light of pre-existing law the

unlawfulness must be apparent.

Anderson, 483 U.S. at 640 (citation omitted).

To determine if the right in question was clearly established, the court first looks to cases

from the Supreme Court, the Fourth Circuit, or the highest court of the state in which the action

arose. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004). In the absence of “directly

on-point binding authority,” courts may also consider whether “the right was clearly established

based on general constitutional principles or a consensus of persuasive authority.” Booker v. South

Carolina Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at 279 (“the absence

of controlling authority holding identical conduct unlawful does not guarantee qualified

immunity.”). Ordinarily, the unlawfulness of government conduct must be apparent in light of pre-

existing law. White v. Pauly, 137 S.Ct. 548, 442 (2017). However, a “general constitutional rule

… may apply with obvious clarity ... even though the very action in question has not previously

been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (citing United States v. Lanier, 520

U.S. 259, 271 (1997)). Therefore, “officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id.

III. DISCUSSION

(1) Due Process

Plaintiff argues that Defendants violated due process by confiscating property that, he

alleges, was beneath the two-cubic-foot limit provided by NCDPS Policy & Procedure.

As a preliminary matter, Plaintiff makes allegations in his Letter in response to Defendants’

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Motion for Summary Judgment that exceed the scope of the claims that passed initial review. See

generally Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir. 2009) (“a plaintiff

may not raise new claims after discovery has begun without amending his complaint); Barclay v.

White Skanska, Inc. v. Battelle Mem. Inst., 262 Fed. Appx. 556, 563 (4th Cir. 2008) (same).

Plaintiff has not sought to file a Second Amended Complaint and the deadline to do so expired on

May 2, 2019. (Doc. No. 25). Therefore, to the extent that Plaintiff attempts to raise new claims in

his Letter in response to Defendants’ Motion for Summary Judgment, such claims are improperly

before the Court and will be disregarded.

Defendants argue that they should be granted summary judgment on Plaintiff’s individual-

capacity claims because he fails to demonstrate that any of the named Defendants were involved

in any way in the alleged loss of his property. Defendants have submitted two property DC-160

forms pertaining to Plaintiff and allege that they demonstrate that he was not deprived of his

personal property. The forms bear Plaintiff’s signature and show that Plaintiff was allowed to keep

some property, that he was allowed to ship excess property to an address of his choice, and that

the mailing actually occurred. The staff member who handled this process was Correctional

Officer Wortman, who is not a Defendant in this action. Plaintiff fails to rebut any of the foregoing

with evidence of his own. See generally Smith v. Ozmint, 578 F.3d 246, 254 (4th Cir. 2009)

(“Although the undersigned does not make a credibility determination, ‘[w]hen opposing parties

tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.’”) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). Plaintiff’s

claims against Defendants in their individual capacities are unsupported by any evidence and

Defendants will be granted summary judgment on this basis.

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Defendant Lassiter argues that he should be granted summary judgment on the claims

against him in his official capacity because he is now retired and is no longer in a position to carry

out injunctive or declaratory relief. See (Doc. No. 32 at 14 n.1). The Court acknowledges

Defendant Lassiter’s retirement. See Fed. R. Ev. 201. However, Defendant Lassiter’s Motion on

this ground is moot insofar as replacement of a named official results in automatic substitution of

the official’s successor in office in an official-capacity action in federal court. See Kentucky v.

Graham, 473 U.S. 159, 166 n.11 (1985); Fed. R. Civ. P. 25(d)(1). Therefore, the issuance of an

injunction against Defendant Lassiter in his official capacity would not be defeated by his

retirement and his substitution for his successor has already occurred automatically. See, e.g.,

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) (retirement of police commissioner did not affect

action for injunctive relief with regards to police department’s longstanding practice because

“[o]ur concern is not with the person who happens to hold the office at a particular time, but with

the office.”). Regardless of this issue’s mootness, Defendants are entitled to summary judgment

for the other reasons discussed in this Section.

Plaintiff alleges that he was deprived of his personal property without due process upon his

entry into the RDU program at Marion C.I. However, Defendants have presented evidence that

Plaintiff’s possession of property was limited to that provided under NCPDS Policy & Procedure

and Marion C.I. SOPs, and that he was allowed to mail out excess property, which Plaintiff has

failed to rebut. See Smith, 578 F.3d at 254. To the extent that Plaintiff claims that Defendants

failed to abide by the applicable Policy and SOP, Plaintiff may proceed for such an unauthorized

act under State law, which provides an adequate post-deprivation remedy.

Finally, Defendants argue that they are entitled to qualified immunity because their conduct

was reasonable and did not violate a clearly established statutory or constitutional right.

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Defendants presented evidence demonstrating that they did not deprive Plaintiff of property

without due process and that they complied with applicable Policy and SOPs. Plaintiff has failed

to rebut this evidence with anything other than his own unsupported and conclusory assertions to

the contrary. Therefore, Defendants are entitled to qualified immunity and for this reason, too, they

will be granted summary judgment.

IV. CONCLUSION

Based on the foregoing, Defendants’ Motion for Summary Judgment will be granted in

part and denied in part as moot, and this case will be closed.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment, (Doc. No. 31), is GRANTED in part and

DENIED in part as moot.

2. The Clerk of Court is instructed to close this case.

Signed: November 14, 2019

Frank D. Whitney

Chief United States District Judge ~“#*"

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