The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:19-cv-00106-FDW
HUGH LOCKLEAR, SR., )
)
Plaintiff, )
)
vs. )
)
) ORDER
)
N.C. DEPARTMENT OF PUBLIC )
SAFETY, et al., )
)
Defendants. )
____________________________________)
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint. [Doc. 1].
I. BACKGROUND
Pro Se Plaintiff Hugh Locklear, Sr. (“Plaintiff”) is a North Carolina state inmate currently
incarcerated at Alexander Correctional Institution in Taylorsville, North Carolina. On August 13,
2019, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 naming the North Carolina
Department of Public Safety (NCDPS) and Erik A. Hooks, identified as the Secretary of the
NCDPS, as Defendants. [Doc. 1]. Plaintiff claims that Defendants are infringing on his rights
under the First Amendment to religious freedoms. [Id. at 3].
Specifically, Plaintiff alleges that on August 6, 2019, Defendant Erik Hooks (“Defendant
Hooks”) instituted new prison regulations that prevent Plaintiff from practicing certain elements
of his Native American religion. According to Plaintiff, these include (1) denying access to
tobacco, one of the four “Sacred Herbs” that are smoked in the Native American faith to send
prayers to the Creator; (2) allowing inmates to wear only two of the six Sacred Colors, which are
traditionally worn as headbands to show respect for the “Sacred Spirits;” and (3) violating previous
“court orders and mandates” which “granted three (3) outside services per week in order to use our
Sacred Herbs and send our prayers to the Creator.”1 [Doc. 1 at 4-5]. Plaintiff does not allege what
the new policy is with respect to these outside services. [See id. at 5].
As for the Sacred Herbs, Plaintiff also alleges:
We have been informed that we will [be] switching to a
“kinnikinnick” blend however because we have no vendor to sell us
this blend we have none and will continue to have none for the
foreseeable future until a vendor is found, thus further denying we
Native Americans our religious freedoms.
[Doc. 1 at 4].
For relief, Plaintiff seeks a preliminary injunction “to stop the implementation or
enforcement of the above-cited August 6, 2019 regulations.” [Doc. 1 at 4]. Plaintiff also seeks
declaratory relief requiring the NCDPS to allow the use of the Sacred Herb of tobacco and all six
of the Sacred Colors. [Doc. 1 at 4].
II. STANDARD OF REVIEW
The Court must review Plaintiff’s Complaint to determine whether it is subject to dismissal
on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity,” and the court must identify cognizable claims or dismiss the complaint,
or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or seeks monetary relief from a defendant who is immune from
such relief.
1 Plaintiff concedes that, at the time he filed his Complaint, he had not exhausted his administrative remedies
and filed “this lawsuit seeking a preliminary injunction while [his] grievance passes those [three] stages.”
[Doc. 1 at 2]. As such, it appears Plaintiff’s Complaint is likely subject to dismissal on these grounds.
In its frivolity review, this Court must determine whether the Complaint raises an
indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,
a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, the liberal construction requirement will not permit a district court to ignore a clear
failure to allege facts which set forth a claim that is cognizable under federal law. Weller v. Dep’t
of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
A. Defendant NCDPS
As for Defendant NCDPS, neither the State of North Carolina nor its agencies constitute
“persons” subject to suit under Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58
(1989). Furthermore, the Eleventh Amendment bars Plaintiff’s suit for monetary damages against
the State of North Carolina and its various agencies. See Ballenger v. Owens, 352 F.3d 842, 844-
45 (4th Cir. 2003). As such, NCDPS is not a proper defendant in this matter and will be dismissed.
B. First Amendment
The Free Exercise Clause of the First Amendment states that “Congress shall make no law
respecting an establishment of religion.” U.S. Const. amend. I. The Supreme Court has applied
the First Amendment to the states through the Fourteenth Amendment. See Everson v. Bd. of
Educ., 330 U.S. 1, 15 (1947). To state a free exercise claim under the First Amendment, a plaintiff
must allege facts sufficient to show that he held a sincere religious belief, and that the official
action or regulation substantially burdened his exercise of that belief. Hernandez v. Comm’r, 490
U.S. 680, 699 (1989). A prison policy that substantially burdens an inmate’s ability to practice his
religion withstands a First Amendment challenge when it is “reasonably related to legitimate
penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). In deciding whether a defendant’s actions can be sustained as
reasonably related to legitimate penological interests, the court must consider the following four
factors: (1) whether there is a valid, rational connection between the regulation and the legitimate
penological interest; (2) whether there are alternative means of exercising the right in question that
remain open to prisoners; (3) the impact accommodation of the asserted constitutional right would
have on guards and other inmates and on the allocation of prison resources; and (4) whether ready
alternatives exist which accommodate the right and satisfy the penological interest. See Turner,
482 U.S. at 89-90.
Here, Plaintiff contends that Defendants are infringing on his rights under the First
Amendment to religious freedoms, particularly by instituting new regulations regarding the
composition of “Sacred Herbs” and the colors of headbands Plaintiff, as a prisoner practicing
Native American religion, may employ in the practice of his faith. Plaintiff also alleges that new
prison policy has limited access to outside services. Taking Plaintiff’s allegations as true and
giving him the benefit of every reasonable inference, the Court finds that Plaintiff’s Complaint is
not clearly frivolous.
C. Preliminary Injunction
A preliminary injunction is an extraordinary remedy afforded before trial at the discretion
of the district court. In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir. 2003).
It is an extraordinary remedy never awarded as of right. Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008). In each case, courts “must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested relief.” Amoco
Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). “[C]ourts of equity should pay
particular regard for the public consequences in employing the extraordinary remedy of
injunction.” Winter, 555 U.S. at 24. To obtain a preliminary injunction, the plaintiff must establish
(1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the
absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an
injunction is in the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575
F.3d 342, 346 (4th Cir. 2009).
Reviewing Plaintiff’s Complaint based on the above factors, Plaintiff is not entitled to a
preliminary injunction. Plaintiff’s allegations are barely sufficient to survive initial review.
Plaintiff has not demonstrated any of the elements necessary for the Court to employ the
extraordinary remedy of preliminary injunctive relief. Plaintiff’s request is, therefore, denied.
In sum, NCDPS will be dismissed. Plaintiff’s First Amendment claim survives initial
review and Plaintiff’s request for a preliminary injunction is denied.
IV. CONCLUSION
For the reasons stated herein, Plaintiff’s First Amendment claim is not clearly frivolous
and therefore survives initial review.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s action survives initial review under 28 U.S.C. § 1915(e) as to Plaintiff’s
First Amendment claim against Defendant Erik A. Hooks only. Defendant North
Carolina Department of Public Safety is dismissed as a Defendant in this matter.
2. Plaintiff’s request for a preliminary injunction is DENIED.
3. Local Rule 4.3 sets forth a procedure to waive service of process for current and
former employees of the North Carolina Department of Public Safety (“NCDPS”)
in actions filed by North Carolina State prisoners. The Clerk of Court shall
commence the procedure for waiver of service as set forth in Local Rule 4.3 for
Defendant Erik A. Hooks, who is alleged to be current or former employee of
NCDPS.
Signed: February 3, 2020
Frank D. Whitney é □□□
Chief United States District Judge ~*»**