Greene v. Dye

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

5:21-cv-00135-MR

COREY D. GREENE, )

)

Plaintiff, )

)

vs. )

)

) ORDER

)

J. DYE, et al., )

)

Defendants. )

___________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Amended Complaint [Doc. 14] under 28 U.S.C. §§ 1915A and 1915(e),

Plaintiff’s “Request Case Authorities” [Doc. 8], and Plaintiff’s Motion for

Appointment of Counsel [Doc. 13]. Plaintiff is proceeding in forma pauperis.

[Docs. 2, 12].

I. BACKGROUND

Pro se Plaintiff Corey D. Greene (“Plaintiff”) is a prisoner of the State

of North Carolina, currently incarcerated at Alexander Correctional Institution

(“Alexander”) in Taylorsville, North Carolina. On September 7, 2021, Plaintiff

filed this action pursuant to 42 U.S.C. § 1983 against Defendants J. Dye,

identified as the interim Warden at Alexander; FNU Walker, identified as the

mailroom supervisor; FNU Ellison, identified as an officer working in the

mailroom; and FNU Duncan, identified as the Deputy Warden in charge of

supervision and discipline of correctional staff at Alexander. [Doc. 1 at 1-2].

Plaintiff sues Defendants in their individual and official capacities. [Id. at 2].

In short, Plaintiff claims he is being arbitrarily denied a legal book that he

needs for pending litigation. [Doc. 1]. Plaintiff claims that Defendants

violated his First Amendment rights by denying him access to the courts and

through censorship and violated his Fourteenth Amendment due process

rights by denying Plaintiff the ability to appeal the disapproval of his book.

[Id. at 4].

With his Complaint, Plaintiff filed a motion for temporary restraining

order in which Plaintiff asked the Court to enjoin Defendants from returning

denied property to the sender or destroying it without the opportunity to

appeal the denial. [Docs. 3, 4; see Doc. 1 at 5]. The Court denied Plaintiff’s

motion because Plaintiff showed no likelihood of success on the merits as to

any of his claims. [Doc. 7].

Plaintiff has since filed an Amended Complaint in which he asserts

essentially the same claims but purports to add claims based on the

destruction of Plaintiff’s property and the violation of North Carolina

Department of Public Safety (NCDPS) Policy. Plaintiff also provides some

factual clarification. [Doc. 14]. In the Amended Complaint, Plaintiff alleges

the following. While a segregation inmate, he ordered a book called “101

Things I Learned in Law School” for “pending/ongoing litigation.” [Id. at 2, 4].

On August 19, 2021, after presumably not having received the book, Plaintiff

wrote the mailroom about the book. [Id.]. The mailroom responded, advising

Plaintiff that the book had been disapproved. [Id. at 3]. Plaintiff was not

given a way to appeal the decision, so he wrote his “disapproval” on the

notice form from the mailroom, “along with violations they were committing

both policy and law.” [Id.]. Plaintiff did not receive a response. [Id.]. Plaintiff

also “began to write several officials concerning this policy error” because

Plaintiff “knew that policy gave exemptions on legal and religious material

due to size and/or hardbound censorship issues.” [Id.].

Although mailroom staff avoided Plaintiff when entering the dorms,

Plaintiff was able to speak with Defendant Walker. Walker told Plaintiff that

she believed the book was not a law book, but also “admitted that she did

not know the law.” [Id. at 4]. Assistant Unit Manager Chris Bieker told

Plaintiff that mailroom staff indicated that hardbound books are not sent to

segregation and “that Plaintiff would get the book when [he] got back to the

regular housing units.” [Id. at 4].

For relief, Plaintiff seeks declaratory relief, injunctive relief requiring

prison officials “to uphold DPS policy,” and compensatory and punitive

damages. [Id. at 5-6].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must

review the 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, under § 1915A

the Court must conduct an initial review and identify and dismiss the

complaint, or any portion of the complaint, if it 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 to such relief.

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 in his Complaint 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

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the

violation of a right secured by the Constitution or laws of the United States

and must show that the deprivation of that right was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Destruction of Property

A claim based on the deprivation of his personal property is not

actionable under § 1983 unless there is no adequate post-deprivation

remedy available. See Parratt v. Taylor, 451 U.S. 527, 542 (1981), overruled

on other grounds by 474 U.S. 327 (1986); Harris v. McMullen, 609 Fed.

Appx. 704, 705 (3d Cir. 2015) (unpublished). Plaintiff may bring his claim for

the deprivation of his legal book in state court. As such, Plaintiff has failed

to state a claim for relief based on the destruction of his legal book and it will

be dismissed.

B. Denial of Access to the Courts

Prisoners must have meaningful access to the courts. Bounds v.

Smith, 430 U.S. 817 (1977). The “meaningful access” referred to in Bounds

does not, however, entitle a plaintiff to total or unlimited access. See Moore

v. Gray, No. 5:04-CT-918-FL, 2005 WL 3448047, at *1 (E.D.N.C. Jan. 26,

2005), aff’d, 133 Fed. App’x 913 (4th Cir. 2005) (unpublished) (citation

omitted). The right of access to the courts only requires that prisoners have

the capability of bringing challenges to sentences or conditions of

confinement. See Lewis v. Casey, 518 U.S. 343, 356-57 (1996). Moreover,

as a jurisdictional requirement flowing from the standing doctrine, the

prisoner must allege an actual injury. See id. at 349. “Actual injury” is

prejudice with respect to contemplated or existing litigation, such as the

inability to meet a filing deadline or present a non-frivolous claim. See id. A

plaintiff’s “[f]ailure to show that a ‘nonfrivolous legal claim has been

frustrated’ is fatal to his Bounds claim.” Alvarez v. Hill, 518 F.3d 1152, 1155

n.1 (9th Cir. 2008) (quoting Casey, 518 U.S. at 353).

Plaintiff has not stated a claim for relief on this ground. The denial of

a single legal reference book, which by Plaintiff’s description seems a simple

matter of the book being hardbound and/or exceeding reasonable size limits,

particularly for a segregation inmate, is not denial of access to the courts.

Plaintiff has not alleged, nor could the facts support, that a nonfrivolous legal

claim has been frustrated by the denial of this single book. The Court will,

therefore, dismiss this claim on initial review.

C. Censorship

Prisoners have a limited First Amendment right to send and receive

mail. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). First Amendment

rights in prison, however, “may be curtailed by prison officials under

appropriate circumstances.” Corporal v. Pennington, No. DKC-20-3357,

2021 WL 3269084, at *6 (D. Md. July 30, 2021) (citation omitted). The

Supreme Court has set out a four-factor test to determine the

reasonableness of a prison regulation: (1) whether there is a valid, rational

connection between the prison regulation and the legitimate governmental

interest put forward to justify it; (2) whether there are alternative means of

exercising the right that remain open to prison inmates; (3) the impact of

accommodation of the asserted constitutional right on guards and other

inmates and on the allocation of prison resources generally; and (4) the

availability of “ready alternatives” for furthering the governmental interest.

Turner v. Safely, 482 U.S. 78, 89-90 (1987).

Plaintiff’s allegations here foreclose a First Amendment censorship

claim. At best, Plaintiff was denied a single hardbound, large-sized book

about the law. Moreover, there is a legitimate penological reason to prevent

inmates from possessing large-sized, hardbound books. Namely, such

books could easily be used as weapons. Plaintiff’s allegations also show

that these restrictions are reasonable in that exceptions may be made for

law and religious books for inmates in regular housing, but that segregation

inmates are prevented from having large-sized and/or hardbound books.

Plaintiff was advised that he would be allowed to have the book when he

returned to regular housing. The Court will, therefore, also dismiss this claim

on initial review for Plaintiff’s failure to state a claim.

D. Right to Grieve

Plaintiff asserts that Defendants violated his rights under the

Fourteenth Amendment because they did not allow Plaintiff to appeal the

disapproval of his book. “The Constitution creates no entitlement to

grievance procedures or access to any such procedure voluntarily

established by a state.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). As

such, Plaintiff has also failed to state a claim for relief as to this claim and it

will be dismissed.

E. NCDPS Policy Violation

Plaintiff purports to state a claim for relief based on alleged violation of

NCDPS Policy. Interestingly, Plaintiff’s allegations seem to indicate that the

policy was followed here. That is, Plaintiff was denied an exception for

hardbound legal books because he is a segregation inmate. Even if prison

policy were violated, however, in the denial of this particular legal book, there

is no cause of action under § 1983 for violation of policy. Keeler v. Pea, 782

F.Supp. 42, 44 (D.S.C. Jan. 9, 1992) (“[Section 1983] guarantees a person’s

constitutional rights against violation by state actors. It does not provide any

relief against prison rules violations assuming, arguendo, that such a

violation occurred.”) (emphasis in original). The Court will, therefore, also

dismiss this claim.

IV. CONCLUSION

In sum, Plaintiff has not stated any claim for relief and his Amended

Complaint will be dismissed on initial review.1 The Court will dismiss this

action with prejudice because amendment would be futile and because

Plaintiff already amended his complaint once after the Court’s Order denying

his motion for temporary restraining order, which set forth the requirements

for Plaintiff’s claims. See Green v. Wells Fargo Bank, N.A., 790 Fed. App’x

535, 536 (4th Cir. 2020). The Court will deny Plaintiff’s “Request [for] Case

Authorities” [Doc. 8] and Motion for Appointment of Counsel [Doc. 13] as

moot.

1 Plaintiff’s claims against Defendants Dye and Duncan also necessarily fail because the

doctrine of respondeat superior does not apply in actions brought under § 1983, see

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978), and Plaintiff makes no

allegations of personal participation against them. These Defendants, therefore, would

be dismissed on this ground in any event.

ORDER

IT IS, THEREFORE, ORDERED that:

1. Plaintiff's Amended Complaint [Doc. 14] fails initial review under

28 U.S.C. §§ 1915A and 1915(e) for Plaintiffs failure to state a

claim and is DISMISSED with prejudice.

2. Plaintiff's motions [Docs. 8 and 13] are DENIED as moot.

3. The Clerk is respectfully instructed to terminate this action.

IT IS SO ORDERED.

Signed: November 8, 2021

a if

< Reidinger Ls,

Chief United States District Judge lll

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