James-Bey v. N.C. Dept. of Public Safety

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00020-MR

TERRANCE L. JAMES-BEY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

KENNETH LASSITER, et. al., )

)

Defendants. )

___________________________ )

THIS MATTER comes before the Court on Defendants’ Motion for

Summary Judgment. [Doc. 95].

I. PROCEDURAL BACKGROUND

Plaintiff Terrance L. James-Bey (“Plaintiff”) is a prisoner of the State of

North Carolina currently incarcerated at Bertie Correctional Institution in

Windsor, North Carolina. On January 22, 2019, Plaintiff, proceeding pro se,

filed this action pursuant to 42 U.S.C. § 1983, naming 19 individuals and the

North Carolina Department of Public Safety (NCDPS) as Defendants. [Doc.

1]. Plaintiff claims, in part, that officials at Marion Correctional Institution

(“Marion”), his previous place of incarceration, improperly confiscated his

property, including religious and legal papers, and then denied him a proper

disciplinary hearing. [See id.]. Before initial review was conducted, Plaintiff

filed two motions for emergency injunctive relief seeking an Order from the

Court requiring Marion officials to immediately return the confiscated

materials. [Docs. 6, 7]. The Court denied Plaintiff’s motions for Plaintiff’s

failure to show likelihood of success on the merits.1 [Doc. 9].

The Court conducted initial review of Plaintiff’s Complaint and ordered

Plaintiff to file an Amended Complaint to remedy the identified defects and

deficiencies. [Doc. 18]. Plaintiff timely filed an Amended Complaint.2 [Doc.

22]. On initial review of the Amended Complaint, Plaintiff’s claims against

Defendants Kenneth Lassiter, Monica Bond, Robert Barker, Thomas

Hamilton, and H. Corpening, in their individual capacities, based on the

conduct of disciplinary hearings related to the confiscated materials

survived.3 [Doc. 28]. Plaintiff identified Defendant Lassiter as the Director

of Prisons, Defendant Bonds as the Chief NCDPS Disciplinary Hearing

Officer (DHO), Defendant Barker as an NCDPS DHO, Defendant Hamilton

as a Unit Manager at Marion, and Defendant Corpening as the Warden of

1 Plaintiff has since brought five more motions for emergency injunctive relief in this matter,

all of which have been denied. [Docs. 23, 24, 26, 27, 59, 60, 73, 75, 84, 85].

2 Neither Plaintiff’s original Complaint nor his Amended Complaint were submitted under

penalty of perjury.

3 Although Plaintiff did not allege what constitutional right he believes was violated by

Defendants’ conduct, the Court construed this surviving claim as one brought under the

due process clause of the Fourteenth Amendment. [See Doc. 28].

Marion. [Doc. 22 at 2-4]. The remainder of Plaintiff’s claims and the other

named Defendants were dismissed. [Id. 10-11]. For relief, Plaintiff seeks

monetary damages and return of the confiscated materials. [Doc. 22 at 10].

Plaintiff appealed the Court’s initial review Order and moved to recuse

the Honorable Frank D. Whitney, District Court Judge, from presiding over

this matter. [See Doc. 26, 33-35]. The Court denied Plaintiff’s motion to

recuse4 [Doc. 39] and the Fourth Circuit ultimately dismissed Plaintiff’s

appeal for failure to prosecute [Doc. 54-1]. On March 16, 2020, the Court

entered its Pretrial Order and Case Management Plan setting the deadlines

in this case. [Doc. 57]. Beginning in March 2020, the Court’s mail to the

Plaintiff began being returned as “Refused by Inmate.” [See Docs. 55, 56,

58, 61]. The Court cautioned Plaintiff that refusing mail from this Court may

constitute a failure to prosecute this case. [Doc. 60]. Thereafter, on

Defendants’ motion, the Court ordered Plaintiff to notify the Court whether

he intended to prosecute this action. [Docs. 62, 63]. Plaintiff failed to

respond to the Court’s Order, which was again returned as refused by

Plaintiff. [See Doc. 64]. The Court, therefore, dismissed this action without

prejudice. [Doc. 66]. Over eight months later Plaintiff moved to reopen his

4 On April 22, 2020, this case was reassigned to the Undersigned for reasons wholly

unrelated to this case.

case, claiming he never received the Court’s communications or the Order

requiring Plaintiff to notify the Court whether he intended to prosecute this

action. [Doc. 76]. The Court granted Plaintiff’s motion and reopened this

case. [Doc. 79].

On September 1, 2021, Defendants moved for summary judgment.

[Doc. 95]. Defendants argue that summary judgment should be granted

because Defendants did not violate Plaintiff’s constitutional rights, because

qualified immunity bars Plaintiff’s claims for monetary relief, and because

Plaintiff’s Complaint was subject to dismissal in the first instance because he

had previously had three actions dismissed as frivolous under 28 U.S.C. §

1915(g).5 [Doc. 96]. In support of their summary judgment motion,

Defendants submitted a brief; Plaintiff’s infractions and disciplinary history;

January 2, 2019 disciplinary hearing records, including copies of the

confiscated documents; discovery documents produced to Plaintiff, including

5 It appears that this action should have been dismissed in the first instance under 28

U.S.C. § 1915(g). This provision bars a prisoner who is proceeding in forma pauperis to

file a civil action if the prisoner has, on 3 or more prior occasions, had an action dismissed

for failure to state a claim for relief or as frivolous. 28 U.S.C. § 1915(g). Plaintiff has had

three actions in this District (Case Nos. 1:04-cv-88, 1:05-cv-15, and 1:05-cv-225)

dismissed for his failure to state a claim for relief and one action dismissed as frivolous in

the Eastern District (Case No. 5:04-ct-599-BO). Since then, Plaintiff has had five actions

dismissed in the Eastern District (Case Nos. 5:05-ct-408-H, 5:05-ct-490-D, 5:11-ct-

03071-FL, 5:11-ct-03182-F, and 5:12-ct-03200-BO) under § 1915(g). Because the Court

sees no direct authority allowing for dismissal at this stage of litigation under § 1915(g),

the Court, out of an abundance of caution, addresses Defendants’ summary judgment

motion on the merits.

the NCDPS Offender Disciplinary Procedures Policy; and dismissal orders

in previous actions filed by Plaintiff constituting “strikes” under 28 U.S.C. §

1915(g). [Docs. 96, 97, 97-1 to 97-3].

Thereafter, the Court entered an order in accordance with Roseboro v.

Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the requirements

for filing a response to the summary judgment motion and of the manner in

which evidence could be submitted to the Court. [Doc. 98]. The Plaintiff was

specifically advised that he “may not rely upon mere allegations or denials of

allegations in his pleadings to defeat a summary judgment motion.” [Id. at

2]. Rather, he must support his assertion that a fact is genuinely disputed

by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” [Id. (citing Fed. R.

Civ. P. 56(c)(1)(a))]. The Court further advised that:

An affidavit is a written statement under oath; that is,

a statement prepared in writing and sworn before a

notary public. An unsworn statement, made and

signed under the penalty of perjury, may also be

submitted. Affidavits or statements must be

presented by Plaintiff to this Court no later than

fourteen (14) days from the date of this Order and

must be filed in duplicate.

[Id. at 3-4 (citing Fed. R. Civ. P. 56(c)(4))].

In response, Plaintiff filed a three-page, handwritten “Answer To

Defendants Motion to Dismiss” that is not in the form of an affidavit or signed

under penalty of perjury. [See Doc. 99]. As noted, neither of Plaintiff’s

complaints were verified or otherwise submitted under penalty of perjury and,

therefore, also cannot be considered for their evidentiary value here. See

Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (holding that a district

court is to consider verified prisoner complaints as affidavits on summary

judgment when the allegations contained therein are based on personal

knowledge). Thus, in terms of evidentiary forecast, the Defendants’ is

unrefuted.

II. STANDARD OF REVIEW

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.” Fed. 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. Rather, the nonmoving party

must oppose a proper summary judgment motion with citation to

“depositions, documents, electronically stored information, affidavits or

declarations, stipulations …, admissions, interrogatory answers, or other

materials” in the record. See id.; Fed. R. Civ. P. 56(c)(1)(a). Courts “need

not accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” Eastern Shore Mkt. Inc. v. J.D. Assoc.’s, LLP, 213 F.3d 174,

180 (4th Cir. 2000). 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. Facts, however, “must be

viewed in the light most favorable to the nonmoving party only if there is a

‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127

S.Ct. 1769, 1776 (2007).

III. FACTUAL BACKGROUND

Defendants’ uncontroverted forecast of evidence shows the following.

Plaintiff is currently serving a life sentence for first degree murder. [See

Doc. 97-2 at 1]. At the relevant times, he was classified as a Security Risk

Group (SRG) inmate due to his validation as a member of the Blood gang.

[Doc. 97-2 at 3]. On or around October 16, 2018, Officer Jennifer Grant was

taking inventory or Plaintiff’s property during his intake for the Rehabilitation

Diversion Program (RDU)6 at Marion. [Id. at 38]. Officer Grant discovered a

folder labelled “legal papers” that “contained a stack of papers with a square

cut out in the center that looked suspicious.” [Id.]. Officer Grant also

6 The RDU program at Marion “was created as part of North Carolina Department of Public

Safety’s (NCDPS) recent policy reforms regarding restrictive housing in the North

Carolina prisons.” Covington v. Lassiter, No. 1:16-cv-00387, 2017 WL 3840280, at *5

(W.D.N.C. Sept. 1, 2017). “[T]he RDU program was designed to help people transition

from Control to regular population through the provision of targeted behavioral

programming and increasing privileges, congregate activity, and out-of-cell time.” Id.

(internal quotations omitted).

discovered papers containing possible SRG material. [Id.]. She turned over

the materials to SRG officers for review and the packet was given to SRG

Intelligence Officer Adam Hergenrother. [Id. at 12, 38]. Officer Hergenrother

reviewed the materials, which confirmed the cut out apparently intended to

conceal contraband. The remaining papers contained references to

“Sovereign Citizen”7 concepts, documents reflecting Plaintiff’s Sovereign

Citizen status, and other forms and documents typically used by individuals

who purport to be Sovereign Citizens. [Id. at 12]. On October 26, 2018, after

his review, Officer Hergenrother concluded that Plaintiff “altered his legal

work to conceal contraband and was in possession of a large amount of SRG

related materials in reference to the sovereign citizens.” [Id.].

Thereafter, Sergeant Chad Jenkins was assigned to investigate

Plaintiff’s offenses. [See id.]. Jenkins verified the statements and evidence

collected by Hergenrother. [Id. at 13]. Jenkins also met with the Plaintiff as

7 “So-called sovereign citizens argue that, though they are born and reside in the United

States, they are their own sovereigns and are not United States Citizens.” Pinckney v.

U.S. Government – I.R.S., No. 2:19-3046-BHH-BM, 2020 WL 3474011 (D.S.C. Jan. 27,

2020) (citation omitted). Sovereign Citizens, sometimes referred to as “free born Moors”

or “Moorish American,” “are widely recognized as a security threat group in prisons

because the group attempts to undermine governmental authority.” Love v. N.C. Dep’t of

Public Safety, No. 5:19-cv-00075-MR, 2020 WL 6050583 (W.D.N.C. Oct. 13, 2020). See

e.g., Colar v. Heyns, No. 1:12-cv-1269, 2013 WL 141138, at *3 (W.D. Mich. Jan. 11, 2013)

(“The ‘sovereign citizen movement’ is well documented. The Federal Bureau of

Investigation has classified ‘sovereign citizens’ as domestic terror threats because they

are anti-government extremists.”).

part of his investigation. [Doc. 97-2 at 13]. Jenkins read Plaintiff his rights

in the disciplinary hearing process. [Id.; see id. at 35]. On October 27, 2018,

Plaintiff wrote a statement on his own behalf, claiming that Officer

Hergenrother is clearly “incompetent and poorly trained.” [Id. at 39]. Plaintiff

claimed that he is not and never has been a sovereign citizen, that the “SRG

clearly misrepresented [his] legal documents as something they are NOT, as

these papers are letters from [his] lawyer, documents he provided, and the

notes from [his] research of [his] legal matters.” [Id.]. Finally, Plaintiff argued

that the confiscated materials are “above [the prison officials’]

comprehension.” [Id. at 40]. Plaintiff requested that statements be gathered

from Officer Grant and Mitchell Reich on Plaintiff’s behalf. The confiscated

documents show that Reich is or was Plaintiff’s attorney. [Id. at 56-57, 65].

Plaintiff also requested that these witnesses be present – Reich by

teleconference – at Plaintiff’s disciplinary hearing. [Id. at 13]. Plaintiff

requested certain evidence at the hearing, including his DC-160 Personal

Property Inventory form and “SRG training schedules and hours spent for

certification.” [Id.]. Finally, Plaintiff requested staff assistance at the hearing.

[Id.].

The confiscated documents included documents reflecting Plaintiff’s

proclaimed Sovereign Citizen status, including Plaintiff’s “Declaration of

Sovereignty” and a “Proclamation” of Moorish American nationality; letters

from Reich reflecting Plaintiff’s request for assistance in registering as a non-

U.S. Citizen and Reich’s advice not to do so; UCC Financing Statements

typically used by Sovereign Citizens for (attempted) financial gain; and other

documents consistent with Plaintiff’s alignment as a Sovereign Citizen. [See

id. at 41-108]. As a result of the investigation, Jenkins recommended that

Plaintiff be charged with an A-14 offense for participating in or organizing any

gang or SRG activity and a C-17 offense for possessing contraband. [Id. at

14]. Jenkins submitted his Investigation Report to the Superintendent of

Marion on December 18, 2018. [Id.].

A disciplinary hearing was held on January 2, 2019. [Doc. 97-2 at 1].

Defendant Robert Barker was the DHO. [See id. at 4]. Reich’s statement

had not been obtained, and Reich was not telephonically present at the

hearing because the investigator was “not able to identify this person.” [Id.

at 13; see id. at 56-57,65]. A statement from Officer Grant, however, had

been obtained. [Id. at 5]. The requested SRG training materials were not

collected because they are not public information, but that they would be

provided on request of the DHO. Plaintiff’s DC-160 form and copies of the

SRG-related materials were provided with the Report. Correctional Officer

S. Reynolds, who was present at the hearing to assist Plaintiff, spoke with

Plaintiff to ensure that he understood the process. Officer Reynolds also

ensured that the proceedings were conducted according to current policy

and procedures. [Id. at 8].

In his record of the hearing, Defendant Barker detailed the evidence

before him and found Plaintiff guilty of the two charged offenses. [Doc. 97-

2 at 3, 7]. Defendant Barker noted that, at the hearing, Plaintiff was unable

to say why Reich was needed as a live witness or what other evidence Reich

could have added for consideration. [Id. at 5]. It appears that Plaintiff

received a suspended sentence of 20 days in the Restrictive Housing for

Disciplinary Purposes (RHDP), 30 days lost good time credit, and 50 hours

extra duty on the A-14 offense and a suspended sentence of 10 days lost

good time credit and 30 hours extra duty on the C-17 offense.8 [Id. at 3].

There is no forecast of evidence that any of these sentences were activated.

Barker stated that Plaintiff’s disciplinary history was considered when

determining the sentence, which was “imposed to deter future acts of this

nature.” [Id. at 7].

Plaintiff appealed Defendant Barker’s decision the same day. For

8 The NCDPS Offender Disciplinary Procedures Policy provides that a DHO may suspend

all or part of a sentence “for a period not to exceed ninety (90) days.” [Doc. 97-4 at 13].

The DHO may activate a suspended sentence “if a disciplinary conviction occurs during

the suspension time period.” [Id.].

grounds, he stated, “[a]s a free born Moor, NC-DPS has no authority to

classify [his] federal documents as SRG material.” He also claims that he

was “denied staff assistance; denied evidence; [and] denied to specify the

foundation of accusation.” [Doc. 97-2 at 2]. Defendant Barker’s decision

was upheld on appeal. [See Doc. 97-2 at 1].

IV. DISCUSSION

A. Due Process

To prevail on a procedural due process claim, an inmate must first

demonstrate that he was deprived of “life, liberty, or property” by

governmental action. Bevrati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997).

Although prisoners are afforded some due process rights while incarcerated,

those liberty interests are limited to “the freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force, nonetheless imposes

atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The

Supreme Court has repeatedly held that a prisoner has no constitutional right

under the due process clause to be incarcerated in a particular facility or to

be held in a specific security classification, barring some showing by the

prisoner that his confinement posed an atypical and significant hardship in

relationship to the ordinary incidents of prison life. See Wilkinson v. Austin,

545 U.S. 209 (2005); Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Moody

v. Daggett, 429 U.S. 78, 88 n.9 (1976); Hewitt v. Helms, 459 U.S. 460, 468

(1976). Moreover, changes “in a prisoner’s location, variations of daily

routine, changes in conditions of confinement (including administrative

segregation), and the denial of privileges [are] matters which every prisoner

can anticipate [and which] are contemplated by his original sentence to

prison.” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991); Slezak v. Evatt,

21 F.3d 590, 594 (4th Cir. 1994) (“The federal constitution itself vests no

liberty interest in inmates in retaining or receiving any particular security or

custody status ‘[a]s long as the [challenged] conditions or degree of

confinement ... is within the sentence imposed ... and is not otherwise

violative of the Constitution.’”) (quoting Hewitt v. Helms, 459 U.S. 460, 468

(1983)).

“Where a prison disciplinary hearing may result in the loss of good time

credits, Wolff held that the inmate must receive (1) advance written notice of

the disciplinary charges; (2) an opportunity, when consistent with institutional

safety and correctional goals, to call witnesses and present documentary

evidence in his defense; and (3) a written statement by the factfinder of the

evidence relied on and the reasons for the disciplinary action.”

Superintendent, Mass. Correctional Institution v. Hill, 105 S. Ct. 2768 (1985)

(citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974)).

Here, Plaintiff has failed to forecast sufficient evidence that he was

deprived of “life, liberty, or property” by governmental action beyond that

which is contemplated by the ordinary incidents of prison life. The

undisputed forecast of evidence shows that Plaintiff was sentenced on his

disciplinary infraction convictions in accordance with NCDPS Policy. The

undisputed forecast of evidence does not show that Plaintiff actually lost any

good time credits on this conviction. Rather, Plaintiff’s sentence included

only suspended sentences for time in RHDP, extra work, and lost good time

credits and there is no forecast of evidence that these sentences were ever

activated.

Moreover, even if Plaintiff had lost good time credits, the disciplinary

hearing was conducted in a manner consistent with Plaintiff’s rights under

Wolff. Plaintiff was given ample notice of the disciplinary charges and was

able to request and present evidence on his own behalf to the extent

consistent with institutional safety and correctional goals. Defendant Barker

prepared an extensive and thorough written statement of the evidence relied

on and the reasons for the disciplinary action against Plaintiff. The only

anomaly in the proceedings was the conclusion that Reich could not be

identified, although the confiscated documents showed that Reich was

Plaintiff’s attorney. It seems if the documents had been carefully reviewed

Reich’s identity would have been revealed. Nonetheless, even if Reich had

been willing to give a statement on Plaintiff’s behalf or appear telephonically

at the hearing, there is no forecast of evidence that the result would have

been different. In fact, it seems Reich’s testimony, to the extent that Plaintiff

would have realistically waived attorney client privilege, would have

supported Plaintiff’s conviction on the A-14 offense. The letters from Reich

to Plaintiff reflected Plaintiff’s desire to register his “sovereign status as a full

life Moor” and Reich’s advice not to do so. Furthermore, Plaintiff failed to

explain how evidence from Reich would have added to the hearing evidence.

As such, the forecast of evidence does not show a constitutionally

protected deprivation of Plaintiff’s “life, liberty, or property” by governmental

action. The Defendants’ motion for summary judgment, therefore, will be

granted.

B. Qualified Immunity

“Qualified immunity protects officers who commit constitutional

violations but who, in light of clearly established law, could reasonably

believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531

(4th Cir. 2011) (en banc). “To determine whether an officer is entitled to

qualified immunity, the court must examine (1) whether the plaintiff has

demonstrated that the officer violated a constitutional right and (2) whether

that right was clearly established at the time of the alleged violation.” E.W.

ex rel. T.W. v. Dolgos, 884 F.3d 172, 178 (4th Cir. 2018) (internal quotation

marks omitted). The doctrine of qualified immunity “gives government

officials breathing room to make reasonable but mistaken judgments and

protects all but the plainly incompetent or those who knowingly violate the

law.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (internal quotation

marks omitted).

Here, because Plaintiff has not presented a forecast of evidence that

Defendants violated a constitutional right, Defendants are entitled to qualified

immunity on Plaintiff’s claims against them. As such, the Court also grants

summary judgment for Defendants on this ground.

V. CONCLUSION

For the reasons stated herein, the Court will grant Defendants’ motion

for summary judgment.

O R D E R

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for

Summary Judgment [Doc. 95] is GRANTED and this action is hereby

DISMISSED with prejudice.

The Clerk is instructed to terminate this action.

IT IS SO ORDERED.

Signed: December 6, 2021

a if

< Reidinger Ls,

Chief United States District Judge

18