The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:21-cv-00097-MR
OSCAR PEREZ, )
)
Plaintiff, )
)
vs. )
)
TROY A. MORRISON, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on initial review of the Amended
Complaint [Doc. 20] and on the Plaintiff’s Motion to Reconsider a Preliminary
Injunction or Temporary Restraining Order [Doc. 23].
I. BACKGROUND
The incarcerated Plaintiff, proceeding pro se, filed this civil rights action
addressing incidents that allegedly occurred at the Alexander Correctional
Institution.1 The Complaint passed initial review on claims of retaliation and
due process violations related to security risk group (SRG) designations and
1 According to the Plaintiff, he was transferred to North Carolina Department of Public
Safety (NCDPS) from the Indiana Department of Corrections on February 11, 2020
pursuant to the Interstate Corrections Compact. [Doc. 20 at 4].
restricted housing against Defendant Troy A. Morrison,2 an SRG officer.
[Docs. 1, 12]. The Plaintiff was granted leave to amend and the Court
granted him an extension of time to file an Amended Complaint. [Doc. 12;
see April 6, 2022 text-only Order]. The Amended Complaint is now before
the Court for initial review. [Doc. 20].
The Plaintiff names Morrison and “unknown prison officials” as
Defendants. [Id. at 1]. He raises claims of retaliation, interference with the
mail, denial of access to the courts, and due process violations. The Plaintiff
seeks compensatory, nominal, and punitive damages, a declaratory
judgment, injunctive relief, and a jury trial. [Id. at 15].
The Plaintiff has also filed a Motion asking the Court to reconsider its
denial of preliminary injunctive relief directed to prison staff’s allegedly
retaliatory and harassing conduct. [Doc. 23].
II. STANDARD OF REVIEW
Despite the Plaintiff’s payment of the filing fee, 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
2 “Mr. Morrison/SRG Officer” in the Complaint. [Doc. 1 at 1]. The Clerk will be directed
to correct the Defendant’s name in the Court’s record.
may be granted; or seeks monetary relief from a defendant who is immune
to such relief. 28 U.S.C. § 1915A.
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 § 1983, a plaintiff must allege that he was
“deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
A. Parties
The Plaintiff names “unknown prison officials” as Defendants, and the
body of the Complaint contains numerous vague terms such as “prison
officials” [Doc. 20 at 2-3, 9, 12] and “investigators” [id. at 5].
John Doe suits are permissible only against “real, but unidentified,
defendants.” Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The
designation of a John Doe defendant is generally not favored in the federal
courts; it is appropriate only when the identity of the alleged defendant is not
known at the time the complaint is filed and the plaintiff is likely to be able to
identify the defendant after further discovery. See Roper v. Grayson, 81 F.3d
124, 126 (10th Cir. 1996); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980). “[I]f it does not appear that the true identity of an unnamed party can
be discovered through discovery or through intervention by the court, the
court could dismiss the action without prejudice.” Schiff, 691 F.2d at 198
(footnote omitted). Here, the Plaintiff’s allegations are vague and he has
provided no information from which the Court can conclude that he would
likely be able to identify the “unknown prison officials” through discovery.
Accordingly, the “unknown prison officials” will be dismissed as Defendants
without prejudice.
B. Retaliation
The Plaintiff reiterates his claims that Officer Morrison retaliated
against him for exercising his First Amendment rights. [Doc. 20 at 2-3, 7-9].
These claims pass initial review for the same reasons described in the Order
on initial review of the Complaint. [See Doc. 12 at 4-5].
C. Due Process
The Plaintiff again claims that Defendant Morrison improperly
confiscated his mail and legal documents, imposed SRG restrictions, and
placed him on restricted housing without due process. [See Doc. 20 at 3-4].
He also appears to claim that he was denied access to the prison grievance
procedure, or that his attempts to obtain relief through the grievance system
were unsuccessful. [Id. at 6].
As explained in the Order on initial review of the Complaint, the Plaintiff
has minimally stated a claim that Defendant Morrison violated his due
process rights with regard to SRG and restricted housing, but he has failed
to state a claim with regard to the alleged deprivations of property. [Doc. 12
at 6-10]. To the extent that the Plaintiff complains about the prison grievance
procedure, this fails to state a claim because “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). “An inmate thus cannot bring a § 1983 claim alleging denial of a
specific grievance procedure.” Booker v. S.C. Dep’t of Corr., 855 F.3d 533,
541 (4th Cir. 2017). Therefore, the due process claim with regards to SRG
and restrictive housing have passed initial review, and the Plaintiff’s other
due process claims are dismissed.
D. Interference with Mail
The Plaintiff again alleges that Officer Morrison interfered with his mail.
[Doc. 20 at 3, 9-11]. This claim is dismissed for the reasons discussed in the
Order on initial review of the Complaint. [Doc. 12 at 10-11].
E. Access to the Courts
The Plaintiff reiterates his claims about lack of access to the courts.
[Doc. 20 at 11-12]. He further alleges that Defendant Morrison’s actions, and
the resulting mail delays, made him unable to meet filing deadlines in a §
1983 case in the U.S. District Court for the Southern District of Indiana, Case
No. 2:20-cv-22-JRS-DLP. He alleges that this prompted the Indiana Court
to recruit counsel to assist the Plaintiff such that the Plaintiff “lost the ability
to litigate his own case.”3 [Id. at 12-13]. The Plaintiff has failed to state a
claim for the denial of access to the courts for the reasons discussed in the
Order on initial review of the Complaint. [Doc. 12 at 11-12].
3 A review of the record in Case No. 2:20-cv-22 reveals that the Plaintiff moved for the
appointment of counsel [2:20-cv-22, Doc. 15], which the Court denied [Id., Doc. 16].
However, the Court provided the Plaintiff a form to request the Court’s assistance with
recruiting counsel, which the Plaintiff completed and filed. [Id., Docs. 16, 52]. The Court
ultimately granted the Plaintiff’s request for assistance, and two recruited lawyers have
now appeared in the case. [Id., Docs. 118, 125, 128, 129]. A jury trial is scheduled to
commence in that case on January 3, 2023. [Id., Doc. 150].
F. Motion for Reconsideration
The Plaintiff has filed a Motion asking the Court to reconsider its denial
of preliminary injunctive relief. [Doc. 23]. He claims that, since Defendant
Morrison waived service in this case, he has retaliated against the Plaintiff
by ordering him to be searched, and by having other staff members harass
and intimidate him. He specifically notes an incident where he was strip
searched for “suspicious activity” on June 22, 2022, which yielded a butter
packet, a pen, and a food menu. [Doc. 23 at 2]. He asks the Court to issue
a preliminary injunction preventing Defendant Morrison from retaliating
against the Plaintiff, interfering with his access to the courts, or from
investigating, searching, or confiscating anything from the Plaintiff, such that
Morrison cannot fabricate charges against him. The Plaintiff’s request for
preliminary injunctive relief is denied for the reasons set forth in the Order on
initial review of the Complaint. [Doc. 12 at 12-13]. The Plaintiff has failed to
state any grounds that would warrant reconsideration of the earlier denial of
preliminary injunctive relief and, accordingly, the Motion to Reconsider is
denied.
IV. CONCLUSION
In sum, the Plaintiff’s § 1983 claims for retaliation and violating due
process with regards to SRG and restricted housing have passed initial
review against Defendant Morrison. The remaining claims are dismissed
without prejudice. The Plaintiff's Motion to Reconsider is denied.
ORDER
IT IS, THEREFORE, ORDERED that:
1. Amended Complaint [Doc. 20] has passed initial review against
Defendant Morrison for retaliation and violating due process with
regards to SRG and restricted housing.
2. The remaining claims are DISMISSED WITHOUT PREJUDICE.
3. Plaintiff's Motion to Reconsider a Preliminary Injunction or
Temporary Restraining Order [Doc. 23] is DENIED.
The Clerk of Court is respectfully instructed to substitute Troy A.
Morrison for “FNU Morrison” in the Court’s record, terminate “John and Jane
Does” as Defendants, and mail the Plaintiff a copy of this Order.
ITIS SOORDERED, 9 “n° Aueust to, 2022
Martifi Reidinger ee
Chief United States District Judge AS