Opinion

Perez v. Huneycutt

Court
District Court, W.D. North Carolina
Filed
Jan 23, 2023
Cited by
0 cases
Authority
More cited than 24.9%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:22-cv-00120-MR

OSCAR PEREZ, )

)

Plaintiff, )

)

vs. )

)

FNU HUNEYCUTT, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Complaint. [Doc. 1]. Also pending are Plaintiff’s Request for a Preliminary

Injunction [Doc. 8] and Motion for Case Status Update [Doc. 9]. The Plaintiff

has paid the filing fee in full. [See Doc. 7].

I. BACKGROUND

The pro se Plaintiff, who describes himself as “an Indiana inmate

housed in North Carolina pursuant to the Interstate Corrections Compact

(ICC),” filed this civil rights action pursuant to 42 U.S.C. § 1983 addressing

Standard Operating Procedure (SOP) .0458(7), titled “Offender Tablet

Program,” which prohibits the use of profanity in inmate emails at the

Alexander Correctional Institution and makes violations punishable with

disciplinary sanctions.1 [Doc. 1 at 2-3]. He asserts § 1983 claims for

violations of the First and Fourteenth Amendments of the U.S. Constitution,

and he asks the Court to exercise supplemental jurisdiction over claims

pursuant to Indiana and North Carolina law.2 [See id. at 3-4].

He names as Defendants FNU Huneycutt, the Alexander CI warden

and “Facility Management.” [Id. at 2, 7]. As injury, he claims that his interests

in freedom of expression, society, and culture are being suppressed; that he

has lost “ease of communication;” and that his expression may result in his

placement in restricted housing. [Id. at 7]. He seeks a declaratory judgment;

injunctive relief; compensatory, nominal, and punitive damages; and a jury

trial. [Id. at 7-8].

II. STANDARD OF REVIEW

“Notwithstanding any filing fee ... that may have been paid,” 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, § 1915A

requires an initial review of a “complaint in a civil action in which a prisoner

1 According to the Plaintiff, Alexander CI received a GTL tablet system in June 2021,

which allows inmates and their family and friends to email each other for a fee. [Doc. 1

at 5].

2 He cites, inter alia, the Indiana and North Carolina Interstate Corrections Compacts, Ind.

Code § 11-8-4-8 and N.C. Gen. Stat. § 148-120, respectively.

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.

In its frivolity review, a court must determine whether a 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 purports to name “Facility Management” at Alexander CI

as a Defendant. However, a prison department is not a “person” and thus

cannot be sued under § 1983. See generally Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 70–71 (1989). Accordingly, the claims against “Facility

Management” are dismissed with prejudice.

B. Free Speech

The First Amendment prohibits states from “abridging the freedom of

speech.” U.S. Const. Amend. I; see U.S. Const. Amend XIV. Convicted

prisoners generally retain their First Amendment rights that are not

inconsistent with his status as a prisoner, or with the legitimate penological

objectives of the correctional system. Pell v. Procunier, 417 U.S. 817, 822

(1974). This includes the right to “communicate with others beyond the

prison walls.” Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 213 (4th Cir.

2017). “[W]hen a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); see also

Thornburgh v. Abbott, 490 U.S. 401 (1989).

The Plaintiff claims that Defendant Huneycutt developed and is

enforcing SOP .0458(7); that this regulation does not advance any

penological interest; and that the regulation chills speech by threatening

disciplinary action for its violation. [Id. at 5-7]. Taking the allegations as true

for the purposes of initial review, and construing all inferences in the

Plaintiff’s favor, the Court concludes that the Plaintiff’s First Amendment

claim passes initial review against Defendant Huneycutt as not clearly

frivolous. The question of whether these facts raise any First Amendment

issues is not frivolous and warrants a response from the Defendant.

C. Due Process

The Fourteenth Amendment provides that no “State [shall] deprive any

person of life, liberty, or property, without due process of law….” U.S. Const.

Amend. XIV, § 1. A decision to censor or withhold inmate mail must be

accompanied by “minimum procedural safeguards,” i.e., notice and a

reasonable opportunity to appeal to a disinterested prison official. Procunier

v. Martinez, 416 U.S. 396, 418 (1974), overruled on other grounds by

Thornburgh v. Abbott, 490 U.S. 401 (1989).

The Plaintiff claims that, through SOP .0458(7), Defendant Huneycutt

is rejecting and censoring emails without notice or the opportunity to appeal.

[Doc. 1 at 3, 7]. Taking the allegations as true for the purposes of initial

review, and construing all inferences in the Plaintiff’s favor, the Court

concludes that the Plaintiff’s due process claim passes initial review against

Defendant Huneycutt as not clearly frivolous.

D. Pending Motions

The Plaintiff’s Motion for a case status update [Doc. 9] is denied as

moot because the Clerk mailed the Plaintiff a copy of the docket sheet in

response to his Motion.

Finally, the Plaintiff moves for preliminary injunctive relief. [Doc. 8]. He

asks the Court to prevent him from being charged with a disciplinary

infraction for emails that his friends and family may exchange with him that

include profanity, or which is not supported by an adequate safety or security

justification, and grant him any other relief that is appropriate. [Id. at 1, 3].

He claims that the Defendant will not be burdened if he must refrain from

punishing inmates for using profanity pursuant to the SOP. [Id. at 2-3].

Preliminary injunctive relief 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.

Id. at 20. The Plaintiff has not established any of the elements that would

warrant preliminary injunctive relief. Therefore, this Motion is denied.

IV. CONCLUSION

The Complaint passes initial review against Defendant Huneycutt as

discussed in this Order, and the claims against “Facility Management” are

dismissed with prejudice.3 The Plaintiff’s Motion for Preliminary Injunction is

denied and the Motion for Case Status update is denied as moot.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint has passed initial review against Defendant

Huneycutt on the Plaintiff’s § 1983 claims, and the Court exercises

3 The Court will also allow Plaintiff’s claims under Indiana and North Carolina law based

on the same conduct to pass initial review at this early stage of the proceeding. See 28

U.S.C. § 1367.

supplemental jurisdiction over the related claims under Indiana and

North Carolina law.

2. The claims against “Facility Management” are DISMISSED WITH

PREJUDICE.

3. ITIS FURTHER ORDERED that the Clerk of Court shall commence

the procedure for waiver of service as set forth in Local Civil Rule

4.3 for Defendant Huneycutt, who is alleged to be a current or

former employee of the North Carolina Department of Public Safety.

The Clerk is respectfully instructed to mail the Plaintiff an Opt-In/Opt-

Out form pursuant to Standing Order 3:19-mc-00060-FDW.

IT IS SO ORDERED.

Signed: January 20, 2023

Se ee

Chief United States District Judge AS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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