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