Bumgardner-Lockamy v. Logan

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00061-MR

ZACHARY BUMGARDNER- )

LOCKAMY,1 )

)

Plaintiff, )

)

vs. )

)

M. LOGAN, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Complaint [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 8].

I. BACKGROUND

The pro se incarcerated Plaintiff filed this action pursuant to 42 U.S.C.

§ 1983 addressing incidents that allegedly occurred at the Rutherford County

Jail (RCJ) where he still resides. He names as Defendants M. Logan, a

correctional sergeant at RCJ, and FNU Smith, a correctional corporal at RCJ.

1 According to the North Carolina Department of Adult Corrections (NCDAC) website, the

Plaintiff’s name is Zachary Brandon Bumgardner. See https://webapps.doc.state.nc.us/

opi/viewoffender.do?method=view&offenderID=1565545&searchLastName=bumgardne

r&searchFirstName=zachary&searchDOBRange=0&listurl=pagelistoffendersearchresult

s&listpage=1 (last accessed April 20, 2023); Fed. R. Evid. 201.

He asserts First Amendment claims “based on the right to read and denial of

access to the courts.” [Doc. 1 at 3]. He alleges as follows:

I got released from Roanoke River Correctional on

02/17/23 & released to the custody of Rutherford County Jail, for

a period of 120 days. I got to the jail at approximately 8:45 PM &

there was no one in Booking except me & another guy. Sergeant

M. Logan had 2 hours to go through my property which she had

ample time to do so. She waited until 10:30 PM to book me &

send me back to the jail & said ‘I will get your property to you

tonight.’ Later on, about 2:00 AM on 02/18/23, Ofc. Logan

brought me my radio and Holy Quiran & said ‘Sgt. Logan said

you can’t have anything else.’ I stated ‘I need my legal mail for

a pending proceeding in court because I have a deadline to

make.’ Ofc. Logan stated ‘oh well.’ On 02/22/23 I exhausted my

grievance & they ignored me about legal papers & just gave me

my law books.

[Doc. 1 at 5] (errors uncorrected).

For injuries, the Plaintiff states “[n]one.” [Id.]. He seeks punitive

damages for the “principal [sic]” of the alleged First Amendment violations.

[Id.].

II. STANDARD OF REVIEW

Because the 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. 28 U.S.C. § 1915A.

In its frivolity review, this 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).

The Plaintiff fails to make any allegations whatsoever about Defendant

Smith. The claims against Smith thus fail to satisfy the most basic pleading

requirements. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain

statement of the claim showing that the pleader is entitled to relief”); Simpson

v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations,

unsupported by specific allegations of material fact are not sufficient);

Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader

must allege facts, directly or indirectly, that support each element of the

claim). Accordingly, the claims against Defendant Smith are dismissed.

The First Amendment states that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech….” U.S. Const. Amend I. The

First Amendment applies to the states through the Fourteenth Amendment.

See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). “Imprisonment does not

automatically deprive a prisoner of certain important constitutional

protections, including those of the First Amendment.” Beard v. Banks, 548

U.S. 521, 528-29 (2006) (citing Turner v. Safley, 482 U.S. 78, 93 (1987),

O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). However, the

Constitution sometimes permits greater restriction of such rights in a prison

than it would allow elsewhere. See, e.g., Turner, 482 U.S. at 84-85. Courts

owe “substantial deference to the professional judgment of prison

administrators.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Prison

regulations are permissible if they are “‘reasonably related’ to legitimate

penological interests” and are not an “‘exaggerated response’” to such

objectives. Turner, 482 U.S. at 87.

Here, the Plaintiff’s vague and conclusory claim that his “right to read”

was violated fails to plausibly allege a violation of his First Amendment rights.

See Fed. R. Civ. P. 8(a)(2); Simpson, 900 F.2d at 35; Dickson, 309 F.3d at

201-02. Accordingly, this claim is dismissed.

The Supreme Court stated in Bounds v. Smith, 430 U.S. 817 (1977),

that prisoners must have meaningful access to the courts. 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

challenging their conviction or conditions of confinement. 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).

Here, the Plaintiff claims that Defendant Logan confiscated some “legal

papers” that he needed for a deadline in an unspecified court proceeding,

and that he suffered no injury as a result. [Doc. 1 at 5]. The Plaintiff has

failed to plausibly allege that Defendant Logan’s actions caused actual injury

in a nonfrivolous action challenging his sentence or conditions of

confinement. Accordingly, this claim is also dismissed.

IV. CONCLUSION

In sum, the Plaintiff has failed to state a claim against any Defendant

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), and the Complaint is dismissed

without prejudice.

The Court will allow Plaintiff thirty (30) days to amend his Complaint, if

he so chooses, to properly state a claim upon which relief can be granted, in

accordance with the terms of this Order. Any amended complaint will be

subject to all timeliness and procedural requirements and will supersede the

Complaint. Piecemeal amendment will not be permitted. Should Plaintiff fail

to timely amend his Complaint in accordance with this Order, the Court will

dismiss this action without further notice.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint [Doc. 1] is DISMISSED WITHOUT PREJUDICE

as frivolous and for failure to state a claim upon which relief can

be granted.

2. The Plaintiff shall have thirty (30) days in which to amend his

Complaint in accordance with the terms of this Order. If Plaintiff

fails to so amend his Complaint, the matter will be dismissed

without further notice.

The Clerk is respectfully instructed to mail the Plaintiff two? blank §

1983 complaint forms and a copy of this Order.

IT IS SO ORDERED.

Signed: April 24, 2023

Se ee

Chief United States District Judge AS

1 Plaintiff requests a blank § 1983 complaint form for “another lawsuit.” [See Doc. 1-