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

Amended Complaint. [Doc. 10]. The Plaintiff is proceeding in forma

pauperis. [Doc. 8].

I. BACKGROUND

The pro se incarcerated Plaintiff filed this civil rights action pursuant to

42 U.S.C. § 1983 addressing incidents that allegedly occurred at the

Rutherford County Jail (“RCJ”), where he is presently incarcerated. The

Complaint was dismissed on initial review, and the Plaintiff was granted the

1 According to the North Carolina Department of Adult Corrections’ website, the Plaintiff’s

name is Zachary Brandon Bumgardner. See https://webapps.doc.state.nc.us/opi/view

offender.do?method=view&offenderID=1565545&searchLastName=bumgardner&searc

hFirstName=zachary&searchDOBRange=0&listurl=pagelistoffendersearchresults&listpa

ge=1 (last accessed Aug. 2, 2023); Fed. R. Evid. 201.

opportunity to amend. [Doc. 9]. The Amended Complaint is now before the

Court for initial review. [Doc. 10].

The Plaintiff again names as Defendants M. Logan, a correctional

sergeant, and FNU Smith, a correctional corporal. [Id. at 2]. He reasserts

his claim for denial of access to the courts, and he also asserts a new First

Amendment claim for “communication with attorney(s).”2 [Id. at 3]. For

injury, he claims that “[he] was impeded from getting [his] attorneys

information & [his] legal papers by filing that 20 day deadline for a civil matter

in District Court.” [Id. at 5]. He seeks injunctive relief, and nominal and

punitive damages. [Id.].

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Amended Complaint to determine whether it is subject to

dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see

28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions

seeking redress from governmental entities, officers, or employees).

2 The Amended Complaint is also liberally construed as raising a claim that the Plaintiff’s

grievances were denied or ignored.

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

The Plaintiff reasserts his claim that the Defendants deprived him of

access to the courts. The Plaintiff claims that he had “a deadline on a packet”

that he had to fill out for his lawyer for “a legal proceeding,” and that he had

“a legal paper that the State Bureau of Investigation sent [to him]” regarding

his foster brother’s “case about his release.” [Doc. 10 at 13]. These

allegations are too vague and conclusory to plausibly allege that the Plaintiff3

3 To the extent that the Plaintiff is attempting to assert a claim on behalf of his foster

brother, he is not qualified to do so. See generally Myers v. Loudoun Cnty. Pub. Schls.,

418 F.3d 395, 400 (4th Cir. 2005) (“An individual unquestionably has the right to litigate

his own claims in federal court.... The right to litigate for oneself, however, does not create

a coordinate right to litigate for others”); Hummer v. Dalton, 657 F.2d 621, 625 (4th Cir.

1981) (prisoner’s suit is “confined to redress for violations of his own personal rights and

not one by him as knight-errant for all prisoners”); Oxendine v. Williams, 509 F.2d 1405,

suffered any actual injury. [See Doc. 9 at 5-6]. Accordingly, this claim is

dismissed for the reasons discussed in the Order on initial review of the

Complaint. [Id.].

The Plaintiff further claims that the Defendants violated the First

Amendment when they failed to return to him a piece of “legal mail” following

a search of his property. [Doc. 10 at 12-13]. The Plaintiff alleges that this

legal mail contained his attorney’s “information” and, without it, the Plaintiff

was unable to “consult with an attorney or legal documents of an attorney….”

[Id. at 12].

As a general matter, prisoners have the First Amendment right to both

send and receive mail. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989);

Pell v. Procunier, 417 U.S. 817 (1974). Restrictions on this right are valid if

they are reasonably related to legitimate penological interests. Turner v.

Safley, 482 U.S. 78, 89 (1987); see Haze v. Harrison, 961 F.3d 654, 658 (4th

Cir. 2020) (noting that Turner applies to both convicted prisoners and pretrial

detainees). For instance, a prisoner’s First Amendment interest in

corresponding does not preclude prison officials from examining mail to

ensure that it does not contain contraband. Wolff v. McDonnell, 418 U.S.

1407 (4th Cir. 1975) (“[I]t is plain error to permit [an] imprisoned litigant who is unassisted

by counsel to represent his fellow inmates in a class action.”).

539, 576 (1974). “[L]egal mail is widely recognized to be privileged and

confidential — even in the context of prisons — which suggests that an

incarcerated person’s expectation of privacy in his legal mail is one ‘that

society is prepared to consider reasonable.’” Haze v. Harrison, 961 F.3d

654, 660 (4th Cir. 2020) (quoting United States v. Catellanos, 716 F.3d 828,

832 (4th Cir. 2013)); see King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016)

(“nothing in Hudson4 indicates the Supreme court intended to abrogate a

prisoner’s expectation of privacy beyond his cell); Turner, 482 U.S. at 89

(prison restrictions impinging on an inmate’s constitutional rights are valid if

they are reasonably related to legitimate penological interests).

Here, the Plaintiff’s claim that a piece of legal mail was not returned to

him on a single occasion does not rise to the level of a constitutional violation.

See Buie v. Jones, 717 F.2d 925, 926 (4th Cir. 1983) (stating that “a few

isolated instances of plaintiff’s mail being opened out of his presence” that

were “either accidental or the result of unauthorized subordinate conduct ...

were not of constitutional magnitude”); Davis v. Goord, 320 F.3d 346, 351

(2d Cir. 2003) (“an isolated incident of mail tampering is usually insufficient

to establish a constitutional violation.”). His conclusory claim that the legal

4 Hudson v. Palmer, 468 U.S. 517 (1984) (holding that an inmate has no reasonable

expectation of privacy, and thus no Fourth Amendment protection, in his prison cell).

mail had his attorney’s “information” also fails to plausibly allege a First

Amendment violation. [See Doc. 9 at 5-6 (discussing denial of access to the

courts)]; United States v. Lentz, 419 F.Supp.2d 820, 835 (E.D. Va. 2005)

(“prisoners are not entitled to any particular method of access to the courts

or to their lawyers”); see, e.g., Saunders v. Dickerson, No. 1:07-cv-1094,

2008 WL 2543428, at *4 (E.D. Va. June 25, 2008) (dismissing plaintiff’s claim

regarding denial of telephone access where there was no suggestion that

this restriction rendered the plaintiff unable to contact his family or attorney

by alternate means, or that any denial of access resulted in unfair prejudice

to the plaintiff), aff’d, 313 F. App’x 665 (4th Cir. 2009). Therefore, the claim

against the Defendants for failing to return the Plaintiff’s legal mail will be

dismissed.

To the extent that the Plaintiff claims that the Defendants ignored or

denied his grievances5 [Doc. 10 at 13], this fails to state a claim because a

policy violation does not rise to the level of a § 1983 claim absent a plausible

5 It is unclear that this claim is directed at the Defendants. [See Doc. 10 at 13 (claiming

that “they” ignored the Plaintiff’s complaints about his legal papers “& just gave [him his]

law books.”)]. To the extent that this claim is directed to individuals other than the

Defendants, it cannot proceed. Fed. R. Civ. P. 10(a) (“The title of the complaint must

name all the parties[.]”); Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“[T]o make

someone a party the plaintiff must specify him in the caption and arrange for service of

process.”); Perez v. Humphries, No. 3:18-cv-107-GCM, 2018 WL 4705560, at *1

(W.D.N.C. Oct. 1, 2018) (“A plaintiff’s failure to name a defendant in the caption of a

Complaint renders any action against the purported defendant a legal nullity.”).

allegation of an underlying constitutional violation. See generally Jackson v.

Sampson, 536 F. App’x 356, 357 (4th Cir. 2013) (unpublished) (holding that

“prison officials’ failure to follow internal prison policies are not actionable

under § 1983 unless the alleged breach of policy rises to the level of

constitutional violation”).

The Court will dismiss this action with prejudice because the Plaintiff

has already amended his Complaint once and he has failed to state a claim

for relief. See Green v. Wells Fargo Bank, N.A., 790 F. App’x 535, 536 (4th

Cir. 2020).

IV. CONCLUSION

For the reasons stated herein, the Plaintiff’s Amended Complaint is

dismissed with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that the Plaintiff’s Amended

Complaint [Doc. 10] is DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. § 1915(e)(2)(B)(i)-(ii).

The Clerk is respectfully instructed to close this case.

ITIS SO ORDERED, . aueust 21,2023

Chief United States District Judge "Alle