The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:19-cv-00224-MR
COREY DELON GREENE, )
)
Plaintiff, )
)
vs. ) ORDER
)
)
KENNETH LASSITER, et al., )
)
Defendants. )
___________________________ )
THIS MATTER is before the Court on the Plaintiff’s “Motion to
Reconsider Order to obtain copies of mail at New Hanover Correctional”
[Doc. 117] and Plaintiff’s (Fourth) Motion to Appoint Counsel [Doc. 118].
Pro se Plaintiff Corey Delon Greene (“Plaintiff”) is a prisoner of the
State of North Carolina, currently incarcerated at New Hanover Correctional
Center in Wilmington, North Carolina. On July 18, 2019, Plaintiff filed this
action pursuant to 42 U.S.C. § 1983 against Defendants Kenneth Lassiter,
Tim Moose, Todd Ishee, Sarah Cobb, Betty Brown, and Chris Rich claiming
his rights under the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, were
violated while he was incarcerated at Avery/Mitchell Correctional Institution
in Spruce Pine, North Carolina, because Defendants refused to recognize
the Nation of Gods and Earth (“NGE”) as a religion and classified NGE as a
Security Risk Group (SRG) for over 20 years. [Doc. 1]. The Court appointed
the North Carolina Prisoner Legal Service (NCPLS) to represent Plaintiff for
the purpose of conducting discovery. [Doc. 47 at 2]. The NCPLS accepted
this appointment and conducted discovery for the Plaintiff. [Docs. 51, 65].
On January 5, 2022, the Court granted summary judgment for
Defendants [Doc. 83] and the Fourth Circuit vacated the Court’s entry of
summary judgment and remanded for further proceedings. Greene v.
Lassiter, No. 22-6273, 2023 WL 8618519 (4th Cir. Dec. 13, 2023). On April
4, 2024, the Court ordered Defendants to file any supplements to their
summary judgment materials within 30 days and for Plaintiff to file a
response thereto within 30 days of service of Defendants’ materials. [Doc.
111].
Recently Plaintiff moved the Court to order Plaintiff’s correctional
facility to make copies for him. [Doc. 114]. As grounds, Plaintiff stated that
he is “accumulating documents” by mail from “friends, family, etc.” to
compose his summary judgment response, but the North Carolina
Department of Corrections only allows such mail to be viewed electronically.
[Id. at 2]. As such, Plaintiff “cannot access the documents to compose his
motion.” [Id.]. The Court denied Plaintiff’s motion and explained to Plaintiff
that it has “no authority to require Plaintiff’s correctional facility to make
copies for him” and also noted that “it seems unlikely that documents
provided by Plaintiff’s family and friends would be appropriate evidence on
summary judgment in any event.” [Doc. 116 at 2-3].
Plaintiff now asks the Court to reconsider its order denying Plaintiff’s
motion to obtain copies of his mail at New Hanover Correctional Center.
[Doc. 117]. As grounds, Plaintiff contends that “[t]he evidences which are
documentary evidence are admissible” and “that he cannot properly
represent himself without access to the material to construct the theory of his
case.” [Id. at 1]. Plaintiff queries, “what can [he] do when it comes to the
signature of the declarant? Forge it?” [Id.]. Thus, it appears that Plaintiff
seeks to obtain affidavits from non-prisoners to submit in response to
Defendants’ supplemental summary judgment materials. [See id.].
The Court will deny Plaintiff’s motion. While the Court is not
unsympathetic to the logistical difficulties Plaintiff encounters as an
incarcerated litigant, the Court remains without authority to order Plaintiff’s
correctional facility to modify its mail procedures to accommodate Plaintiff’s
litigation needs. The Court will, nonetheless, direct that a copy of this Order
be mailed to the Warden at Plaintiff’s correctional facility so that they may
take any appropriate action.
Plaintiff also moves for appointment of counsel for the fourth time in
this action. [Doc. 118; see Docs. 3, 82, 108]. As grounds, Plaintiff argues
that his circumstances are exceptional because the Fourth Circuit has
remanded his case for further proceedings and he “is highly likely to win on
these issues.” [Id. at 1]. Plaintiff further argues that, “[i]f it is apparent that a
pro se litigant has a colorable claim but lacks the capacity to present it the
district court should appoint counsel,” [id. at 2 (citing Branch v. Cole, 686
F.2d 264 (5th Cir. 1982))], and that he needs an attorney to help him obtain
the documents he needs for his summary judgment response, id.
The Court will deny Plaintiff’s fourth motion to appoint counsel. The
Court fails to see how affidavits provided by Plaintiff’s friends and family
members are necessary to create a genuine issue of material fact for trial in
this matter. The Fourth Circuit remanded this case because “there may be
at least an open factual question about whether NGE qualifies as a religion
for RLUIPA and First Amendment purposes.” [Doc. 99]. The testimony of
Plaintiff’s friends and family members would appear to have no bearing on
this issue, nor would it create an issue of fact as to whether Plaintiff sincerely
holds any particular religious belief more that Plaintiff’s own testimony, which
he is free to submit, or any other issue material to Plaintiff's claims. [See
Doc. 11-14]. Moreover, Plaintiff's unsupported assertion that he is “highly
likely to win” this action does not change this calculus. Plaintiff's
circumstances remain unexceptional. See Miller v. Simmons, 814 F.2d 962,
966 (4th Cir. 1987). As Plaintiff has previously been advised, should this
matter proceed to trial, the Court may appoint counsel for Plaintiff through
the Prisoner Assistance Program (PAP) at that time. [Misc. Case No. 3:19-
mc-00013-MR, Docs. 2, 5].
ORDER
IT IS, THEREFORE, ORDERED that Plaintiffs Motions [Docs. 117,
118] are DENIED.
The Clerk is respectfully instructed to remove the reference to Docket
No. 115 in the docket entry for Docket No. 117 and to send a copy of this
Order by certified mail to the Warden at Plaintiffs current correctional facility.
IT IS SO ORDERED.
Signed: May 1, 2024
Ct ey
Chief United States District Judge AS