LaKemper v. Honeycutt et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:22-cv-000189-MR
COBEY LAKEMPER, )
)
Plaintiff, )
)
vs. ) ORDER
)
FNU HONEYCUTT, et al., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1], filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)
and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 9].
I. BACKGROUND
Pro se Plaintiff Cobey LaKemper (“Plaintiff”) is a prisoner of the State
of North Carolina currently incarcerated at Alexander Correctional Institution
(“Alexander”) in Taylorsville, North Carolina. On December 15, 2022,
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against the following
Defendants, in their individual and official capacities: (1) FNU Honeycutt,
Warden of Alexander; (2) FNU Young, Mailroom Attendant at Alexander; (3)
Russell Chester, “FIO” Captain at Alexander; (4) Chris M. Biecker, Unit
Manager, Green Unit, at Alexander; (5) William N. Farrish, Assistant Unit
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Manager, Green Unit, at Alexander; and (6) John Doe, North Carolina
Department of Public Safety (NCDPS)1 Review Committee, Chairperson.
[Doc. 1 at 2-4].
Plaintiff alleges, in pertinent part, as follows. In 2021, the NCDAC
eliminated incoming physical mail and contracted with TextBehind, a for-
profit mail processing company. Simultaneously, the NCDAC introduced
GTL tablets to many facilities, which include a text messaging application
through which prisoners and free citizens can correspond electronically for a
per-transaction cost to both parties. This system has become “a primary
communication medium.” [Id. at 10].
In June 2022, Defendants Young and Chester improperly rejected six
books ordered by Plaintiff through Amazon, claiming that the books had “an
unknown odor and appearing to have been wet.” Defendants fabricated the
grounds for rejection out of retaliation for Plaintiff’s previous lawsuit and to
deprive Plaintiff of his First Amendment right to receive reading materials
through the mail. [Doc. 1 at 6-7, 14]. Defendant Honeycutt endorsed these
unlawful rejections, having processed the documents notifying Plaintiff of the
rejections. [Id. at 8]. Plaintiff appealed the rejections, which were upheld by
1 The NCDPS has recently been renamed the North Carolina Department of Adult
Corrections (NCDAC). The Court will hereinafter refer to the NCDPS by its new name.
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Defendant John Doe. Defendant Doe maintains a practice of “‘rubber-
stamping’ the erroneous and clearly fabricated rejections,” thereby
“perpetuating the unlawful actions of the facility Defendants” and depriving
Plaintiff of his Fourteenth Amendment due process rights. [Id. at 9].
On September 11, 2022, Defendant Biecker and Farrish improperly
rejected an electronic text message from Plaintiff to one of Plaintiff’s
accepted contacts, J. LaKemper “for the sole purpose of suppressing
Plaintiff’s speech and not to advance any valid penological interest.” [Doc.
1 at 10 (emphasis in original)]. Although the message was “disparaging” and
named Defendant Chester by name, the message was not threatening and
“did not include cuss words or threats.” [Id.]. On September 30, 2022,
Plaintiff filed a grievance against Defendants Biecker and Farrish for this
improper censorship after they refused to reply to an Inmate Request Form
that was submitted pursuant to informal grievance procedures. Contrary to
policy, Defendant Farrish processed the grievance against himself and
completed the Step One – Unit Response. After Plaintiff appealed to the
next step, between October 23 and November 7, 2022, Defendant Biecker
and Farrish effectively censored 13 of Plaintiff’s text messages. Defendants
Biecker and Farrish also directed the interception of a grievance submitted
by Plaintiff against them on October 31, 2022, in which Plaintiff sought to
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grieve retaliatory conduct following Plaintiff’s September 30, 2022 grievance.
[Id. at 14-15].
After “multiple methods of extraordinary complaint,” Plaintiff’s
messages were released en mass on November 14, 2022. On November
16, 2022, Defendants Biecker and Farrish resumed their censorship of
Plaintiff’s incoming and outgoing electronic correspondence. Defendants
Biecker deliberately suppressed Plaintiff’s freedom of speech in retaliation
for Plaintiff’s grievances against them. [Id. at 11-13]. Defendant Honeycutt
designated staff at Alexander to “review and approve electronic
correspondence on the tablets.” Defendant Honeycutt was also aware of
and endorsed the censorship because “a grievance filed and exhausted by
Plaintiff was appealed to ‘Step Two’ and received an ‘Institutional Response’
(superintendent-level response).” [Id. at 13]. Thus, Defendant Honeycutt
denied relief “despite the existence of unresolved injury.” [Id.].
Plaintiff purports to state three claims based on this conduct that he
identifies as “Fabricated Books Rejections,” “Electronic Correspondence
Censorship,” and Retaliation.2 [Id. at 6-15]. Plaintiff claims “First and
Fourteenth Amendment injuries.” [Id. at 16]. Plaintiff seeks declaratory,
2 The Court will construe these claims under the First and Fourteenth Amendments, as
appropriate.
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injunctive, and monetary relief, including punitive damages and costs. [Id.].
II. STANDARD OF REVIEW
Because 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 the 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).
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III. DISCUSSION
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States
and must show that the deprivation of that right was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff’s claims implicate the First and Fourteenth Amendments.
A. Official Capacity Claims
“[A] suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office.” Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Because a state is
not a “person” under § 1983, state officials acting in their official capacities
cannot be sued for damages thereunder. Allen v. Cooper, No. 1:19-cv-794,
2019 WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, as noted
the Eleventh Amendment bars suits for monetary damages against the State
of North Carolina and its various agencies. See Ballenger v. Owens, 352
F.3d 842, 844-45 (4th Cir. 2003). Plaintiff’s official capacity claims, therefore,
do not survive initial review and will be dismissed.
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B. First Amendment
1. Retaliation
An inmate has a clearly established First Amendment right to be free
from retaliation for filing grievances. See Booker v. S.C. Dep’t of Corrs., 855
F.3d 533, 540 (4th Cir. 2017); Thompson v. Commonwealth of Va., 878 F.3d
89, 110 (4th Cir. 2017). Inmates also have a protected First Amendment
right to complain to prison officials about prison conditions and improper
treatment by prison employees that affect them. See Patton v. Kimble, 717
Fed. App’x 271, 272 (4th Cir. 2018).
To state a colorable First Amendment retaliation claim, a plaintiff must
allege that (1) he engaged in protected First Amendment activity, (2) the
defendant took some action that adversely affected his First Amendment
rights, and (3) there was a causal relationship between his protected activity
and the defendant’s conduct. Martin v. Duffy, 977 F.3d 294, 299 (4th Cir.
2020) (quotation marks and citation omitted). Retaliation claims brought by
prisoners, however, are treated with skepticism because every act of
discipline by a prison official is retaliatory in that it responds directly to
prisoner misconduct. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994).
Moreover, to establish liability under § 1983, a plaintiff must show that
the defendants “acted personally” to cause the alleged violation. See
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Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). As
such, doctrine of respondeat superior does not apply in actions brought
under § 1983. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Under Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), however, supervisory
liability may attach under § 1983 if a plaintiff can establish three elements:
(1) the supervisor had actual or constructive knowledge that his subordinate
was engaged in conduct that posed “a pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff; (2) the supervisor’s response
to that knowledge was so inadequate as to show “deliberate indifference to
or tacit authorization of the alleged offensive practices”; and (3) and
“affirmative causal link” between the supervisor’s inaction and the particular
constitutional injury suffered by the plaintiff. 13 F.3d at 799 (citations
omitted).
Taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, the Court finds that Plaintiff’s First Amendment
retaliation claims against Defendants Young, Chester, Biecker, and Farrish
are not clearly frivolous and survive initial review as to these Defendants in
their individual capacities.
Plaintiff, however, has failed to state any claim against Defendant
Honeycutt for retaliation. That is, Plaintiff alleges only that Defendant
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Honeycutt endorsed the book rejections by Defendants Young and Chester
because Honeycutt processed the documents notifying Plaintiff of the
rejections. While Defendant Honeycutt may have been aware of the
rejections by Young and Chester, Plaintiff does not allege that Defendant
Honeycutt was aware of their retaliatory motive or that there was any causal
connection between Plaintiff’s protected activity and any conduct by
Defendant Honeycutt. The Court, therefore, will dismiss Plaintiff’s retaliation
claim against Defendant Honeycutt.
2. Censorship
As a general matter, prisoners have the 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, prison officials may inspect an inmate’s outgoing
and incoming mail because such is reasonably related to legitimate
penological interests. See generally Wolff v. McDonnell, 418 U.S. 539, 575
(1974); Turner v. Safley, 482 U.S. 78, 89 (1987); see also Altizer v. Deeds,
191 F.3d 540, 547-48 (4th Cir. 1999) (opening and inspecting a prisoner’s
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outgoing mail is, “[w]ithout question,” reasonably related to legitimate
penological interests); Matherly v. Andrews, 859 F.3d 264, 281 (4th Cir.
2017) (a “necessary implication” of Altizer is that prison officials may open
and inspect a prisoner’s incoming mail).
Taking Plaintiff’s allegations as true and giving him the benefit of every
reasonable inference, the Court finds that Plaintiff’s First Amendment
censorship claims against Defendants Biecker, Farrish, and Honeycutt
survive initial review as not clearly frivolous.
C. Fourteenth Amendment
Plaintiff claims that Defendant Doe violated Plaintiff’s Fourteenth
Amendment due process rights because Doe upheld Defendants Young and
Chester’s book rejections on appeal. Plaintiff also alleges that Defendant
Doe has a practice of “rubber stamping” clearly fabricated rejections,
perpetuating and advancing the unlawful action of the other Defendants.
Plaintiff does not have a constitutional right of access to grievance
procedures. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he
Constitution creates no entitlement to grievance procedures or access to any
such procedure voluntarily established by a state.”) (citation omitted).
Moreover, because a state grievance procedure does not confer any
substantive constitutional right on prison inmates, prison officials’ failure to
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comply with the state’s grievance procedure is not actionable under § 1983.
Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), cert. denied, 488 U.S.
898, 109 S.Ct. 242 (1988).
As such, even if it were true that Defendant Doe rubber-stamps book
rejections, Plaintiff has failed to state a claim against Defendant Doe under
the Fourteenth Amendment. This claim and Defendant Doe, therefore, will
be dismissed.
IV. CONCLUSION
In sum, the Complaint survives initial review under 28 U.S.C. §§ 1915A
and 1915(e) as to Plaintiff’s First Amendment retaliation claims against
Defendants Young, Chester, Biecker, and Farrish and Plaintiff’s First
Amendment censorship claims against Defendants Biecker, Farrish, and
Honeycutt, all in their individual capacities only, in accordance with the terms
of this Order. Plaintiff’s remaining claims, including Plaintiff’s official capacity
claims, fail initial review and will be dismissed.
ORDER
IT IS, THEREFORE, ORDERED that all claims asserted in this matter
as to all Defendants are hereby DISMISSED for failure to state a claim,
except for Plaintiff’s First Amendment retaliation claims against Defendants
Young, Chester, Biecker, and Farrish and Plaintiff’s First Amendment
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censorship claims against Defendants Biecker, Farrish, and Honeycutt,
which are allowed to pass initial review.
IT IS FURTHER ORDERED that Plaintiff’s remaining claims, including
Plaintiff’s official capacity claims, are DISMISSED.
IT IS FURTHER ORDERED that Defendant John Doe is DISMISSED
as a Defendant in this matter.
IT IS 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
Defendants Honeycutt, Young, Chester, Biecker, and Farrish, who are
alleged to be current or former employees of NCDPS.
The Clerk is also instructed to mail Plaintiff an Opt-In/Opt-Out form
pursuant to Standing Order 3:19-mc-00060-FDW.
IT IS SO ORDERED.
Signed: February 8, 2023
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