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
Amended Complaint, [Doc. 17], 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].
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) Review Committee, Chairperson.
[Doc. 1 at 2-4]. The Complaint survived 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
Court’s initial review Order.1 Plaintiff’s remaining claims, including Plaintiff’s
official capacity claims, failed initial review and were dismissed. [Doc. 10 at
11-12].
Plaintiff moved for reconsideration of the Court’s initial review Order
pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. [Docs. 14,
16]. Plaintiff argued that the Court should have recognized a “stand-alone”
First Amendment right to receive publications by mail censorship claim and
erred in dismissing Plaintiff’s retaliation claim against Defendant Honeycutt
and Plaintiff’s Fourteenth Amendment claim against Defendant Doe. [Doc.
14 at The Court, however, advised Plaintiff that he may move to amend his
Complaint to recapture claims he believes were improperly dismissed. [Doc.
1 For the sake of economy, the Court herein incorporates its initial review Order. [See
Doc. 10].
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16 at 4]. Now before the Court is Plaintiff’s Amended Complaint. [Doc. 17].
In his Amended Complaint, Plaintiff largely restates his original
Complaint and adds allegations aimed at recapturing the dismissed claims.
As for the “stand-alone” censorship claim based on denial of the books by
Defendants Young, Chester, and Honeycutt, the Court finds that Plaintiff’s
claim is not clearly frivolous and survives initial review. As for Plaintiff’s First
Amendment retaliation claim against Defendant Honeycutt, Plaintiff’s
allegations remain insufficient to state a claim for relief. [See Doc. 17 at 5].
As for Plaintiff’s Fourteenth Amendment due process claim against
Defendant Doe, taking Plaintiff’s allegations as true and giving him the
benefit of every reasonable inference, the Court finds that his Fourteenth
Amendment due process claim against Defendant Doe survives initial review
as not clearly frivolous. Courts have held that due process requires the
following minimal safeguards for the withholding of a prisoner’s incoming
mail or publications: (1) appropriate notice, (2) a reasonable opportunity to
challenge the initial determination, and (3) an ultimate decision by a
disinterested party not privy to the initial censorship determination. See
Hopkins v. Collins, 548 F.2d 503, 504 (4th Cir. 1977) (citation omitted). Here,
while Plaintiff alleges that he received notice of the rejections, that he was
allowed to appeal the initial determination, and that a third party, Defendant
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Doe, provided the ultimate decision, Plaintiff’s allegations suggest that the
Defendant Doe’s “rubber-stamping [of] erroneous and clearly fabricated
rejections” did not afford Plaintiff a reasonable opportunity to challenge the
rejections.
Finally, Plaintiff seeks to recapture the dismissed official capacity
claims against all Defendants. He alleges that Defendants “are basing their
acts and omissions, however improper and flagrant, on overly broad and
unconstitutional NC DAC policies,” which “must be considered the driving
force behind the Defendants egregious conduct and resulting deprivation of
Plaintiff’s constitutional rights.” [Id. at 12-13 (emphasis in original)]. Plaintiff
throughout his Complaint, however, alleges that Defendants’ actions are
contrary to and manipulations and misapplications of governing NC DAC
policies. [See Doc. 17 at 2-5, 7-8, 10]. The Court will allow Plaintiff’s official
capacity claims to proceed at this early stage of the proceedings. The Court,
however, notes that Plaintiff’s allegations are internally contradictory and will
certainly be subject to scrutiny moving forward.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff’s First Amendment
retaliation claims against Defendants Young, Chester, Biecker, and Farrish;
Plaintiff’s First Amendment censorship claims against Defendants Young,
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Chester, Biecker, Farrish, and Honeycutt; Plaintiff’s Fourteenth Amendment
due process claim against Defendant John Doe; and Plaintiff’s official
capacity claims against these Defendants are allowed to pass initial review,
all in accordance with the terms of this Order and the Court’s original initial
review Order [Doc. 10].
IT IS FURTHER ORDERED that any remaining claims, including
Plaintiff’s First Amendment retaliation claim against Defendant Honeycutt,
are DISMISSED.
IT IS SO ORDERED. Signed: April 16, 2023
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