Patel v. Moron, 5:10–CT–3121–FL.

• Decision Date: 25 September 2012
• Docket Number: No. 5:10–CT–3121–FL.,5:10–CT–3121–FL.
• Citation: 897 F.Supp.2d 389
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Kamal PATEL, Plaintiff, v. Ms. MORON; Hee Haw Tucker–Hill; Mr. Barrett; Mr. Elwood; Shorty Brawner; Candace Gregory; Dr. Mercado; Art Beeler; John Doe Pharmacist; Lynnell Cox; Jeff Tilley; Harley Lappin; Mr. Stancil; The Geo Group, Inc., Jonathan Miner; David Farmer; George Snyder; Chaplain Blevins; Ms. Adcocks; and Larabee, Defendants.

897 F.Supp.2d 389

Kamal PATEL, Plaintiff,

v.Ms. MORON; Hee Haw Tucker–Hill; Mr. Barrett; Mr. Elwood; Shorty Brawner; Candace Gregory; Dr. Mercado; Art Beeler; John Doe Pharmacist; Lynnell Cox; Jeff Tilley; Harley Lappin; Mr. Stancil; The Geo Group, Inc., Jonathan Miner; David Farmer; George Snyder; Chaplain Blevins; Ms. Adcocks; and Larabee, Defendants.

No. 5:10–CT–3121–FL.

United States District Court,

E.D. North Carolina,

Western Division.

Sept. 25, 2012.

Kamal Patel, Big Spring, TX, pro se.

Seth Morgan Wood, U.S. Attorney's Office, Raleigh, NC, for Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on the motion to dismiss (DE # 32) pursuant to Federal Rule of Civil Procedure 12(b)(6),¹ the motion to stay the initial order regarding planning and scheduling (DE # 34), and the motion for a protective order (DE # 52) filed by defendants Ms. Adcocks (“Adcocks”), Mr. Barrett (“Barrett”), Art Beeler (“Beeler”), Shorty Brawner (“Brawner”), Lynnell Cox (“Cox”), Candace Gregory (“Gregory”), Harley Lappin (“Lappin”), Dr. Mercado (“Mercado”), Ms. Moron (“Moron”), Jeff Tilley (“Tilley”), and Hee Haw Tucker–Hill (“Tucker–Hill”) (collectively “defendants”). Also before the court are plaintiff's “motion to require prison to treat mail from this court marked as ‘legal mail’ as legal mail,” (DE # 31), motion for reconsideration (DE # 37), “motion requesting that service of process be made on defendants Elwood and Stancil and for an extension of time to effect service on these defendants and the John Doe Defendant” (DE # 39), motion for a continuance to permit discovery (DE # 41), and motion to strike portions of defendants' motion to dismiss (DE # 44). Plaintiff responded to defendants' motion for summary judgment, but did not respond to their remaining motions. Defendants did not respond to plaintiff's motions. In this posture, the matters are ripe for adjudication. For the following reasons, the court rules as follows.

STATEMENT OF THE CASE

On July 6, 2010, plaintiff filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). On April 4, 2011, Adcocks, Barrett, Beeler, Brawner, Cox, Gregory, Lappin, Mercado, Moron, Tilley, and Tucker–Hill filed a motion to dismiss pursuant to Rule 12(b)(6). Plaintiff then filed a motion to amend his complaint. On May 26, 2011, the court entered an order granting plaintiff's motion to amend, directing plaintiff to file his amended complaint, and denying as moot defendants' motion to dismiss.

On June 10, 2011, plaintiff filed his amended complaint. Plaintiff's amended complaint seeks both monetary damages and injunctive relief. The court subsequently conducted a review of plaintiff's amended complaint pursuant to 28 U.S.C. § 1915. Plaintiff's original complaint arose out of his incarceration at the Federal Correctional Center in Butner, North Carolina. Plaintiff's amended complaint sought to allege Bivens claims against Moron, Tucker–Hill, Barrett, Brawner, Gregory, Mercado, Beeler, Adcocks, Cox, Tilley, and Lappin, as well as defendants Official Elwood (“Elwood”), John Doe Pharmacist (“Pharmacist”), and Contract Compliance Official Stancil (“Stancil”). Plaintiff's amended complaint also sought to add new claims arising out of his incarceration at Rivers Correctional Institution (“Rivers”) against new defendants the GEO Group, Inc. (“GEO Group”), Jonathan Miner (“Miner”), George Snyder (“Snyder”), David Farmer (“Farmer”), Chaplain Blevins (“Blevins”), and Dr. Larabee (“Larabee”).

The court severed all of plaintiff's claims arising out of events that occurred at Rivers against GEO Group, Miner, Snyder, Farmer, Blevins, and Larabee. The court also dismissed as frivolous plaintiff's claims regarding his legal mail and mail to government agencies.² Finally, the court dismissed as frivolous plaintiff's claim of negligent deprivation of property and his claim pursuant to the Vienna Convention. After the court's frivolity review, plaintiff's following claims remain: (1) deliberate indifference to his medical needs in violation of the Eighth Amendment to the United States Constitution; (2) violation of the Eighth Amendment/Due Process Clause of the Fifth Amendment to the United States Constitution arising out of his solitary confinement; (3) retaliation in violation of the First Amendment to the United States Constitution; (4) enactment of prison policies by Lappin that violated his constitutional rights; (5) violation of 42 U.S.C. § 1997d; (6) violation of Fifth Amendment by Tilley in the course of his disciplinary hearing; and (7) denial of access to the BOP's grievance process. Plaintiff subsequently filed a motion to require prison officials to treat mail from this court as legal mail.

On November 16, 2011, defendants filed a motion to stay the court's scheduling order and a motion for summary judgment, arguing that plaintiff's claim should be dismissed because he failed to exhaust his administrative remedies and because plaintiff failed to state a claim upon which relief may be granted. Alternatively, defendants assert the defense of qualified immunity. Plaintiff then filed a motion for reconsideration of the court's October 20, 2011 order, a motion requesting that service of process be made on defendants Elwood and Stancil, a motion for a continuance to complete discovery, a motion to strike, and a response to defendants' motion for summary judgment. Defendants then filed a reply as well as a motion for a protective order.

DISCUSSION

A. Motion to Treat Legal Mail as Legal Mail

Plaintiff requests that this court order prison officials at the Correctional Institution in Big Spring, Texas ³ (“Big Spring”) to treat mail marked “Special Mail Open in the Inmate's Presence” as legal mail. Plaintiff appears to request injunctive relief. The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same. See e.g., U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n. 1 (4th Cir.2006). Temporary restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which provides that a temporary restraining order shall not issue in the absence of “specific facts [which] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party may be heard in opposition.” Fed.R.Civ.P 65(b)(1). The United States Supreme Court has stated that the movant must establish the following to obtain a temporary restraining order or a preliminary injunction: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 345 (4th Cir.2009), vacated on other grounds,559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010).

Here, plaintiff has not demonstrated that he is likely to suffer from irreparable harm because he has not alleged how the mail practices in Big Spring have prejudiced this action. Nor has plaintiff demonstrated that he is likely to succeed on the merits. Finally, plaintiff has not demonstrated that his request for a temporary restraining order is in the public interest or that the balance of equities tips in his favor. Additionally, to the extent plaintiff seeks to challenge the legal mail practices in Big Spring, he must do so in the United States District Court for the Eastern District of Texas. Accordingly, plaintiff's motion for a temporary restraining order is DENIED.

B. Motion for Reconsideration

On October 20, 2011, the court entered an order severing plaintiff's claims against defendants GEO Group, Miner, Snyder, Farmer, Blevins, and Larabee from this action pursuant to Federal Rules of Civil Procedure and 18(a), 20(a), and 21. Plaintiff now requests that the court direct the Clerk of Court to open a new action for the severed parties to prevent any issue with the statute of limitations. Federal Rule of Civil Procedure 21 allows a court to “sever any claim against a party.” Robinson v. Johnson, No. 3:07CV449, 2009 WL 874530, at *2 (E.D.Va. Mar. 26, 2009) (“Where, as here, statute of limitations concerns arise, courts should sever rather than simply dismiss the misjoined claims [by dropping defendants].”) To accomplish the severance, the court allows plaintiff the opportunity to file a new complaint for his severed claims. See, e.g., Burgess v. Williams, No. 1:11CV316, 2011 WL 5290155, at *11 (M.D.N.C. Nov. 2, 2011). Plaintiff's new complaint must comply with Federal Rules of Civil Procedure 8 and 20. Id. Further, plaintiff must identify his new complaint with the words NEW COMPLAINT FOR SEVERED CLAIM IN 5:10–CT–3121–FL. Finally, plaintiff must pay the three hundred fifty dollar ($350.00) filing fee or file an application to proceed with his claim in forma pauperis for his new action. Id. To the extent plaintiff requests reconsideration of the court's prior order, his request is DENIED. However, the court ALLOWS plaintiff the opportunity to file a complaint for his severed claims.

C. Motion to Stay/Motion for a Protective Order

Defendants move for a protective order and to stay the issuance of a case management order until after the court rules upon their dispositive motion. Defendants have raised the defense of qualified immunity in this case. The defense of qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also, Lescs v. Martinsburg Police Dep't, 138 Fed.Appx. 562, 564 (4th Cir.2005) (per curiam) (holding that the district court was required to rule...