Opinion
1:24CV678
11-25-2024
VINCENT THEODORE RAMOS, Plaintiff, v. CPT WILLIAM FLINT, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, a detainee in the Moore County Detention Center, submitted a civil rights action pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis. The form of the Complaint is such that a serious flaw makes it impossible to further process the Complaint. The problem is:
I. Plaintiff's claims for relief are not clear. Plaintiff seeks to raise claims based on allegations that staff at the Moore County Detention Center are not following proper procedures for handling disciplinary write ups and that they are not providing proper due process for hearings and appeals of those infractions. However, there are three issues with these claims. One is that the Complaint alleges that staff are not properly following the handbook for the Detention Center. Claims based on failure to follow jail regulations do not arise under § 1983, which allows for claims based only on violations of federal law, not state or local rules and regulations. Second, the Plaintiff contends that he is being punished without due process. However, the only punishments he lists for his infractions are loss of commissary, visitation, and telephone privileges. These types of loss of privileges for a short period of time would not typically rise to the level of “punishment” under the United States Constitution so as to support a due process claim under § 1983. See Dye v. Alsbrook, Civ. Action No. 7:23cv00036, 2024 WL 1193566, at *3-4 (W.D. Va. Mar. 20, 2024) (unpublished) (citing cases). The Complaint does
not appear to allege that Plaintiff was kept in restricted or segregated housing, which could amount to punishment for pretrial detainees and, therefore, support a claim under § 1983. Dilworth v. Adams, 841 F.3d 246, 251-52 (4th Cir. 2016). Third, Plaintiff also appears to raise claims regarding the appeal process of his disciplinary infractions, but there is no federal right to any appeal of disciplinary infractions. Therefore, the basis for any claim regarding the appeals is also unclear. Dye, 2024 WL 1193566, at *4. Plaintiff needs to make the basis of his claims clear and he will have an opportunity to refile his Complaint to make his claims clearer before the Court engages in a substantive review of the claims in the Complaint.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defect of the present Complaint.
In addition, the Court also notes that Plaintiff seeks to proceed in this action in forma pauperis. When Plaintiff filed the action, he was in custody and used the prisoner application for proceeding in forma pauperis, based on deposits into his prison trust account. However, he subsequently filed a Notice of Change of Address providing a nonprison address, apparently reflecting his release from custody. From the information in the Application to Proceed In Forma Pauperis, it appears that following his release, Plaintiff likely has the ability to pay the $405.00 filing fee, but the Court needs a non-prisoner Application to Proceed In Forma Pauperis to make that determination. Therefore, if Plaintiff chooses to present a new Complaint on the proper § 1983 forms, he should either pay the filing fee or submit a non-prisoner Application to Proceed In Forma Pauperis.
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS THEREFORE ORDERED that In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to send Plaintiff § 1983 forms, instructions, a non-prisoner application to proceed In forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)).
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms, which corrects the defect cited above, accompanied by the $405.00 filing fee or a non-prisoner Application to Proceed In forma pauperis (Long Form).