IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No.___________

VICTOR L. MARTIN, #0549353

)

)

Plaintiff,

)

)

v.

)

)

ALVIN W. KELLER, SECRETARY OF )

NORTH CAROLINA DEPARTMENT )

OF CORRECTION; BOYD BENNETT, )

DIRECTOR OF NORTH CAROLINA )

DIVISION OF PRISONS; GERALD

)

BRANKER, ADMINISTRATOR,

)

CENTRAL PRISON; CAPTAIN

)

FREDERICK S. O’NEAL,

)

)

Defendants.

)

___________________________________ )

JURY TRIAL DEMANDED

COMPLAINT

Plaintiff Victor L. Martin (“Plaintiff” or “Mr. Martin”) brings the following

Complaint against Defendants Alvin W. Keller, Secretary of North Carolina Department

of Correction, Boyd Bennett, Director of North Carolina Division of Prisons, Gerald

Branker, Administrator of Central Prison, and Captain Frederick S. O’Neal, Internal

Affairs Officer at Central Prison (collectively, “Defendants”). Plaintiff’s Complaint

asserts claims of violation of his civil and constitutional rights under the First and

Fourteenth Amendments to the United States Constitution, and for conversion and gross

negligence under North Carolina law.

I. FACTUAL BACKGROUND

1. Plaintiff, who is currently incarcerated in the custody of the North

Carolina Department of Correction (“DOC”), is a respected, published author who has

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written a series of books in an emerging literary genre known as “urban fiction.” Urban fiction is a genre of literary expression that is receiving increasing critical attention and acclaim. Authors within the urban fiction genre are often younger African-Americans who describe urban settings in ways that readers – many of whom have never read books before – can identify with and understand. Urban fiction writers use “the language of the streets, with plenty of slang and four-letter words.”
2. Works of urban fiction have become “especially popular among reluctant readers, notably including young, black men; and the language, cadences, subject matter and aesthetic evoke comparisons to hip-hop music.”1 According to some literary critics, “[t]he material may be a little crude or harsh sometimes, but many find it to be true to the experience that it depicts . . . . What is significant is that a new audience for books has evolved.”2 Indeed, as recently reported in The New York Times, public libraries around the country “are embracing urban fiction as an exciting, if sometimes controversial, way to draw new people into reading rooms, spread literacy and reflect and explore the interests and concerns of the public they serve.”3
3. Many readers and reviewers have recognized Plaintiff as an important voice within urban fiction. For instance, one reviewer stated, “I loved [Plaintiff’s book and] I couldn’t put it down. Can’t wait to read the second one!!” Other reviewers have described Plaintiff’s novels as “engaging” and “based on the world today.” One reader stated, “I love the book, it made me think about my life and what I really wanted it to
1 See Powerpoint presentation on Urban Fiction, available at
http://www.teenlibrarian.com/streetlit/urban%20fiction%20powerpoint.ppt.
2 Definition of “Urban Fiction,” available at www.blackbooksdirect.com/urbanfiction.html. 3 Anne Barnard, From the Streets to the Libraries, N.Y. TIMES, Oct. 22, 2008, available at http://www.nytimes.com/2008/10/23/nyregion/23fiction.html?_r=1.
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be.”4 This lawsuit arises from Defendants’ efforts to silence Plaintiff’s voice. Upon information and belief, those efforts were based at least in part on Defendants’ disdain for the content of Plaintiff’s writings.
4. Plaintiff brings this lawsuit against officials of North Carolina DOC due to their violations of his rights, including his rights under the First Amendment to the United States Constitution, by, among other things, arbitrarily and capriciously disciplining Plaintiff for acts related to writing urban fiction during his incarceration. In addition, Defendants, upon information and belief, seized and destroyed a 310-page, handwritten urban fiction manuscript (the “Manuscript”) that Plaintiff had spent countless hours working on while housed at Central Prison in Raleigh. Defendants did so without providing Plaintiff with due process before the Manuscript was destroyed, and, upon information and belief, did so in retaliation for Plaintiff’s acts of literary expression, and because they did not condone the content of Plaintiff’s writings.
II. JURISDICTION AND VENUE
5. The Court has jurisdiction over the federal claims in this action pursuant to 28 U.S.C. § 1331, in that the claims arise under the Constitution of the United States; and by 28 U.S.C. § 1343. The matters in controversy arise under the Civil Rights Act, 42 U.S.C. § 1983 and 42 U.S.C. § 1981. This Court has supplemental jurisdiction over the state constitutional claims pursuant to 28 U.S.C. § 1367.
6. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b) because all Defendants are located within the Eastern District of North Carolina, and a substantial
4 For more reviews of Plaintiffs’ novels, please see http://www.amazon.com/review/product/0970247222/ref=cm_cr_dp_synop?%5Fencoding=UTF8&sortBy =bySubmissionDateDescending#R37E6RD7V7AA3Y.
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part of the events and omissions giving rise to Plaintiff’s claims occurred, and continue to occur, within the Eastern District of North Carolina.
III. PARTIES 7. Plaintiff Victor L. Martin is an individual citizen of the State of North Carolina. He is currently confined by DOC at Pasquotank Correctional Institution in Elizabeth City, North Carolina. Plaintiff has previously been an inmate at other DOC facilities, including Central Prison, as well as Lanesboro, Polk, and Warren Correctional Institutions. 8. Defendant Alvin W. Keller is Secretary of the North Carolina Department of Correction and is responsible for the operation and administration of all facilities within the North Carolina Department of Correction, including the management of DOC policies and procedures. Defendant Keller is sued in his official capacity only. 9. Defendant Boyd Bennett is Director of Prisons for the North Carolina Department of Correction, Division of Prisons, and is responsible for the operation and administration of all facilities within the DOC, including the management of DOC policies and procedures. Defendant Bennett is sued in his official capacity only. 10. Defendant Gerald Branker is Administrator at Central Prison in Raleigh, Wake County, North Carolina, and is responsible for the operation and administration of Central Prison, including disciplinary actions against prisoners and application of DOC policies and procedures to prisoner behavior. Prior to July 2007, Defendant Branker was Deputy Administrator at Central Prison. Defendant Branker is sued in his individual and official capacities.
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11. Defendant Captain Frederick S. O’Neal is an Internal Affairs officer at Central Prison in Raleigh, Wake County, North Carolina. At the time of some of the allegations set forth herein, Defendant O’Neal had the title of “Correctional Lieutenant.” Defendant O’Neal is sued in his individual and official capacities.
12. Plaintiff is informed, believes, and therefore alleges that the actions of Defendant O’Neal, as set forth herein, constituted the official policy and custom of the Defendants and were part of a pattern of conduct in violation of citizens’ rights.
13. In the alternative, Defendant O’Neal acted outside the scope of his agency, outside the pattern, practice, policy or custom of Defendants, and/or in an intentional, malicious or corrupt manner in his dealings with the Plaintiff; and, therefore, Defendant O’Neal is personally liable for the violation of Plaintiff’s rights.
IV. FACTUAL ALLEGATIONS Plaintiff’s Writing Activities at Polk, Lanesboro and Warren Correctional Institutions
14. Plaintiff began writing his first novel, “A Hood Legend,” before his incarceration at Craven County Jail in January 2000. Defendant continued to write after he was sent to prison in July of 2000.
15. In 2004, while Plaintiff was housed at Polk Correctional Institution, a well-regarded publishing company known as Triple Crown Publications offered Plaintiff a two-book publishing contract. Those two books, A Hood Legend and Menage’s Way, were published in April 2004 and November 2004, respectively.
16. In 2005, while Plaintiff was housed at Lanesboro Correctional Institution, Triple Crown Publications published Plaintiff’s third novel, For the Strength of You.
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17. In 2006, while Plaintiff was housed at Warren Correctional Institution, Plaintiff’s fourth novel, Unique’s Ending, was published by a publishing company called Vic Mar Publications, LLC, which had been incorporated by a friend of Plaintiff’s.
18. Between 2000 and 2006, Plaintiff exchanged routine correspondence with both publishing companies regarding the publication of his novels. Prison staff were aware that Plaintiff was seeking and had obtained publication of the above-mentioned works, did not consider his activities to violate any DOC policies, and did not attempt to curtail his writing or publishing activities.
19. In 2004, while Plaintiff was housed at Polk Correctional Center, TCP made a mistake and mailed a $5,000 advance check to Plaintiff. Plaintiff’s case manager informed Defendant that he could not have money sent from a publisher. Even at this time, staff did not consider his activities to violate any DOC policies.
20. While Plaintiff was housed at Lanesboro, Warren and Polk Correctional Institutions, there is no record of any problems arising as a result of this correspondence or the publication of Plaintiff’s novels.
21. Indeed, Plaintiff’s disciplinary file suggests that prior to November 30, 2006, Plaintiff’s disciplinary infractions decreased dramatically after Plaintiff began to write for publication.
22. Between December 13, 2002 and August 20, 2006, a span of nearly four years, Plaintiff’s disciplinary file indicates no disciplinary infractions. During this time period, numerous prison officials and employees complimented Plaintiff during this time for “doing something positive.”
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23. Prior to the November 30, 2006 incident with Defendant O’Neal at Central Prison, which is described below, DOC staff did not interpret Plaintiff’s actions in writing books for publication and attending to routine business matters associated with such publication as violating any DOC policies.
24. Whatever small monetary proceeds that Plaintiff has received as a result of some of his publishing activities are sent to an outside Navy Federal account, which was opened by Plaintiff in or around January 1995 when he was in boot camp for the United States Marine Corps. Prison staff are not required to spend any time dealing with Plaintiff’s financial affairs or his ministerial activities related to his book publications.
Central Prison – May 2006 through July 2007 25. Plaintiff was transferred from Warren Correctional Institution to Central Prison on May 10, 2006. 26. A short time after Plaintiff arrived at Central Prison, his case manager informed him that he could continue to write for publication, and that writing books for publication did not violate DOC policies, including Policy B.0700. Defendant’s unit manager informed Defendant that he did not object to Defendant’s writing so long as it was not gang-related. 27. Between May 2006 and November 30, 2006, there is no record or other indication that Plaintiff’s writing and publication efforts imposed any burden on the staff at Central Prison or that it deterred or distracted in any way from any legitimate penological objective.
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28. On November 30, 2006, by order of Defendant O’Neal, a sergeant and two officers searched Plaintiff’s cell and seized materials related to his urban fiction writing and his publication efforts.
29. As a result of the November 30, 2006 search, Defendant O’Neal charged Plaintiff with engaging in a business activity, a violation of DOC Division of Prisons Policy B.0700, “Inmates Conducting Personal Business” (the “Policy”).
30. While disciplining him for his writing, Defendant O’Neal harassed Plaintiff and uttered an offensive racial slur to him.
31. After these events, Plaintiff received several disciplinary infractions and was repeatedly placed on segregation because of his writing and publishing activities, and specifically because of the content of those writings.
32. Defendant O’Neal figured prominently in many of Plaintiff’s disciplinary infractions. For instance, Plaintiff was found guilty and received punishment for at least five infractions based upon mail reviewed by Defendant O’Neal on January 17, 2007 that was related to Plaintiff’s writings. These infractions include two separate write-ups for alleged bartering and trading. It appears that Plaintiff received 100 days in disciplinary segregation for the alleged infractions of January 17, 2007 alone.
33. Under disciplinary segregation, an inmate is placed in an isolation cell. For only four days out of a week, the inmate is permitted out of the cell, in order to shower and engage in “recreation” in a cage in the outside yard. Recreation lasts for one hour, and then the inmate is given fifteen minutes to shower. On “non-rec” days, an inmate is kept in his cell 24 hours a day. While on disciplinary segregation, an inmate
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has no access to television, phone and no church services. While Plaintiff was allowed face-to-face visits, these visits were through a glass window while he was in chains and cuffs. The lights are turned on at 6:00 a.m. and turned off at 10:00 p.m. Inmates are fed through a metal trap in the cell door.
34. Plaintiff has also been subject to censorship of his outgoing and incoming mail, and has received disciplinary infractions for receiving correspondence from his publishers without being given a chance to ask his publishers to stop sending correspondence.
35. For instance, on January 4, 2007, Plaintiff received twenty days in disciplinary segregation for receiving an incoming letter containing a “Literary Agency Agreement” from Green & Company Printing & Publishing. This letter was reviewed by Defendant O’Neal on December 13, 2006. Plaintiff was found guilty of engaging in a business activity even after he attempted to explain that he was “not responsible for what somebody sends him in the mail.” On January 25, 2007, Plaintiff was again disciplined after Defendant O’Neal reviewed Plaintiff’s mail on January 17, 2007 and discovered a letter from Triple Crown Publications regarding royalty checks that had been sent to Plaintiff’s outside account. In his defense, Plaintiff argued that “he has attempted through United States Postal Service to stop all correspondence in reference to these issues. He states that he has not been given enough time to do this.”
36. Plaintiff filed a grievance with DOC in January 2007 complaining that he was not allowed to correspond with his publisher.
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37. On February 1, 2007, Plaintiff was punished with even more disciplinary segregation after Defendant O’Neal reviewed a letter Plaintiff wrote to his publisher in an attempt to find a typist for one of his manuscripts.
38. In February 2007, Plaintiff filed a grievance alleging racial harassment on the part of Defendant O’Neal and the violation of his rights under the First Amendment.
39. While incarcerated at Central Prison, Plaintiff was targeted for punishment based, in part, on the content of his writings. Notably, between March 1998 and November 30, 2006, Plaintiff was charged with a total of twenty-one (21) disciplinary infractions while housed at various state prisons. But from November 30, 2006 through June 18, 2007, the seven months Plaintiff spent at Central Prison, Plaintiff was charged with a total of thirty (30) disciplinary infractions, all related in some capacity to his writing or publication efforts. Thus, Plaintiff was charged with nine more infractions in a sevenmonth span at Central Prison than he had received in the previous eight years.
40. Upon information and belief, the disciplinary actions against Plaintiff occurring between November 30, 2006 and June 18, 2007, were motivated by racial prejudice and by a disdain for the content of Plaintiff’s works of urban fiction.
Warren and Pasquotank Correctional Institutions – July 2007 to the Present 41. Plaintiff was transferred from Central Prison to Warren Correctional Institution on July 6, 2007 and remained at Warren from July 2007 until April 2, 2008. During those ten months, Plaintiff received only two disciplinary infractions – both related to his writing and publishing activities.
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42. Plaintiff was transferred from Warren to Pasquotank Correctional Institution on April 2, 2008. To date, Plaintiff has received no disciplinary infractions at Pasquotank.
43. There is no record or other indication that Plaintiff’s writing and publication efforts have imposed any burden on guards at Warren Correctional Institution or Pasquotank Correctional Institution. Indeed, prison officials at Pasquotank Correctional Institution appear to support Plaintiff’s writing efforts.
Seizure and Destruction of Plaintiff’s 310-Page Manuscript 44. In March 2007, prison officials at Central Prison seized a 310-page urban fiction manuscript (“the Manuscript”) written by Plaintiff that Plaintiff had attempted to mail outside the prison to be typed and copyrighted. Plaintiff was not disciplined for this activity. 45. Upon information and belief, prison officials transferred possession of the Manuscript to Defendant O’Neal. 46. Plaintiff filed a grievance in April 2007 alleging biased treatment by Captain O’Neal in preventing Plaintiff from copyrighting his 310-page manuscript. 47. Katherine Lewis Parker, Legal Director for the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) contacted DOC on Plaintiff’s behalf in June 2007. Stephanie Teachey, an employee in the Administrator’s office at Central Prison, informed Ms. Parker that the Manuscript was still intact and that Central Prison planned to hold the Manuscript in the event of an appeal.
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48. On or about July 10, 2007, the General Counsel of DOC, LaVee Hamer, advised Ms. Parker that Plaintiff’s Manuscript was still in the possession of DOC and had not been destroyed.
49. In March 2008, Ms. Parker, on behalf of Plaintiff, contacted the DOC to reiterate Plaintiff’s request that the Manuscript or a copy of the Manuscript be returned to him or mailed to one of his family members. No response was forthcoming.
50. On May 21, 2008, Ms. Parker wrote to Defendants, requesting the return of Plaintiff’s Manuscript and a clarification of how Policy B.0700 is applied to Plaintiff’s writing and publishing activities.
51. In July 2008, Defendants indicated to Ms. Parker for the first time that DOC is no longer in possession of the Manuscript.
52. Upon information and belief, Defendant O’Neal destroyed the Manuscript, without providing Plaintiff with any due process before such destruction.
The Need for Declaratory Relief 53. Plaintiff, through counsel, has sought clarification of DOC’s interpretation of the Policy. Specifically, Plaintiff has asked for clarification of whether DOC’s policy prohibits him from writing literary works for publication without compensation, from taking certain ministerial actions related to such publication, or from seeking copyright protection for his works without publishing them. DOC has refused to provide any clarification on these points. Plaintiff intends and wishes to continue writing literary works, to publish them, with or without compensation, and to take ministerial actions, including securing copyright registrations, attendant to such writing and publication. As
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a result of DOC’s actions in disciplining Plaintiff for writing and publishing his works, and for engaging in ministerial activities necessarily attendant to such publication, and its refusal to provide the clarification of the Policy that Plaintiff has sought as set forth above, Plaintiff is insecure in his rights and is in need of a judicial declaration of his rights.
FIRST CAUSE OF ACTION – ALL DEFENDANTS VIOLATION OF PLAINTIFF’S FREE SPEECH RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENTS 54. Plaintiff incorporates by reference paragraphs 1 through 53 of this Complaint as if fully set out herein. 55. Defendants’ punishment of Plaintiff and selective enforcement of Policy B.0700 in order to discipline Plaintiff for writing and publishing works of urban fiction, based on racial bias and on Defendants’ disdain for the content of Plaintiff’s works, violates Plaintiff’s rights under the First and Fourteenth Amendments. 56. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for publishing and seeking to publish his works of urban fiction without compensation violates Plaintiff’s rights under the First and Fourteenth Amendments. 57. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for obtaining federal copyright registrations for his works of urban fiction violates Plaintiff’s rights under the First and Fourteenth Amendments. 58. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for writing urban fiction without any attempt to publish (with or without
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compensation) or to obtain federal copyright registrations for the material violates Plaintiff’s rights under the First and Fourteenth Amendments.
59. Plaintiff has suffered injury, including irreparable injury, and damages as a direct and proximate result of Defendants’ violation of his First Amendment rights as alleged herein. Defendants’ are jointly and severally liable to Plaintiff for all such damages in an amount to be proven at trial.
SECOND CAUSE OF ACTION – ALL DEFENDANTS DESTRUCTION OF PROPERTY IN VIOLATION OF PLAINTIFF’S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT 60. Plaintiff incorporates by reference paragraphs 1 through 59 of this Complaint as if fully set out herein. 61. The actions of Defendants in destroying Plaintiff’s Manuscript violated the rights of the Plaintiff to Due Process of Law under the Fourteenth Amendment to the United States Constitution, which guarantees that prisoners are entitled to at least minimal procedural safeguards before they may be deprived of their property, thereby ensuring that their constitutional rights are not entirely abrogated. 62. Plaintiff is informed, believes, and therefore alleges that the actions of Defendant O’Neal, in seizing and destroying the Manuscript without providing minimal procedural safeguards, constituted the official policy and custom of the Defendants and were part of a pattern of conduct in violation of citizens’ rights. 63. In the alternative, Defendant O’Neal acted outside the scope of his agency, outside the pattern, practice, policy or custom of Defendants, and/or in an intentional,
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malicious or corrupt manner in his dealings with the Plaintiff; and, therefore, Defendant O’Neal is personally liable for the violation of Plaintiff’s rights.
64. Plaintiff has suffered injury, including irreparable injury, and damages as a direct and proximate result of Defendants’ destruction of his property as alleged herein. Defendants’ are jointly and severally liable to Plaintiff for all such damages in an amount to be proven at trial.
THIRD CAUSE OF ACTION – DEFENDANT O’NEAL ONLY CONVERSION
65. Plaintiff incorporates by reference paragraphs 1 through 64 of this Complaint as if fully set out herein.
66. By intentionally destroying Plaintiff’s Manuscript without providing Plaintiff with any post-deprivation remedy, thereby depriving Plaintiff of his property without State authorization, Defendant O’Neal unlawfully converted Plaintiff’s property in violation of state law.
67. As a direct and proximate result of Defendant O’Neal’s actions herein, Plaintiff has suffered damages for his lost Manuscript.
FOURTH CAUSE OF ACTION– DEFENDANT O’NEAL ONLY GROSS NEGLIGENCE
68. Plaintiff incorporates by reference paragraphs 1 through 67 of this Complaint as if fully set out herein.
69. The conduct of Defendant O’Neal in destroying Plaintiff’s Manuscript was purposeful, and was with knowledge that it constituted a breach of his duty to observe and honor the rights of others.
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70. In addition, the actions of Defendant O’Neal were done needlessly, manifesting a conscious and reckless disregard of and indifference to the rights of others.
71. The conduct of Defendant O’Neal amounted to gross negligence in the performance of his duties owed to Plaintiff.
72. As a direct and proximate result of Defendant O’Neal’s actions herein, Plaintiff has suffered damages for his lost Manuscript.
FIFTH CAUSE OF ACTION – DEFENDANT O’NEAL ONLY VIOLATION OF PLAINTIFF’S RIGHT UNDER 42 U.S.C. § 1981
TO BE FREE FROM RACIAL DISCRIMINATION
73. Plaintiff incorporates by reference paragraphs 1 through 72 of this Complaint as if fully set out herein.
74. Plaintiff is of the African-American race, a racial minority within the protections afforded racial minorities under 42 U.S.C. § 1981.
75. Defendant O’Neal acted with unlawful racially discriminatory motivation in targeting Plaintiff for disciplinary action as a result of Plaintiff’s urban fiction writing and in destroying Plaintiff’s Manuscript, as evidenced by a racial slur that Defendant O’Neal directed at Plaintiff during such an incident.
76. Defendant O’Neal’s discriminatory statement and actions were performed under color of state law.
JURY DEMAND Plaintiff hereby demands trial by jury on all issues so triable. WHEREFORE, Plaintiff hereby respectfully requests that this Court issue: 1. A declaratory judgment declaring the following:
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a. Defendant’s intended application of Policy B.0700 in order to discipline Plaintiff for writing, seeking to publish, and publishing his works of urban fiction for compensation violates Plaintiff’s rights under the First and Fourteenth Amendments.
b. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for writing, seeking to publish, and publishing his works of urban fiction without compensation violates Plaintiff’s rights under the First and Fourteenth Amendments.
c. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for taking ministerial activities in connection with writing, seeking to publish, and publishing his works, including securing copyright registrations for those works, violates Plaintiff’s rights under the First and Fourteenth Amendments.
d. Defendants’ intended application of Policy B.0700 in order to discipline Plaintiff for writing works of urban fiction without any attempt to publish (with or without compensation) or to copyright the material violates Plaintiff’s rights under the First and Fourteenth Amendments.
2. An injunction prohibiting Defendants, their successors, assigns, those persons in active concert or participation with Defendants, and all other persons within the scope of Federal Rule of Civil Procedure 65, from applying Policy B.0700 in order to discipline Plaintiff for (1) seeking to publish and publishing literary works for compensation; (2) seeking to publish and publishing literary works without compensation;
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(3) taking ministerial activities related to seeking to publish and publication of his literary
works, including securing copyright registrations; and/or (4) creating literary works of
urban fiction without any attempt to publish (with or without compensation) or to
copyright the material.
3. Recovery of nominal, compensatory and punitive damages in an amount
to be proven at trial;
4. Reasonable expenses and attorney fees, pursuant to 42 U.S.C. § 1988;
5. That Plaintiff have and receive a jury trial on all issues so triable; and
6. Such other and further relief as to the Court seems just and proper.
Respectfully submitted this 3rd day of February, 2009.
s/ W. Swain Wood W. Swain Wood* NC Bar No. 32037 WOOD JACKSON PLLC Cooperating Attorney 301 Glenwood Ave., Suite 280 Raleigh, NC 27603-1465 Telephone: (919) 829-7394 Facsimile: (919) 829-7396 Email: swood@woodjacksonlaw.com
*Cooperating Attorney for the American Civil Liberties Union of North Carolina Legal Foundation
Katherine Lewis Parker NC Bar No. 36263 Legal Director, American Civil Liberties Union of North Carolina Legal Foundation Post Office Box 28004 Raleigh, North Carolina 27611 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 Email: acluncklp@nc.rr.com
Counsel for Plaintiff Victor L. Martin
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 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

No. 5:09-CT-3021-FL

VICTOR L. MARTIN, Plaintiff,
v.
ALVIN W. KELLER, et al., Defendants.

)

)

)

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ANSWER

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)

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)

NOW COME Defendants and answer the Complaint. FIRST DEFENSE
Defendants respond to the individually numbered paragraphs of the Complaint as follows: 1. Admitted that Plaintiff is an inmate in DOC’s custody. The other allegations are neither admitted nor denied due to lack of knowledge. 2. These allegations are neither admitted nor denied due to lack of knowledge. 3. Denied that Defendants are attempting to silence Plaintiff’s voice or that Defendants’ actions with respect to Plaintiff are based on the content of his writings. The other allegations are neither admitted nor denied due to lack of knowledge. 4. Denied. 5 and 6. These paragraphs contain legal conclusions, which are neither admitted nor denied. 7. Admitted that Plaintiff is currently confined at Johnston Correctional Institution and has previously been confined at other DOC facilities, including Pasquotank, Central Prison, Lanesboro, Polk, and Warren. 8. Admitted.

-29. Admitted, except that Boyd Bennett has retired. Robert C. Lewis is the current Director of the Division of Prisons. 10. Admitted, except that Gerald Branker’s title is Warden and, before that, Deputy Warden. 11. Admitted, except that Captain O’Neal now serves as Support Services Manager rather than Internal Affairs Officer. 12 and 13. Denied. 14 through 19. These allegations are neither admitted nor denied due to lack of knowledge. 20 through 23. Plaintiff’s disciplinary records (which have been provided to his attorneys) speak for themselves. Defendants are without knowledge of what unnamed staff persons may have said to Plaintiff at unspecified times. 24. The first sentence is neither admitted nor denied due to lack of knowledge. The second sentence is denied, because much staff time has been spent dealing with Plaintiff’s publishing activities. 25. Admitted. 26. Admitted that Plaintiff’s first case manager at Central Prison made a written notation that Plaintiff asked her about getting publishers to donate his books and that she told Plaintiff to have the publishers contact her and she would look into it. Otherwise, these allegations are neither admitted nor denied due to lack of knowledge. 27 through 29. Plaintiff’s disciplinary records speak for themselves. 30. Denied.

-331. Denied that Plaintiff was disciplined or placed on segregation because of the content of his writings. Plaintiff’s disciplinary records speak for themselves. 32. Plaintiff’s disciplinary records speak for themselves. 33. Admitted generally, except that lights are turned out at 11 (not 10) p.m., segregated inmates may (in addition to leaving their cells for recreation and showers) be removed from their cells from time to time for administrative and medical appointments, and segregated inmates have access to chaplains. 34. Admitted that Plaintiff has been subject to censorship of his mail. Plaintiff’s disciplinary records speak for themselves. 35. Plaintiff’s disciplinary records speak for themselves. 36. Plaintiff’s grievance records (which have been provided to his attorneys) speak for themselves. 37. Plaintiff’s disciplinary records speak for themselves. 38. Plaintiff’s grievance records speak for themselves. 39. Denied that Plaintiff was targeted for punishment based in any degree on the content of his writings. Plaintiff’s disciplinary records speak for themselves. 40. Denied. 41. Admitted that Plaintiff was confined at Warren Correctional Institution from July 6, 2007 to April 2, 2008. Plaintiff’s disciplinary records speak for themselves. 42. Admitted. 43. These allegations are neither admitted nor denied due to lack of knowledge.

-444. Because prison officials cannot account for any document fitting Plaintiff’s description of “the Manuscript,” the allegation in the first sentence is denied. Plaintiff’s disciplinary records speak for themselves. 45. Denied, for the reason set forth in the first sentence of the preceding paragraph. 46. Plaintiff’s grievance records speak for themselves. 47. Admitted that Stephanie Teachey spoke by phone with Katherine Lewis Parker in June 2007 and intended to convey to Ms. Parker that any manuscript confiscated in connection with a disciplinary charge would be held pending the outcome of the disciplinary process. Denied that Ms. Teachey actually knew that what Plaintiff refers to as “the Manuscript” was being held or that it even existed. 48. Admitted that LaVee Hamer spoke with Ms. Parker about Plaintiff on or around July 10, 2007. Denied that Ms. Hamer had any direct knowledge about what Plaintiff refers to as “the Manuscript.” 49. This allegation is neither admitted nor denied due to lack of knowledge. 50. Admitted. 51. This allegation appears to refer to Ms. Hamer’s letter to Ms. Parker dated July 10, 2008, which speaks for itself. 52. Denied. 53. Denied that there is a need for declaratory relief. 54. Defendants incorporate by reference paragraphs 1 through 53 of this Answer. 55 through 59. Denied. 60. Defendants incorporate by reference paragraphs 1 through 59 of this Answer.

-561 through 64. Denied. 65. Defendants incorporate by reference paragraphs 1 through 64 of this Answer. 66 and 67. Denied. 68. Defendants incorporate by reference paragraphs 1 through 67 of this Answer. 69 through 72. Denied. 73. Defendants incorporate by reference paragraphs 1 through 72 of this Answer. 74. Admitted that Plaintiff is African-American. 75 and 76. Denied.
SECOND DEFENSE NO DEPRIVATION OF RIGHTS Defendants deny that they have deprived, or are depriving, Plaintiff of any constitutional, statutory, or common law right.
THIRD DEFENSE FAILURE TO STATE A CLAIM Plaintiff fails to state a claim on which relief can be granted.
FOURTH DEFENSE QUALIFIED IMMUNITY To the extent Plaintiff seeks to recover money damages from Defendants in their individual capacities, Defendants did not violate any clearly established constitutional right of which a reasonable person would have known, and thus qualified immunity bars Plaintiff’s constitutional claims against them.

-6FIFTH DEFENSE SOVEREIGN IMMUNITY To the extent Plaintiff seeks to recover money damages from Defendants in their official capacities, sovereign immunity bars Plaintiff’s claims against them. SIXTH DEFENSE FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES This action is barred as to any given claim to the extent Plaintiff failed to exhaust his administrative remedies relating to such claim. SIXTH DEFENSE NO PROXIMATE CAUSE No act or failure to act by a Defendant was the proximate cause of any injuries or damages complained of by Plaintiff. SEVENTH DEFENSE NO PUNITIVE DAMAGES The Complaint does not identify any aggravating factor that supports a claim for punitive damages.
WHEREFORE, Defendants pray that Plaintiff be denied any relief, that this action be dismissed with prejudice, and that the Court award Defendants such other relief as justice requires.

This the 8th day of July, 2009.

-7-
ROY COOPER Attorney General
/s/ J. Philip Allen Assistant Attorney General N.C. State Bar No. 13246 N.C. Department of Justice PO Box 629 Raleigh NC 27602-0629 Phone: 919-716-6566 Email: pallen@ncdoj.gov

CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to Plaintiff’s attorneys. This the 8th day of July, 2009.
/s/ J. Philip Allen Assistant Attorney General

 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No.S:09-ct-03021-FL

VICTOR L. MARTIN,

)

)

Plaintiff,

)

)

v.

)

)

ALVIN W. KELLER, SECRETARY OF )

NORTH CAROLINA DEPARTMENT )

OF CORRECTION; BOYD BENNETT, )

DIRECTOR OF NORTH CAROLINA )

DIVISION OF PRISONS; GERALD

)

BRANKER, ADMINISTRATOR,

)

CENTRAL PRISON; CAPTAIN

)

FREDERICK S. O'NEAL,

)

)

Defendants.

)

-----------------------)

STIPULATION OF DISMISSAL COME NOW Plaintiff and Defendants, by and through their respective counsel, pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, and hereby stipulate to a dismissal of this action. Said dismissal shall be with prejudice except that it shall be without prejudice as to claims regarding the constitutionality of any subsequently enacted NOllh Carolina Department of Correction Policy, as provided in Paragraph 5 of the settlement agreement that is attached hereto as Exhibit A.

Case 5:09-ct-03021-FL Document 34 Filed 03/08/2010 Page 1 of 3

Respectfully submitted this the 8th day ofMarch, 2010.

lsi Katherine Lewis Parker Katherine Lewis Parker N.C. Bar No. 36263 Legal Director, American Civil Liberties Union ofNorth Carolina Legal Foundation Post Office Box 28004 Raleigh, NC 27611 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 Email: ac1uncklp@nc.rr.com
Counsel for Plaintiff

Isl J. Philip Allen J. Philip Allen N.C. Bar No. 13246 N.C. Department of Justice Post Office Box 629 Raleigh, NC 27602-0629 Telephone: (919) 716-6566 Facsimile: (919) 716-6761 Email: pallen@ncdoj.gov
Counsel for Defendants

IslW. Swain Wood NC Bar No. 32037 Wood Jackson PLLS Cooperating Attorney 30 I Glenwood Ave., Suite 280 Raleigh, NC 27603-1465 Telephone: (919) 829-7394 Facsimile: (919) 829-7396 Email: swood@woodjacksonlaw.com
Counsel for Plaintiff

2 Case 5:09-ct-03021-FL Document 34 Filed 03/08/2010 Page 2 of 3

CERTIFICATE OF SERVICE I hereby ce11ify that on March 8, 2010, I electronically filed the foregoing Stipulation of Dismissal with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following: J. Philip Allen, attomey for Defendants.
Respectfully submitted, sl Katherine Lewis Parker Katherine Lewis Parker NC Bar No. 36263 Legal Director, American Civil Liberties Union ofNorth Carolina Legal Foundation Post Office Box 28004 Raleigh, North Carolina 27611 Telephone: (919) 834-3466 Facsimile: (866) 511-1344 Email: ac1unck1p@nc.rr.com Counsel for Plaintiff
3 Case 5:09-ct-03021-FL Document 34 Filed 03/08/2010 Page 3 of 3

 STATE OF NORTH CAROLINA
COUNTY OF WAKE
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into by and between Victor L. Martin ("Martin") and the Nmth Carolina Depattment of Con·ection ("DOC").
For good and valuable consideration set fotth below, the parties agree as follows:
1. DOC shall revise its policy on Inmates Conducting Personal Business, Division of Prisons Policies & Procedures Manual, B.0700 (the "Policy''), to add anew Section B.0705 - fumate Manuscripts, as set forth in the attachment hereto.
2. DOC shall overturn ten (1 0) disciplinaty infractions previo<tsly incurred by Mmtin in connection with his wliting mdlor publishing activities, including crediting to Mattin's inmate hust account any administrative fees previottsly deducted because of said infractions and restming to Martin any sentence reduction credits previously forfeited because of said infractions.
3. DOC shall pay Ten Thousand U.S. Dollars ($10,000.00) in a lump sum by a check payable to Amelican Civil Libetties Union of North Carolina Legal Foundation (Employer IdentificationNumber 56-1019644), as Martin's attomey. Said payment shall be inclusive of any attomey fees, filing fees, and other fees paid or payable by Martin in connection with the litigation referred to herein.
4. Upon receipt by Martin's attorneys ofthe check described in paragraph 3 above and documentation satisfactory to Martin's attomeys that the actions described in paragraphs 1 md 2 above have been performed, the parties shall execute and file a Stipulation of Dismissal of the following action:
Martin v. Keller, eta!., 5:09-CT-3021- FL (E.D.N.C.)
Said dismissal shall be with prejudice except as provided in paragraph 5 below.
5. DOC reserves the right to amend the Policy without Martin's consent. Martin reserves the right to file suit challenging the constitutionality of any amendment to the Policy.
EXHIBIT
I A
Case 5:09-ct-03021-FL Document 34-2 Filed 03/08/2010 Page 1 of 5

-2-
6. The patties agree to perfonn all actions described in paragraphs 1 t1n·ough 4 above on or before March 9, 2010.
7. Except for the above-listed action, Mattin represents that, as ofthe date he executes tlris agreement, there are no other actions by him against DOC, its officials, agents, representatives, or employees pending in any judicial or administrative fo111m. Ifit is subsequently called to Martin's attention that any such other action was pending as ofthe date he executed this agreement, he agrees to promptly execute a voluntary disnrissal with prejudice ofsuch other action.
8. Martin releases DOC, its officials, agents, representatives, and employees from any and allliabilitythat has arisen or might arise concerning events occurring before his execution ofthis agreement and related to the above-referenced litigation.
9. DOC agrees not to bring new disciplinaty charges against Martin for any action he took before Januaty 21, 2010 in cmmection with the publication, marketing, or sale ofhis writings.
Case 5:09-ct-03021-FL Document 34-2 Filed 03/08/2010 Page 2 of 5

-3The foregoing constitutes the entire agreement between the parties. The ent1y into this agreement and the provisions contained herein shall not beconstmed as an admission ofwrongdoing by any party.
d..- d..S- d-Olo
Date

1 date
Date Date

\l\ IS P Legal nector, American Civil Liberties Union of North Carolina Legal Foundation
Attomeyfor Victor L. Martin
um/4~
Wood Jackson PLLC
Attomeyfor Victor L. Martin
NORTH CAROLINA DEPARTMENT OF CORRECTION
By:~Mfw-==""----'-'¢14=~--=+------­ LaVeeHamer General Counsel
gJ. Phili])Allel
Assistant Attorney General North Carolina Depm1ment ofJustice
Attomeyfor N.C. Department ofCorrection

Case 5:09-ct-03021-FL Document 34-2 Filed 03/08/2010 Page 3 of 5

.o705 INMATE MANUSCRIPTS
(a) Preparation
(I) An inmate may prepare a manuscript for private use, for. outside typing, for copyrighting, and/or for publication while in the custody of the Department of Correction without staff approval.
(2) For purposes ofthis policy, manuscript means fiction, nonfiction, poetry and music, lyrics, drawings and cmtoons, and other writings of a similar nature.
(3) .A:n, inmate mayuse only non-work time and non-program-assignment time to prepare a manuscript.
(4) Consistent withDivision ofPrisons policyF.0501 (b), the FacilityHeadmay Jimitthe accumulation ofmanuscriptmaterial as necessary for security, sanitation, and safety, including maintaining access to cell doors and preventing fire hazards.
(b) Distribution
(1) ·An inmate may mail a manuscript as general correspondence at the inmate's own expense.
(2) An inmate may not circulate a manuscript within the institution or to any other inmate.
(c) No compensation
(I) Consistent with B.0701 through B.0704 above, an inmate may not receive compensation of any sort from the sale ofpublished or unpublished nlanuscripts.
(2) Written or oral connnunications by an imnate with publishers, agents, or other persons regarding the sale or marketing of manuscripts or regarding the proceeds from the sale or potential sale of manuscripts shall be considered the conduct of a business for compensation in violation oftbis section, unless evidence shows that the inmate did not solicit or initiate the communication and unless the inmate acts immediately to terminate the communication and to discourage future such commuuications. A general power of attorney given by an inmate to a parent, spotJSe, or child of the inmate shall not, by itself, be considered evidence that the inmate has violated this subsection (c).
Case 5:09-ct-03021-FL Document 34-2 Filed 03/08/2010 Page 4 of 5

. '
-2-
(3) Any check, money order, or other payment sent by a publisher or marketer of manuscripts to an inmate at the inmate's prison address (other than a refund of a canceled subscription) will be returned to the sender and may, depending on the circumstances, be considered evidence that the inmate has violated this section.
(d) Confiscation
(1) Ifprison staffconfiscates animnate's manuscript because the inmate has violated this section or for any other reason, the manuscript shalt be identified on a form DC-160 (Personal Property fuvento1y) by its title (ifany), its number ofpages, and any other identifying characteristics. The date and time ofthe confiscation shall be noted on the DC-160. The manuscript shall be maintained in DOC's custody unless it is mailed out in accordance with subsection (d)(3) below or returned to the inmate.
(2) Any confiscation ofan inmate's manuscript shall bepe1formedjointlyby at least two staffmembers. Both staffmembers and the inmate shalt sign and date the DC-160. The inmate shall be given a copy of the signed DC-160 immediately after the confiscation.
(3) If the confiscated manuscript is not being held as evidence, the inmate may elect to have the manuscript mailed out at the inmate's expense. The appropriate Region Director shall be consulted prior to the final disposition of any confiscated manuscript.
(e) Receipt ofPublications authored by Inmates
An inmate's receipt ofpublications authored by other inmates shall be governedbyDivision ofPrisons policy D.OlOO, which requires (among other things) that publications be received only from a legitimate publisher, marketer, or distribution center for published materials. The fact that an inmate's manuscript has been published does not necessarily mean that it will be approved for receipt by other illlllates. Inmates who author publications may not encourage or intimidate other illlllates to purchase their publications. Inmates who author publications may discuss those publications with other illlllates provided such discussions are not disruptive.
(f) Miscellaneous
(1) Communications incidental to securing copyright registration are allowable.
(2) General correspondence withindividuals outside !heprison about an inmate's writing is allowable provided it does not involve compensation and does not constitute au advertisement or similar solicitation.
Case 5:09-ct-03021-FL Document 34-2 Filed 03/08/2010 Page 5 of 5

 CASREF, CLOSED
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:09−ct−03021−FL

Martin v. Keller et al Assigned to: Chief Judge Louise Wood Flanagan Referred to: USMJ David W. Daniel (Settlement) Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 02/03/2009 Date Terminated: 03/08/2010 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Victor L Martin

represented by W. Swain Wood Wood Jackson PLLC 301 Glenwood Ave., Ste. 280 Raleigh , NC 27603 919 829 7001 Fax: 919 829 7396 Email: swood@woodjacksonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Lewis Parker American Civil Liberties Union of North Carolina P. O. Box 28004 Raleigh , NC 27611 919−834−3466 Fax: 866−511−1344 Email: acluncklp@nc.rr.com ATTORNEY TO BE NOTICED

V. Defendant Alvin W. Keller
Defendant Director Boyd Bennett
Defendant Administrator Gerald Branker
Defendant Captain Frederick S. O'Neal

represented by James Philip Allen N. C. Dept. of Justice P. O. Box 629 Raleigh , NC 27602−0629 919−716−6541 Fax: 919−716−6761 Email: pallen@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Philip Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Philip Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Philip Allen (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/03/2009 02/03/2009 02/05/2009 02/05/2009
02/05/2009 04/07/2009 04/07/2009
04/08/2009 04/20/2009 05/21/2009
05/29/2009 05/29/2009 06/02/2009
07/08/2009 07/14/2009 07/22/2009

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 04170000000000794594.), filed by Victor L Martin. (Attachments: # 1 Civil Cover Sheet Cover Sheet) (Wood, W.) (Entered: 02/03/2009)
2 ORDER that all future filing should reflect the revised case number of 5:09−CT−3021−FL. Signed by Clerk of Court on 2/3/2009. (Indig, A.) (Entered: 02/03/2009)
NOTICE OF DEFICIENCY re: 1 Complaint − The summons were not attached to the complaint. Please re−file the complaint and attached any summons. (McDowell, G.) (Entered: 02/05/2009)
3 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 04170000000000794594.), filed by Victor L Martin. (Attachments: # 1 Summons to Keller, # 2 Summons to Boyd, # 3 Summons to O'Neal, # 4 Summons to Branker) (Wood, W.) (Entered: 02/05/2009)
4 NOTICE of Appearance by Katherine Lewis Parker on behalf of Victor L Martin (Parker, Katherine) (Entered: 02/05/2009)
5 ORDER DIRECTING CLERK TO CONTINUE MANAGEMENT OF CASE. Signed by Chief Judge Louise Wood Flanagan on 4/7/2009. (Shannon, K.) (Entered: 04/07/2009)
6 Order of Investigation−−NCPLS to investigate pltf's claims. Signed by Dennis Iavarone, Clerk cc to pltf. w/notice and waiver form and cc to NCPLS and NCAG. Response to Order due by 7/6/2009. Signed by Clerk of Court on 4/7/2009. (Shannon, K.) (Entered: 04/07/2009)
7 Summons Issued as to Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Shannon, K.) (Entered: 04/08/2009)
8 ORDER that the Clerk of Court's April 7, 2009 order of investigation is hereby vacated. Signed by Chief Judge Louise Wood Flanagan on 4/19/2009. (Indig, A.) (Entered: 04/20/2009)
9 AFFIDAVIT of Service for Summons and Complaint served on Boyd Bennett; Captain Frederick S. O'Neal; Gerald Branker; Alvin W. Keller on May 18, 2009, filed by Victor L Martin. (Attachments: # 1 Exhibit Signed Certified Mail Green Cards) (Wood, W.) (Entered: 05/21/2009)
10 NOTICE of Appearance by James Philip Allen on behalf of Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal (Allen, James) (Entered: 05/29/2009)
11 MOTION for Extension of Time to File Answer by Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Attachments: # 1 Text of Proposed Order) (Allen, James) (Entered: 05/29/2009)
12 ORDER granting 11 Motion for Extension of Time to Answer Alvin W. Keller answer due 7/8/2009; Boyd Bennett answer due 7/8/2009; Gerald Branker answer due 7/8/2009; Frederick S. O'Neal answer due 7/8/2009.. Signed by Clerk of Court on 6/2/2009. (Indig, A.) (Entered: 06/02/2009)
13 ANSWER to 3 Complaint, 1 Complaint, ANSWER to 3 Complaint, 1 Complaint by Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Allen, James) (Entered: 07/08/2009)
14 Request for Discovery Stipulation. (Indig, A.) (Entered: 07/14/2009)
15 MOTION for Extension of Time to file discovery stipulation by Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Attachments: # 1 Text of Proposed Order granting extension of time to file discovery stipulation) (Allen, James) (Entered: 07/22/2009)

07/22/2009 09/02/2009 09/03/2009
09/03/2009 09/08/2009 09/17/2009 09/21/2009
09/24/2009
10/01/2009 10/07/2009 11/02/2009 11/09/2009 12/18/2009 01/04/2010 01/07/2010

16 ORDER granting 15 Motion for Extension of Time to file discovery stipulations until 9/2/2009. Signed by Clerk of Court on 7/22/2009. (Indig, A.) (Entered: 07/22/2009)
17 Rule 26(f) Report (joint) by Victor L Martin, Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Parker, Katherine) (Entered: 09/02/2009)
NOTICE OF DEFICIENCY re: 17 Rule 26(f) Report (joint) ; Pursuant to Local Civil Rule 6.1, or the judges practice preferences on the courts website, counsel must submit a proposed order. The order must be filed electronically using the event PROPOSED ORDER located in the RESPONSES AND REPLIES category. (Indig, A.) (Entered: 09/03/2009)
18 Proposed Order re 17 Rule 26(f) Report (joint) filed by Victor L Martin, Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Parker, Katherine) (Entered: 09/03/2009)
19 Proposed Order re 17 Rule 26(f) Report (joint) filed by Victor L Martin, Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Parker, Katherine) (Entered: 09/08/2009)
NOTICE of Hearing: Initial Conference set for 9/24/2009 09:30 AM in Telephonic before Chief Judge Louise Wood Flanagan. Attendance of all counsel of record via telephone is required. Counsel will be notified of conference call details in advance of the conference. (McDowell, G.) (Entered: 09/17/2009)
20 ORDER that this matter is before the court of its own initiative, and in furtherance of the mandate embodied in Rule 1 of the Federal Rules of Civil Procedure, where the courts administration of the case shall further its just, speedy, and inexpensive determination. It appears in this case certain processes mistakenly have been invoked by the clerk of court in its case administration. Order commenting on the same will aid future litigation, as well. Signed by Chief Judge Louise Wood Flanagan on 9/21/2009. (Indig, A.) (Entered: 09/21/2009)
Minute Entry for proceedings held before Chief Judge Louise Wood Flanagan: Initial Telephonic Scheduling Conference held on 9/24/2009. Present at conference − W. Swain Wood or Plaintiff; James Philip Allen for Defendants; Melissa Michaud and Mandy Smith; Law Clerks; Gayle McDowell, Case Manager; Christa Baker, Deputy Clerk. Issues bearing on case management and scheduling addressed. Written case management order to issue. (Baker, C.) (Entered: 09/24/2009)
21 CASE MANAGEMENT ORDER: Discovery due by 5/14/2010. Motions due by 6/14/2010. Jury Trial set for 10/18/2010 09:00 AM in Raleigh − Courtroom TBA before Chief Judge Louise Wood Flanagan. Signed by Chief Judge Louise Wood Flanagan on 9/24/2009. (McDowell, G.) (Entered: 10/01/2009)
22 NOTICE by Victor L Martin, Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal of Consent to Settlement Conference (Allen, James) (Entered: 10/07/2009)
23 ORDER REFERRING CASE to Magistrate Judge USMJ David W. Daniel for court−hosted settlement conference. Signed by Chief Judge Louise Wood Flanagan on 11/2/2009. (Shannon, K.) (Entered: 11/03/2009)
24 Order Setting Hearings − Settlement Conference set for 1/21/2010 at 9:30 AM at the U.S. Brankruptcy Court Building in Wilson, NC before USMJ David W. Daniel. Signed by USMJ David W. Daniel on 11/9/2009. (Indig, A.) (Entered: 11/10/2009)
25 MOTION for Writ to Produce Plaintiff at Court−Hosted Settlement Conference by Victor L Martin. (Parker, Katherine) (Entered: 12/18/2009)
Motions Submitted to Magistrate Judge Daniel: 25 MOTION for Writ to Produce Plaintiff at Court−Hosted Settlement Conference (McDowell, G.) (Entered: 01/04/2010)
26 ORDER that the court−hosted settlement conference presently scheduled for January 21, 2010 at 9:30a.m. in Wilson, North Carolina will be held in Courtroom #1 of the Terry Sanford Federal Building in Raleigh, North Carolina. Signed by USMJ David W. Daniel on 1/6/2010. (Indig, A.) (Entered: 01/07/2010)

01/07/2010 01/12/2010 01/21/2010 01/22/2010 02/19/2010 02/22/2010 03/08/2010

27 Writ of Habeas Corpus to produce Victor L. Martin and deliver to the US Courthouse 310 New Bern Ave., Raleigh, North Carolina, on the 21st of January, 2010. Signed by David W. Daniel, US Magistrate Judge. (Indig, A.) (Entered: 01/07/2010)
28 ORDER the court−hosted settlement conference presently scheduled for January 21, 2010 at 9:30a.m. will begin at 12:00p.m., January 21, 2010. Signed by USMJ David W. Daniel on 1/12/2010. (Indig, A.) (Entered: 01/12/2010)
29 Minute Entry for proceedings held before USMJ David W. Daniel: Settlement Conference held on 1/21/2010. (Court Reporter FTR Gold.) (Indig, A.) (Entered: 01/22/2010)
30 ORDER to consummate the settlement and file the appropriate documents to close the case on or before February 23, 2010. Signed by USMJ David W. Daniel on 1/22/2010. (Indig, A.) (Entered: 01/22/2010)
32 MOTION for Extension of Time to consummate settlement by Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal. (Attachments: # 1 Text of Proposed Order Extending time to consummate settlement) (Allen, James) (Entered: 02/19/2010)
33 ORDER granting 32 Motion for Extension of Time; Documents due by 3/9/2010. Signed by USMJ David W. Daniel on 2/22/2010. (McDowell, G.) (Entered: 02/22/2010)
34 NOTICE of Voluntary Dismissal by Victor L Martin, Alvin W. Keller, Boyd Bennett, Gerald Branker, Frederick S. O'Neal (Attachments: # 1 Exhibit A − Settlement Agreement) (Parker, Katherine) (Entered: 03/08/2010)


A North Carolina Department of Corrections inmate, became an acclaimed "urban fiction" novelist, successfully publishing several novels from prison. On February 3, 2009 he sued the prison in the U.S. District Court for the Eastern District of North Carolina for punishing him for his writing and publishing activities after a corrections officer seized and destroyed a 310-page handwritten manuscript. Plaintiff brought claims under the First and Fourteenth Amendment, and 42 U.S.C. 1981. 		

			

While in prison serving a 23-year sentence, Plaintiff wrote"urban fiction" novels, which feature gangsters, drug pushers, explicit language, and violence. Critics have praised the genre and Plaintiff in particular. A major publisher published four of his novels before 2006. While he was writing from 2002 to 2006, he had no disciplinary infractions and prison officials commended him for "doing something positive."

According to his complaint, this all changed in May 2006 when the Department of Corrections transferred Plaintiff to Central Prison in Raleigh. In November 2006, a Captain (then Lieutenant) searched Plainitiff's cell and seized a handwritten 310-page  manuscript and correspondence with publishers. Plaintiff, who is black, alleged the Captain used racial epithets during their encounters. Plaintiff was charged with violation of Prison Policy B.0700, "Inmates Conducting Personal Business." 

During his stay at Central, Plaintiff alleged he received 30 disciplinary infractions relating to his writing and publishing. He was punished for corresponding with his publisher and when his publisher mistakenly mailed a royalty check to the prison. He claimed prison officials would not allow him to contact his publishers to tell them to stop correspondence. He spent time in administrative segregation for infractions related to publishing. In 2008, Plaintiff was transferred to Pasquotank Correctional Institution. Officials there did not discipline him for his writing and publishing efforts, and appeared to support him. 

Because the Department of Corrections refused to give any guidance on policy B.0700, Plaintiff sought declaratory relief that the policy as implemented violated his First and Fourteenth Amendment rights. He also sought an injunction forcing the Department of Corrections to create a policy that would allow inmates to write and publish literary works with or without compensation and  to take ministerial actions related to publication such as securing copyrights. He also sought compensatory and punitive damages and attorney's fees and costs. 							

On March 8, 2010, the parties filed a stipulation of dismissal and a settlement agreement. The court dismissed the case that day based on the settlement. The agreement awarded Martin $10,000 to cover any damages, fees, and costs. The agreement also required the Department of Corrections to overturn 10 disciplinary infractions Martin received for his writing and publishing activities. Finally, the Department of Corrections amended their policy B.0700. Under the new section, B.0705 "Manuscripts of Inmates," inmates can possess manuscripts and seek copyrights. If officers wish to confiscate a manuscript, at least two officers must sign off on the seizure. The manuscript must not be destroyed until the regional director of the Department of Corrections reviews the case. The inmate can pay to mail a seized manuscript to someone outside the prison. However, the policy does not allow inmates to publish manuscripts for compensation, nor can they circulate manuscripts among other prisoners.

