Barbara Pollard v. Michelle Pollard

Filing 920090427

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1402

BARBARA POLLARD, Plaintiff - Appellant, v. MICHELLE POLLARD, in her individual capacity; LEE MOORE, in his individual and official capacity; RICK FISHER, in his individual and official capacity; MAC MANNING, in his official capacity as Sheriff of Pitt County, Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (4:07-cv-00109-BR)

Submitted:

March 31, 2009

Decided:

April 27, 2009

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David C. Sutton, SUTTON LAW OFFICES, P.A., Greenville, North Carolina, for Appellant. Scott C. Hart, SUMRELL, SUGG, CARMICHAEL, HICKS & HART, P.A., New Bern, North Carolina; William L. Hill, Torin L. Fury, FRAZIER, HILL & FURY, RLLP, Greensboro, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Barbara Pollard ("Pollard"), Administratrix of the

estate of her son, Stacey Pollard ("Stacey"), filed a 42 U.S.C. § 1983 (2000) action and state wrongful death action against Michelle Pollard ("Michelle"), Lieutenant with Pitt County

Sheriff's Office and Stacey's wife, and other members of the Pitt County to Sheriff's the her Fed. courts son's R. and the Office. claim, death. P. Pollard alleging The 12(b)(6) to posited a a denial of

access

police court to

cover-up granted the

surrounding Defendants' § 1983

district motion

Civ.

dismiss

action over

declined state law

entertain The a

supplemental district second more court

jurisdiction further complaint

claim. to to file

denied in

Pollard's which she

motion sought

amended factual

provide

allegations of the police cover-up. district court's dismissal of her

Pollard now appeals the § 1983 complaint and the

denial of her motion to amend. This court reviews de novo a district court's Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim. v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). a Rule 12(b)(6) motion is to test the Mayes

"The purpose of of a

sufficiency

complaint . . . ." 243 (4th Cir. 1999).

Edwards v. City of Goldsboro, 178 F.3d 231, In ruling on a 12(b)(6) motion, all well-

pleaded allegations in the complaint are to be taken as true and 2

all

reasonable

factual

inferences

are

to

be

drawn

in

the

plaintiff's favor.

Id. at 244.

Although a complaint need not

contain detailed allegations, the facts alleged must be enough to raise a right to relief above the speculative level. Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). Bell The

complaint must contain "enough facts to state a claim to relief that is plausible on its face." On erred leave in to appeal, Pollard her Id. at 1974. argues that the and on district in court her of

dismissing file a

§ 1983 amended

complaint complaint

denying ground

second

the

futility.

The gravamen of her appeal is that her § 1983 denial

of access to the courts claim based on a pervasive police coverup does not require that the claim be first litigated in state court. It is well established that citizens have a right of access to the courts. 415 n.12 (2002). See Christopher v. Harbury, 536 U.S. 403,

The right not only protects the ability to get

into courts, but also ensures that such access be "adequate, effective, and meaningful." (1977). The denial of Bounds v. Smith, 430 U.S. 817, 822 access to the courts is

meaningful

established where a party engages in pre-filing actions which effectively cover up evidence and actually render any state

court remedies ineffective.

Swekel v. City of River Rouge, 119 However, a "plaintiff cannot

F.3d 1259, 1262 (6th Cir. 1997). 3

merely

guess

that

a

state

court

remedy

will

be

ineffective

because of a defendant's actions."

Id. at 1264.

To prevail on

her claims, a plaintiff must demonstrate that the defendants' actions foreclosed her from filing suit in state court or

rendered ineffective any state court remedy she previously may have had. Id. at 1263-64. In action is this case, in Pollard's state court timely-filed and wrongful she death cannot

pending

therefore

credibly assert that Defendants' actions foreclosed her ability to file suit in state court. To the extent Pollard argues that

the police covered up proof and delayed her own investigation, thereby rendering any state court remedy ineffective, she has not presented evidence that the state court could not adequately address these problems. Swekel, 119 F.3d at 1264.

Pollard also argues that the district court erred in denying her motion for leave to file a second amended complaint. While a district court's denial of a motion for leave to amend a complaint is generally reviewed for abuse of discretion,

Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008), because the district court determined that the amended complaint would not survive a motion to dismiss, that legal

conclusion is reviewed de novo. 273, 277 n.2 (4th Cir. 2001). Pollard does nothing more

HCMF Corp. v. Allen, 238 F.3d In her second amended complaint, than allege additional facts

4

implicating the officers in the cover-up.

Because the amended

complaint does not alter the disposition of her case, we find the district court properly denied the motion. See Perkins v.

United States, 55 F.3d 910, 917 (4th Cir. 1995) (amendment is futile if the amended claim would fail to survive motion to dismiss). Accordingly, we affirm the district court's order

dismissing Pollard's § 1983 action and denying her motion to file a second amended complaint. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

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