Shell v. The State of Virginia
Filing
5
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/28/2016. (c/m)(hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KINDEL SHELL,
:
Plaintiff,
:
v.
: CIVIL ACTION NO. GLR-15-3356
STATE OF VIRGINIA,
:
Defendant.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiff Kindel Shell’s
Motion to Proceed in Forma Pauperis (ECF No. 2) and Motion to
Appoint
Counsel
(ECF
No.
3).
Because
he
appears
indigent,
Shell’s Motion to Proceed in Forma Pauperis will be granted.
For the reasons that follow, Shell’s Motion to Appoint Counsel
will be denied and his Complaint will be dismissed.
Shell initiated this action on November 3, 2015.
1).
(ECF No.
He alleges that in 1999, nine years after he moved to
Maryland from Virginia, Defendant, the State of Virginia, posted
a notice of a court hearing on a dwelling in Virginia that Shell
once occupied.
of
the
hearing
unidentifiable
offender.”
(Id.).
He further asserts that he never learned
and
“Circuit
(Id.).
because
Court”
he
failed
labeled
to
Shell
appear,
a
an
“habitual
Along with his Complaint, Shell filed a
Motion to Proceed in Forma Pauperis (ECF No. 2) and Motion to
Appoint Counsel (ECF No. 3).
A.
Shell’s Complaint
Because he seeks to proceed in forma pauperis, the Court
must screen Shell’s Complaint.
See 28 U.S.C. § 1915(e)(2)(B)
(2012); Michau v. Charleston Cty., S.C., 434 F.3d 725, 728 (4th
Cir. 2006).
As part of its screening process, the Court may
consider whether the Complaint fails to state a claim on which
relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii).
The standard for determining whether a plaintiff has failed
to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same
as the standard for reviewing a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).
De’Lonta v. Angelone,
330
Accordingly,
F.3d
630,
633
(4th
Cir.
2003).
Shell’s
Complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”
Bell
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Atl.
“Threadbare
Corp.
v.
recitals
Twombly,
of
the
550
elements
U.S.
of
544,
a
555
cause
of
(2007)).
action,
supported by mere conclusory statements, [will] not suffice.”
Id. (citing Twombly, 550 U.S. at 555).
Although
Shell
is
not
required
to
forecast
evidence
to
prove the elements of his claims, his Complaint must allege
sufficient facts to establish each element.
Goss v. Bank of
Am., N.A., 917 F.Supp.2d 445, 449 (D.Md.2013) (quoting Walters
v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff’d sub nom.,
2
Goss
v.
Bank
of
Am.,
NA,
546
F.App’x
165
(4th
Cir.
2013).
Shell’s allegations must give the State of Virginia fair notice
of what Shell’s claims are and the grounds upon which they rest.
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Additionally, when
reviewing Shell’s Complaint to determine whether it states a
claim,
the
Court
must
construe
it
liberally.
Erickson
v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
Liberally
construed,
Shell’s
Complaint
sets
forth
a
42
U.S.C. § 1983 (2012) claim for a violation of the Fourteenth
Amendment’s guarantee of procedural due process.
To prevail on
a
demonstrate
42
U.S.C.
§
1983
claim,
a
plaintiff
must
a
deprivation of rights guaranteed by the Constitution or laws of
the United States and that the alleged deprivation was committed
by a “person” acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
42 U.S.C § 1983;
States, however, are
not “persons” subject to liability under 42 U.S.C § 1983.
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Will
Thus,
because he names only the State of Virginia as a Defendant,
Shell fails to state a claim on which relief may be granted.
B.
Shell’s Motion to Appoint Counsel
Under 28 U.S.C. § 1915(e)(1) (2012), a district court may
appoint an attorney to represent any litigant unable to afford
3
counsel.
“In civil cases, however, the appointment of counsel
is allowed only where exceptional circumstances are presented.”
Inko-Tariah v. Lappin, No. 5:05-CT-585-H, 2006 WL 6907134, at *2
(E.D.N.C. Apr. 7, 2006) (citing Whisenant v. Yuam, 739 F.2d 160
(4th
Cir.
1984)),
aff’d,
346
F.App’x
915
(4th
Cir.
2009).
Because Shell names as the sole defendant in his suit, an entity
that cannot, as a matter of law, be liable for violating 42
U.S.C. § 1983, the Court finds no exceptional circumstances.
Should Shell refile his Complaint and name someone capable of
liability under 42 U.S.C. § 1983, the Court could consider a new
motion to appoint counsel at that time.
Based on the foregoing reasons, Shell’s Motion to Proceed
in Forma Pauperis (ECF No. 2) is GRANTED, his Motion to Appoint
Counsel
(ECF
Complaint
No.
(ECF
3)
No.
is
1)
DENIED
is
WITHOUT
DISMISSED
PREJUDICE,
WITHOUT
and
his
PREJUDICE.
A
separate Order follows.
Entered this 28th day of January 2016
/s/
________________________
George L. Russell, III
United States District Judge
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