Sorensson v. State of North Carolina et al

Filing 44

ORDER granting 37 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims against defendants Willis and Thomas are DISMISSED for failure to state a claim upon which relief can be granted. The clerk is direct ed to terminate defendants Willis and Thomas as parties in this case. Plaintiff's claims against defendants Carteret County, Buck, and Enderle may proceed as set forth in the courts July 7, 2022, order; accordingly, the court LIFTS the stay ente red October 31, 2022. The remaining parties are DIRECTED, according to the requirements set forth in the court's September 16, 2022, order, to hold a Rule 26(f) conference within 21 days after entry of this order and to file a joint report and p lan within 14 days after the conference. Signed by District Judge Louise Wood Flanagan on 5/18/2023. A copy of this Order was sent via US mail to Karolina Sorensson at 511 N. Queen St., Apt #6-G, Kinston Towers, Kinston, NC 28501 (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:21-CV-094-FL
KAROLINA SORENSSON,
Plaintiff,
v.
AUGUST WILLIS, IV, a/k/a Gus, Assistant
District Attorney, ASA BUCK, Sheriff,
SCOTT THOMAS, District Attorney,
SHAWNA ENDERLE, Deputy Sheriff,
CARTERET COUNTY,
Defendants.

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ORDER

This matter is before the court on motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed by defendants Scott Thomas and August Willis, IV.
(DE 37). The issues raised are ripe for ruling. For the following reasons, the motion is granted.
STATEMENT OF THE CASE
Pro se plaintiff initiated this action July 9, 2021, by filing a motion for leave to proceed in
forma pauperis under 28 U.S.C. § 1915, along with a complaint relying on handwritten
descriptions of information on a USB drive.1 Upon notice from the clerk of deficiencies in her
filing, plaintiff filed documents entitled “Motion for Leave to Manually File USB,” “Statement of

1

Plaintiff has litigated a number of other cases in this district: 4:16-cv-298-BO (closed December 21, 2018);
4:17-cv-00067-D (closed July 17, 2018), 4:18-cv-00042-D (closed July 17, 2018), 4:19-cv-00166-FL (closed February
18, 2022); 4:22-cv-00013-FL (closed August 29, 2022); 4:23-cv-00002-FL (filed January 11, 2023); 4:23-cv-00011FL (filed February 1, 2023).

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Case,” “Motion to Appoint Counsel,” “Short and Plain Statement of Plaintiff Karolina Sorensson
Claims,” and “To Whom it May Concern.”
By order and memorandum and recommendation (“M&R”), Magistrate Judge Kimberly
A. Swank allowed plaintiff to proceed in forma pauperis, and, on frivolity review, considering
plaintiff’s complaint and all documents theretofore filed by her, recommended that the following
be allowed to proceed: claims under 42 U.S.C. § 1983 and the Fourth Amendment against Shawana
Enderle (“Enderle”); claims under the Fourteenth Amendment’s due process clause against Asa
Buck (“Buck”) and Carteret County; and claims for selective prosecution under the Fourteenth
Amendment’s equal protection clause against the State of North Carolina, Scott Thomas
(“Thomas”), August Willis (“Willis”), Carteret County, Buck, and Enderle. The magistrate judge
denied plaintiff’s motion to file a USB drive and her motion to appoint counsel.
After obtaining an extension of time, plaintiff filed objections to the M&R. The court
adopted in part and rejected in part the M&R by order entered July 7, 2022, dismissing plaintiff’s
selective prosecution claim against defendant North Carolina but allowing all other claims deemed
not frivolous by the magistrate judge to proceed. The clerk again entered plaintiff’s complaint on
the docket.
After obtaining extensions of time, defendants Buck, Carteret County, and Enderle
answered the complaint and defendants Thomas and Willis filed the instant motion to dismiss.
The court entered an initial order under Fed. R. Civ. P. 26(f) governing conference activities, initial
disclosures, and the parties’ joint status report and proposed discovery plan. Defendants Thomas
and Willis filed a motion to stay case scheduling activities pending the court’s ruling on the instant
motion to dismiss in which all defendants joined; however, plaintiff opposed. The court granted
the motion and stayed case activities October 31, 2022.

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STATEMENT OF FACTS
The relevant facts alleged in plaintiff’s operative complaint2 may be summarized as
follows. Plaintiff is a United States citizen and a native of Nicaragua. (See DE 6 at 9). On July
27, 2019, defendant Enderle arrested plaintiff for alleged misuse of the 911 system, and plaintiff
vomited during the arrest. (See DE 6 at 7; DE 17-1 at 8-10). Plaintiff subsequently faced criminal
charges for malicious conduct by a prisoner and misuse of the 911 system. (See DE 38-1 at 15).
Defendant Thomas was the Carteret County District Attorney, and defendant Willis is an
assistant district attorney who was assigned to prosecute the case against plaintiff. (See DE 17-1).
According to the complaint, defendant Willis presented plaintiff’s criminal defense attorney with
a plea bargain that required plaintiff to purchase a one-way ticket to Nicaragua, and plaintiff
accepted. (See DE 17-1). Subsequently, plaintiff’s malicious conduct by prisoner charge was
dismissed, (DE 11 at 3), and plaintiff entered a no contest plea to the misuse of 911 system charge.
(DE 38-1 at 22).
COURT’S DISCUSSION
A.

Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).3
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well2

Due to plaintiff’s pro se status, the court construes documents filed by plaintiff on July 21, 2021, (DE 6), July
27, 2021, (DE 8), and September 3, 2021, (DE 11) as amendments to her complaint at DE 17 and considers them for
purposes of the motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be
liberally construed.”). Additionally, the court summarizes in this order only those facts relevant to the instant motion,
leaving out plaintiff’s allegations against other defendants.
3

Throughout this order, internal quotation marks and citations are omitted unless otherwise specified.

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pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not
consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). In
considering a Rule 12(b)(6) motion, a court “may consider the complaint itself and any documents
that are attached to it,” CACI International, Inc. v. St. Paul Fire & Marine Insurance Co., 566 F.3d
150, 154 (4th Cir. 2009), and may “properly take judicial notice of matters of public record.”
Phillips v. Pitt County Memorial Hospital, 572 F.3d 176, 180 (4th Cir. 2009).
B.

Analysis
Plaintiff does not allege facts that, if true, would support a claim for selective prosecution.

As the court noted in its previous order, a “selective prosecution” claim is premised on equal
protection principles flowing from the United States Constitution, United States v. Armstrong, 517
U.S. 456, 463 (1996), which require that “a decision to prosecute a particular criminal case may
not be based upon an unjustifiable factor such as race, religion, or another arbitrary classification.”
United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997).
The standard for alleging a selective prosecution claim “is intended to be a demanding and
rigorous one” where there is a “great danger of unnecessarily impairing the performance of a core
executive constitutional function and the presumption of regularity that supports prosecutorial
decisions.” United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996). “The claimant must
demonstrate that the . . . prosecutorial policy had a discriminatory effect and that it was motivated
by a discriminatory purpose.” Armstrong, 517 U.S. at 465. “This requires the [party alleging
selective prosecution] to establish both that similarly situated individuals of a different race were
not prosecuted and that the decision to prosecute was invidious or in bad faith.” Olvis, 97 F.3d at

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743; see also Evans v. Britt, No. 7:13–CV–126–FL, 2015 WL 2450547 (E.D.N.C. May 21, 2015)
(holding that “plaintiff’s conclusory allegations of discrimination [were] insufficient to establish a
selective prosecution claim.”). “Defendants are similarly situated when their circumstances present
no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial
decisions with respect to them.” Id. at 744. Plaintiff’s complaint fulfills neither requirement.
1.

Similarly Situated Requirement

Plaintiff has not alleged facts giving rise to an inference that other similarly situated
individuals were not prosecuted. She alleges in a letter to the court,
[a]dditionally, to continue demonstrating the bias and discrimination of the defendants,
someone, or some people called and misused the 911 system in Carteret County, yet
Carteret Co[unty] [s]heriff and the 911 system never arrested these [c]aucasian individuals
that called pranking 911 300 times! I should have the article by reputable TV media
resources. The incident of the 300 prank calls to Carteret Co[unty] 911 . . . happened
between the year I was being maliciously prosecuted and discriminated against by
defendants.
(DE 17 at 16) (emphasis removed). Plaintiff does not identify any individuals who called 911
without a valid reason, and she alleges no facts that support an inference that such individuals
would not be prosecuted. Plaintiff’s opposition brief does not address this requirement, (see DE
43 at 5), and though her complaint calls the 911 charge “bogus,” plaintiff does not specify any
individual who misued 911 within the relevant time frame and was not charged. (DE 17 at 13).
Accordingly, plaintiff’s claim against defendants Thomas and Willis must be dismissed.
2.

Invidiousness or Bad Faith Requirement

In addition and in the alternative, plaintiff has not shown that the decision to prosecute her
was invidious or in bad faith. Plaintiff alleges that defendant Willis and her own attorney “pushed
[her] to purchase a one way ticket to [her] place of birth, Managua, Nicaragua” as a condition of
having her charges dropped. (DE 17 at 13) (emphasis removed). Plaintiff states in addition, “they

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were deporting a US citizen (myself), although I did not have prior charges and [defendant] Willis
stated that I was a persona non grata.” (Id. at 14) (emphasis removed). Construing the complaint
liberally, the court interprets these allegations as an attempt to show that defendants Willis and
Thomas decided to prosecute plaintiff in order to effect her removal from the country.
Plaintiff submitted one email from defendant Willis for the court’s consideration. That
email, addressed to plaintiff’s criminal defense attorney and dated April 14, 2020, states in its
entirety,
My thought on this case is to offer a plea to a class two RDO. I’d be fine with unsupervised
probation in light of her treatment and plans to move out of state. We can do it most any
day – just let me know your availability.
(DE 11-1). Plaintiff also submitted for the court’s consideration several emails in which her
criminal defense attorney explains both that defendant Willis offered to allow plaintiff “to plead
guilty to [a misdemeanor] [m]isuse of 911 [s]ystem in lieu of the felony [m]alicious [c]onduct by
[p]risoner charge,” (DE 11 at 7), if she could “produce a one-way plane ticket out of the country,”
(id.), and his “reason for the unconventional offer.” (DE 17-4 at 4). According to plaintiff’s
attorney, plaintiff “wanted to go to family in Nicaragua,” (DE 11 at 7), and defendant Willis
“wanted to facilitate that.” (DE 17-4 at 4). Plaintiff’s attorney explained further that everyone
involved understood that plaintiff is “a US citizen,” (DE 11-4), and that if plaintiff chose to remain
in the United States the state simply would “insist on supervised probation,” (DE 11 at 6), during
which time plaintiff “would not be able to leave the country at all.” (DE 11-4).
Set against the factual backdrop provided by plaintiff’s submissions to this court,
particularly the state’s offer to place plaintiff on supervised probation if she elected to remain in
Carteret County, plaintiff’s claim that defendants Thomas and Willis targeted her for prosecution
in order to remove her from this country is an “unreasonable conclusion” that this court “need not

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accept as true.” Nemet Chevrolet, Ltd., 591 F.3d at 253. Accordingly, her claim for selective
prosecution against defendants Thomas and Willis must be dismissed.
Plaintiff argues in her opposition brief that the “obsession of the defendants to intimidate
[her] and use [her] ethnicity and nationality and nationality against [her] shows their malicious
prosecution.” (DE 43 at 4). The documents attached to the complaint, however, do not show any
effort to intimidate plaintiff, and plaintiff has alleged no facts that would support such an inference.
This argument therefore is without merit.
CONCLUSION
Based on the foregoing, the motion to dismiss filed by defendants Willis and Thomas is
granted. (DE 37). Plaintiff’s claims against defendants Willis and Thomas are DISMISSED for
failure to state a claim upon which relief can be granted. The clerk is directed to terminate
defendants Willis and Thomas as parties in this case. Plaintiff’s claims against defendants
Carteret County, Buck, and Enderle may proceed as set forth in the court’s July 7, 2022, order;
accordingly, the court LIFTS the stay entered October 31, 2022. The remaining parties are
DIRECTED, according to the requirements set forth in the court’s September 16, 2022, order, to
hold a Rule 26(f) conference within 21 days after entry of this order and to file a joint report and
plan within 14 days after the conference.
SO ORDERED, this the 18th day of May, 2023.
__________________________________
LOUISE W. FLANAGAN
United States District Judge

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