El-Bey et al v. City of Raleigh Police Department et al

Filing 7

ORDER - The Court ADOPTS the Magistrate Judge's 4 ORDER. Although Plaintiff's 1 Motion to Proceed in forma pauperis and 2 Motion to Proceed in forma pauperis are ALLOWED, this matter is DISMISSED. Signed by District Judge Terrence W. Boyle on 8/18/11. (Tripp, S.)

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No.5:11-CV-275-BO

KHADIRAH MARCH' AT T. EL-BEY and )
ASARU ALIM N.T. EL-BEY,
)
Plaintiffs,
)
)
)
v.
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CITY OF RALEIGH POLICE
)
DEPARTMENT, 1.S. VARNELL,
)
DAVID SHELTON, A.J. MOSER, and
)
MJ. CORSO,
)
Defendants.
)
)

ORDER

This matter is before the Court on the Memorandum and Recommendation ("M & R") of
United States Magistrate Judge James E. Gates (DE # 4) regarding Plaintiffs motions to proceed
in forma pauperis (DE #1,2) and for frivolity review pursuant to 28 U.S.C. § 1915 (e)(2)(B).
The Court ADOPTS the M & R and DISMISSES Plaintiffs pro se complaint.
BACKGROUND
On October 7, 2007, the EI-Beys were in Raleigh, North Carolina to attend a religious
class. PI.' s CompI. at 2. As they turned into the parking lot oflnternational Cuts Barber Shop,
where the class was to take place, Officer Varnell of the Raleigh Police Department followed
them into the parking lot and approached their vehicle. Id. He said that he found their
"religious/indigenous" license plate "interesting," and wanted to ask them a few questions. Id.
The EI-Beys produced as identification their United Nations badges from the May 25th,
2007 Indigenous Permanent Forum as proof that they were "Public Ministers, Ambassadors,
Representatives and Diplomats" for the United Washitaw Indigenous Nation. Id. at 3. Asaru El­

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Bey also produced a "Right to Travel" affidavit, which was issued by the Clerk of the Superior
Court of Wake County, North Carolina. Id. Officer Varnell questioned the validity of the
documents. Id. After approximately ten minutes, several other police cars arrived. Id.
By this time, a group of people had assembled outside of the barber shop. Id. Some
moments later, the officers drew their weapons and ordered the group to stay on the curb while
they spoke to the EI-Beys. Id. Shortly thereafter, the EI-Beys were placed in handcuffs and
arrested. Id. They were cited for possession of false identification, displaying a fictitious
registration and license plate, and failure to disperse. Id. The EI-Beys posted bond and were
released. Id. The charges were ultimately dismissed on March 9,2009. Id.
The EI-Beys filed a complaint on November 29,2010 in the United States District Court
for the Eastern District of North Carolina, alleging that their civil rights were violated when they
were falsely arrested and imprisoned. Id. at 4. That complaint was dismissed on March 28, 2011
by this Court, pursuant to a frivolity review on the grounds that the complaint failed to state
claims under 42 U.S.c. § 1981, Article VI of the United States Constitution, and 18 U.S.C. §§
241,242, and 1964, and that the EI-Beys' claims under 42 U.S.c. § 1983, § 1985, and § 1986
were untimely. Id.; Moorish Holy Temple o/Science o/the World, Temple 2 v. 1.8 Varnell, No.
5:1O-CV-00548-BO (E.D.N.C. April 4, 2011) (order adopting Memorandum and
Recommendation of Magistrate Judge).
The EI-Beys then filed this action, alleging violations of their constitutional rights under
42 U.S.c. § 1983, which they articulate as violations by the Raleigh Police Department of their
"Constitutional Right to TraveL.pursuant to the First, Fourth, Fifth, and Fourteenth Amendments
of the United States Constitution." They seek $50,000 in compensatory damages and $50,000 in

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punitive damages.
DISCUSSION
The Court adopts the M & R because Plaintiffs have made only frivolous objections to it
and because the M & R is not clearly erroneous or contrary to law. 28 U.S.C. § 636 (b)(1)(B).
A complaint is frivolous if "it lacks an arguable basis either in law or fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). In making a frivolity determination, a court may designate a
magistrate judge to submit proposed findings of fact and recommendations. 28 U.S.C. § 636
(b)(1 )(B).
A district court is only required to review an M & R de novo if the plaintiff specifically
objects to it or in cases of plain error. Jd.; Thomas v. Am 474 U.S. 140, 149-50 (1985). By
contrast, de novo review is not required when an objecting party makes only general or
conclusory objections that do not direct a court to a specific error in the Magistrate Judge's
proposed findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)
(citing United States v. Mertz, 376 U.S. 192 (1964)). Further, when "objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record may be
dispensed with. Orpiano, 687 F.2d at 47. Here, Plaintiffs contest only the operation of equitable
tolling and do not contest any of the Magistrate Judge's proposed factual findings (DE #6).
In this case, the Magistrate Judge committed no plain error. The M & R properly found
that Plaintiffs' claims under § 1983 are time barred.
Although the Plaintiffs timely objected to the M & R, their assertion that the "discovery
rule" applies to their claims and requires equitable tolling is without merit. Section 1983 actions
are subject to the relevant state's statute of limitations for personal injury torts. Wallace v. Kato,

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549 U.S. 384, 387 (2007). In North Carolina, the relevant statute of limitations is three years.
N.C. Gen. Stat. § 1-52 (5). An action accrues "when the plaintiff possesses sufficient facts about
the harm done to him that reasonable inquiry will reveal his cause of action." Smith v.

McCarthy, 2009 WL 3451714, at *3, 349 Fed. App 'x 851 (4th Cir. Oct. 28, 2009), cert. denied,
131 S. Ct. 81 (2010). A claim for false arrest or false imprisonment accrues when the wrongful
arrest and detention occur. Id. (citing Wallace, 549 U.S. at 388). In this case, the EI-Beys were
arrested on October 7, 2007, and the statute of limitations begins to run from that date. See id.
As a result, the statute oflimitations ran on October 7, 2010 as to the EI-Beys' § 1983 claims
based on false arrest or false imprisonment. Because the EI-Beys first filed their informa

pauperis applications and proposed complaint on November 29, 2010, the § 1983 claims are time
barred. There is no basis to apply equitable tolling in this case. Therefore, the Plaintiffs'
objection is unresponsive to the Magistrate Judge's legal and factual conclusions and the Court
adopts the Magistrate Judge's recommendations.
CONCLUSION
The Court ADOPTS the Magistrate Judge's recommendations (DE # 4). Although
Plaintiffs' motions to proceed in forma pauperis are ALLOWED, this matter is DISMISSED.

SO ORDERED.

This

~ay of August, 2011.

TERRENCE W. BOYLE
UNITED STATES DISTR CT JUDGE

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