McNeish v. Deavers et al

Filing 12

ORDER ADOPTING 7 Memorandum and Recommendations, written by US Magistrate Judge Robert B. Jones, Jr. The Court has adopted the Magistrate Judge's recommendations and the plaintiff's complaint is dismissed in its entirety. The clerk is directed to enter judgment accordingly and close this case. Signed by US District Judge Terrence W. Boyle on 11/20/2013. Copy mailed to pro se plaintiff via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-304-BO
ANTHONY MCNEISH,

)
)

Plaintiff,
v.

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)
)

ORDER

DUANE DEAVERS, JAMES R. PARISH, )
)
ELAINE KELLY, ED GRANNIS, G.
ROBERT HICKS, III,
)
)

Defendants.

)
___________________________ )

This matter is before the Court on the Memorandum and Recommendation ("M&R") of
United States Magistrate Judge Robert R. Jones, Jr. [DE 7]. For the following reasons, the Court
ADOPTS the M&R. Plaintiffs claims are DISMISSED in their entirety.

BACKGROUND
Plaintiff Anthony McNeish, an inmate in the custody ofthe State ofNorth Carolina, filed
this action pro se, pursuant to 42 U.S.C. § 1983, against defendants alleging that they conspired
to criminally convict plaintiff in violation of his Constitutional rights. Plaintiff seeks monetary
damages in the amount of $1 million from each defendant and release from custody. Magistrate
Judge Jones, in his M&R of September 16, 2013, recommended that plaintiffs claims be
dismissed for failure to state a claim.

DISCUSSION
A district court is required to review an M&R de novo if the plaintiff specifically objects
to it or in cases of plain error. 28 U.S.C. ' 636(b)(1)(B); Thomas v. Arn, 474 U.S. 140, 149-50
(1985). The district court is only required to make a de novo determination of those specific

findings to which the plaintiff has actually objected. See Camby v. Davis, 718 F.2d 198,200 (4th
Cir. 1983). Here, plaintiff has restated his original complaint, insisting that his rights were
violated and that what he claims is true. This Court will review plaintiffs complaint de novo for
failure to state a claim. Notably, plaintiff does not argue that his claim is not barred by the statute
of limitations, and this Court finds no plain error in the M&R as to the statute of limitations.
In order to state a claim on which relief may be granted, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face." Aschcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). "Factual allegations must be enough to raise a right to relief above the speculative level.
... " Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations,

the plaintiff must allege more than labels and conclusions. Id. In the present case, plaintiff is
proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard
than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is
charged with liberally construing a pleading filed by a pro se litigant to allow for the
development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106
(1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However the principles requiring
generous construction of pro se complaints are not without limits; the district courts are not
required "to conjure up questions never squarely presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Plaintiff alleges that his state court conviction was unconstitutional, because it was
obtained through a conspiracy by his defense attorney, the district attorney's office, and a North
Carolina State Bureau of Investigation Crime Lab Analyst to coerce plaintiff to enter into a plea
agreement. "[T]o recover money damages for an allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a section 1983 plaintiff must show that the underlying conviction
has been reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal, or called into question by a federal court's issuance of a writ ofhabeas corpus." Heckv.

Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff is currently incarcerated for the conviction at
issue here which shows that plaintiffs conviction or sentence has not been reversed or otherwise
invalidated. Therefore he may not proceed with his claim pursuant to § 1983. See Thrash v.

Cloud, 2011 WL 9134011, at *2 (E.D.N.C. Aug. 30, 2011), aff'd, 466 F. App'x 203 (4th Cir.
Feb. 22, 2012).
Additionally, plaintiff may not obtain release from custody pursuant to § 1983. To the
extent plaintiff seeks release, subject to exhausting state court remedies, a petition for writ of
habeas corpus is the appropriate avenue for such relief. See Preiser v. Rodriguez, 411 U.S. 475,
490 (1973) ("Congress has determined that habeas corpus is the appropriate remedy for state
prisoners attacking the validity of the fact or length of their confinement, and that specific
determination must override the general terms of§ 1983."). Accordingly, plaintiff has failed to
state a claim upon which relief may be granted and his complaint must be dismissed.
CONCLUSION

Therefore, the

Court ADOPTS the Magistrate Judge's

recommendations and

DISMISSES plaintiffs complaint in its entirety. The clerk is directed to enter judgment
accordingly and close the file.
SO ORDERED,
this rO day ofNovember, 2013.
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDG

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