Gerrick v. N.C. Legislation et al

Filing 8

ORDER DISMISSING CASE: Plaintiff's claims are dismissed in their entirety for failing to state a claim under which relief can be granted. This matter is now closed. Signed by US District Judge Terrence W. Boyle on 12/9/2014. Copy mailed to pro se plaintiff, via US Mail, to Southern Correctional Institution, 272 Glen Road, Troy, NC, 27371. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5: 14-CV-664-BO
BRUCE H. GERRICK,
Plaintiff,
v.

CUMBERLAND COUNTY MUNICIPALITY,
CLERK OF SUPERIOR COURT OF
CUMBERLAND COUNTY,
and OFFICER SHATTUCK in his
individual and official capacity,
Defendants.

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ORDER

This matter is before the Court for frivolity review pursuant to 28 U.S.C. § 1915A. For
the reasons stated below, the matter is DISMISSED.
BACKGROUND
Plaintiff filed a civil rights action under 42 U.S.C. § 1983 for violations ofhis Sixth,
Eighth, and Fourteenth Amendment rights stemming from an alleged failure to deliver a letter
containing a notice of appeal of his state court sentence for Aggravated Level 1 Driving While
Impaired. Plaintiff names as defendants Cumberland County Municipality, by which he
apparently means the City of Fayetteville, the Clerk of Court for both Cumberland County
District and Superior Courts, and Officer Shattuck. [DE 1-1, ~5-7]. Plaintiff seeks a declaration
from the Court that the acts and omissions described in his complaint violated his Constitutional
rights, compensatory and punitive damages, and costs taxed to defendants.
DISCUSSION
Where, as here, a prisoner seeks redress from a governmental officer in a civil action the
Court must review the complaint and dismiss the complaint if it is frivolous, malicious, fails to

state a claim upon which relief can be granted, or seeks monetary relief from an immune
defendant. 28 U.S.C. § 1915A. A case is frivolous if it "lacks an arguable basis in either law or
fact." See Nietzke v. Williams, 490 U.S. 319,325 (1989) (superseded by statute on other
grounds). A complaint shall also be dismissed where a party seeks "monetary relief against a
defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(iii). As explained below,
the action is dismissed as frivolous.
While as a municipality, the City of Fayetteville may be a proper defendant in a § 1983
action, plaintiff fails to state a claim against it. Plaintiff alleges that the City of Fayetteville has
liability apparently on the grounds that it is responsible for the actions of its employees.
However, liability cannot rest on respondeat superior in§ 1983 cases. See Boswell v. Bullock,
2012 WL 2920036, at *11 (E.D.N.C. July 17, 2012) ("Although a local government entity may
be held liable under § 1983, it is well settled that a local government entity cannot be held liable
under§ 1983 on a respondeat superior theory") (citing Monell v. Dep 't of Social Servs., 436
U.S. 658, 690-91)). Accordingly, plaintiff has failed to state a claim against the City of
Fayetteville, and this claim must be dismissed.
When an officer is sued in his official capacity, the suit is treated as a claim against the
governmental unit employing him, in this case the City of Fayetteville. However, in an action
against a governmental entity claiming violations of§ 1983, the governmental entity is only held
liable for constitutional deprivations that result from the entity's policies or customs. Monell, 436
U.S. at 694. Here, plaintiff does not mention any sort of governmental policy or custom and
therefore his claims against Officer Shattuck and the Clerks of Superior and District Court in
their official capacities fail to state a claim and must be dismissed.

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To the extent that plaintiff is pursuing claims for damages based on individual liability,
plaintiff has not pled facts sufficient to sustain such claims. Plaintiff makes no factual allegations
that support a claim against the Clerk of District Court. At no point during his recitation of facts
does plaintiff even mention the Clerk of District Court. Plaintiff's claims against Officer
Shattuck and the Clerk of Superior Court appear to allege negligent behavior; he has not pled any
facts that imply either deliberate indifference or any higher level of intent. Acts of negligence,
however, do not implicate the Due Process Clause such to give rise to a claim under§ 1983. See
Daniels v. Williams, 474 U.S 327, 328 (1986); see also Davidson v. Cannon, 474 U.S. 344, 348
(1986). Accordingly, plaintiff's claims against Officer Shattuck and both Clerks of Court in their
individual capacities are dismissed.
For the foregoing reasons, plaintiff's claims are DISMISSED in their entirety for failing
to state a claim under which relief can be granted. The Clerk is DIRECTED to close the file.
SO ORDERED, this the

_!i_ day of December, 2014.

T RENCE W. BOYLE
UNITED STATES DISTRICT JU

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