McDonald v. Sites et al

Filing 8

ORDER adopting 4 Memorandum and Recommendations. Signed by Chief Judge Terrence W. Boyle on 6/14/2019. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:19-CV-164-BO
JAMIE LEE MCDONALD,
Plaintiff,

v.
OFFICER J. SITES, et al.,
Defendants.

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ORDER

This cause comes before the Court on the memorandum and recommendation by United
States Magistrate Judge Robert T. Numbers, IL [DE 4]. On May 20, 2019, Judge Numbers
recommended that plaintiff be permitted to proceed in forma pauperis but that her claims be
dismissed. Id. Plaintiff has objected to the M&R and the matter is ripe for review. For the reasons
that follow, the M&R is ADOPTED.
BACKGROUND
In April 2019, plaintiff filed a prose application to proceed informapauperis under 28
U.S.C. § 1915. [DE 1]. Plaintiff claims that defendants violated her Fourth, Fifth, and Fourteenth
Amendments rights. In particular, she claims that defendant Blake Alan Pokopec falsely told police
that plaintiff had stolen a 2004 Toyota Prius from him when, in fact, plaintiff had purchased the
car from Pokopec. [DE 1-1, p. 5]. Plaintiff claims that although she had paperwork that would
have proven that she'd purchased the car, defendant Sites arrested her anyway. Id. Plaintiff alleges
that she "filed a formal complaint" with the Apex police department and then "filed a complaint
with the Internal Affairs Section," but her appeals were ultimately unsuccessful. Id.

In May 2019, Judge Numbers entered the instant memorandum and recommendation
(M&R), granting plaintiffs application to proceed in forma pauperis and recommending that
plaintiffs claims be dismissed for failure to state a claim upon which relief can be granted. [DE
4]. Plaintiff has objected to the M&R, reiterating her belief that her cdnstitutional rights were
violated and arguing that dismissal would be premature. [DE 7].
DISCUSSION
A district court is required to review de nova those portions of an M&R to which a party
timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(l); Thomas v. Arn,
474 U.S.140, 149-50 (1985). "[I]n the absence of a timely filed objection, a district court need
not conduct de nova review, but instead must only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation." Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation and citation omitted). Here, the Court
construes plaintiffs response as a timely, specific objection to the finding that she has not alleged
sufficient facts to state a claim upon which relief can be granted.
When considering a motion to dismiss under Rule 12(b)(6), "the court should accept as
true all well-pleaded allegations and should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must state
a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged," as
merely reciting the elements of a cause of action with the support of conclusory statements does
not suffice. Iqbal, 556 U.S. at 678. The Court need not accept the plaintiffs legal conclusions

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drawn from the facts, nor need it accept unwarranted inferences, unreasonable conclusions, or
arguments. Philips v. Pitt County Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiffs claims can be separated into two groups. First, plaintiffs claims against the
defendant officers must be dismissed. Plaintiff has sued each of the defendant officers in their
official, rather than individual, capacities. As such, her claims against each officer are actually

claims against the Town of Apex. See Kentucky v. Graham, 473 U.S. 159, 165-66 (198~). In order
to proceed under 42 U.S.C. § 1983 against a municipality like Apex, a plaintiff must demonstrate
that the alleged constitutional injury is attributable to one of the munipality's official policies,
procedures, or customs. See Monell v. Dep 't of Soc. Servs. of City of NY, 436 U.S. 658, 694
(1978). Plaintiff has not alleged that the defendant officers' alleged violations of her constitutional
rights were the product of some official Apex policy, procedure, or custom. As such, plaintiff has
not alleged sufficient facts to state a claim against the defendant officers, and her claims against
each must be dismissed without prejudice.
Second, plaintiffs claims against defendant Pokopec must also be dismissed. To prevail
on a § 1983 claim against an individual, a plaintiff "must show that the alleged deprivation was
committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
Here, there is no indication that Pokopec was acting under color of state law when he filed the
police report against plaintiff. A private citizen does not become a state actor simply by filing a
police report. See, e.g., Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) ("The mere
furnishing of information to police officers does not constitute joint action under color of state law
which renders a private citizen liable under§ 1983 .... ").Because Pokopec was not a state actor,
he may not be sued under§ 1983, and plaintiffs claims against him must be dismissed.

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The Court has reviewed the M&R and is satisfied that there is no clear error on the face of
the record. Plaintiff has failed to allege sufficient facts to state a claim upon which relief can be
granted under Rule 12(b)(6). Accordingly, the memorandum and recommendation is ADOPTED.
CONCLUSION
The memorandum and recommendation of Magistrate Judge Numbers [DE 4] is
ADOPTED and plaintiffs complaint is DISMISSED WITHOUT PREJUDICE.

SO ORDERED, this j_!/day of June, 2019.

TE
NCE W. BOYLE
CHIEF UNITED STATES DISTRICT J

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