Sullivan v. McCrory, et al

Filing 41

ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 36 Motion to Amend/Correct; granting 7 Motion to Dismiss for Lack of Jurisdiction; granting 16 Motion to Dismiss. Signed by Chief Judge James C. Dever III on 12/15/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DMSION
No. 7:16-CV-46-D

LTC DONALD SULLIVAN,
Plaintiff,
v.
PAT MCCRORY, et al.,
Defendants.

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ORDER

On March 18, 2016, Lt. Col. Donald Sullivan ("plaintiff' or "Sullivan"), proceeding pro se,
filed a complaint under 42 U.S.C. §§ 1983 and 1985 and North Carolina law against twelve
defendants, including North Carolina Governor Pat McCrory, North Carolina Attorney General Roy
Cooper, New Hanover County District Attorney Ben David and Assistant District Attorney Lindsay
Roberson, New Hanover County Sheriff Ed McMahon, Wake County District Attorney Lorrin
Freeman, and several members of the North Carolina Highway Patrol. Compl. [D.E. 1]. All
defendants have filed motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and/or (6) [D.E. 7, 16, 20]. Pursuantto Roseboro v. Garriso!!,528 F.2d 309,310 (4th Cir.
1975) (per curiam), the court notified Sullivan about the motions, the consequences of failing to
respond, and the response deadlines [D.E. 9, 22]. Sullivan moved to amend his complaint and
requested a stay on responding to defendants' motions until the court ruled on the motion to amend
[D£. 19]. On October 11, 2016, the court granted Sullivan's motion to amend, and directed Sullivan
to file any response in opposition to the motions on or before October 24, 2016 [D.E. 35]. Sullivan
chose to file a second motion to amend in lieu of any response in opposition [D.E. 36]. Defendants

responded in opposition to that motion [D.E. 37-38], and Sullivan replied [D.E. 39-40]. As
explained below, the court grants plaintiffs second motion to amend and grants defendants' motions
to dismiss.

I.
As for Sullivan's second motion to amend, Sullivan seeks: "1) [t]o correct an oversight in
the caption [to include an additional member of the State Highway Patrol, Major J.A. Cotton, as a
defendant]; 2) to eliminate the claims for damages; and 3) to replace said damage claims with
administrative remedies." Pl.'s Replies in Supp. 2d Mot. to Amend [D.E. 39-40] 1-2; see Compl.
~

12 (naming Cotton as a defendant); 2d Mot. to Amend [D.E. 36] 1. Thus, Sullivan's proposed

amendment does not materially change either his factual allegations or the pending motions.
See [D.E. 16] 1; [D.E. 38] 2. The court therefore grants Sullivan's second motion to amend.
Sullivan's complaint arises out of a traffic stop and citation which occurred on March 20,
2013.

Compl.

~

23.

Sullivan was driving "on a sparsely traveled country road" when he

"approached flashing blue lights from three State Highway Patrol units[.]" Id. Sullivan did ''not
seeD any signs of a license checking station;" therefore he did not stop until "one of the troopers
yelled for" him to do so. ld.
Defendant Phillips, aNorth Carolina Highway Patrolman, approached Sullivan's vehicle and
asked for his driver's license, which Sullivan produced. Compl. ~ 23. Phillips recognized Sullivan
"from a previous incident years earlier'' and asked whether Sullivan was a "sovereign" and had a gun
in the vehicle. ld. ~~ 23-24. Sullivan indicated that he had a gun in a holster on his hip and "made
the apparent mistake oftapping [his] thigh and looking toward the sidearm." ld. ~ 24. Phillips ''then
went ballistic, pulled out his sidearm and pointed it at [Sullivan's] face through the open window"
while commanding Sullivan to place his hands outside the window and "began yelling in a very

2

frightened voice to the other officers" for assistance and informed the other officers that Sullivan had
a gun and was "a 'sovereign."' 1 ld.
Sullivan contends that he "remained very still" and compliant with all of Phillips's orders,
while Phillips "looked really out of control. His hand was shaking like a leaf, and his fmger was on
the trigger." Compl.

~

26. Defendants Maness and Kirk "ran to assist Phillips who apparently

thought he needed help." ld. ~ 27. All three defendants kept their guns pointed at Sullivan's face
while ultimately removing Sullivan from his vehicle, handcuffing him, confiscating his "seven
hundred dollar sidearm, magazines and ammunition[,]" and searching Sullivan's vehicle without
requesting Sullivan's consent and over his objections. Id. ~~ 28-33.
Phillips issued Sullivan a misdemeanor citation for carrying a concealed weapon. Compl.
~

35. On September 17,2013, the New Hanover County District Court dismissed the charge "due

to [Sullivan's] objection to a trial on a citation[.]" Id. ~ 36. An assistant district attorney issued "a
'Statement of Charges"' to retry the case, and on October 14, 2013, ''the charge was again dismissed
by the court after [defendant] Assistant District Attorney Roberson had presented her entire case; and
[Sullivan] had cross-examined her witness[,]" defendant Phillips. Id. Defendants Roberson and
David again refiled the charge against Sullivan "on a 'Misdemeanor Criminal Summons[.]"' Compl.
~ 37.

The court rescheduled the hearing several times between December 2013 and November 2014.

1

Sullivan
admit[s] that [he is] the son of naturally born citizens, born in the sovereign State of
North Carolina, and the descendant of soldiers ofboth the Revolutionary War against
King George and the War of Northern Aggression against "King Abraham", and a
member of that "Posterity" cited in the Preamble to the Constitution of the United
States.
Compl. ~ 25. Sullivan contends, however, that he is "not a 'sovereign citizen' in the context
proffered by Phillips and as presented in the mandatory 'Sovereign Training' received by all law
enforcement officers of North Carolina in 2013." Id.

3

Id.-,-r,-r 37, 40. "In the meantime, unknown to [Sullivan] and forreasons unknown to [Sullivan], upon
information and belief, David had presented the charge to the grand jury, with Phillips again allowed
to testify. The grand jury issued an indictment based upon Phillips's perjured testimony, which
moved the case to superior court." Id. ,-r 40. After several motions hearings and other court
appearances, and further continuances of the trial between November 2014 and July 2015, an
assistant district attorney other than defendant Roberson informed Sullivan that she had "decided to
dismiss [the] case having determined that the state was barred from prosecuting [Sullivan] due to
double jeopardy having attached." Id. ,-r,-r 41-48. On July 9, 2015, defendant Pope returned
Sullivan's property seized during Sullivan's arrest. ld. ,-r 50.
Sullivan contends that defendant Phillips "committed ... several acts of criminal perjury by
repeatedly lying about the events of 3-20-13 under direct and cross examination." Compl. ,-r 36.
Between October 2013 and January 2016, Sullivan repeatedly and unsuccessfully attempted to
pursue criminal perjury charges against Phillips. See id. ,-r,-r 36--39, 50--67. Sullivan's efforts
included meetings with defendants David, Pope, and a deputy sheriff in defendant McMahon's
office, a written complaint "to the DPS-State Highway Patrol Internal Affairs ... office[,]" and
extensive correspondence with the offices of defendants David, McCrory, Cooper, and Freeman.
Id. & Exs. [D.E. 1-1 through -7] (copies ofletters Sullivan sent to various defendants and others).
Defendants Cotton and Pope closed their investigations. Id. ,-r,-r 38, 50. Defendants David and
Freeman declined to proceed with any criminal charges against Phillips. See id. mf 53-55, 66. A
captain in the New Hanover County Sheriffs Department, under the supervision of defendant
McMahon, met with Sullivan but declined to "investigate another state agency" and "said his office
would not take [Sullivan's] report, an obvious denial of [Sullivan's] right to the due process of the
law and equal treatment under the law." ld. ,-r 51. A representative from McCrory's office informed

4

Sullivan ''that the governor's office lacked jurisdiction to do anything to help." ld. ~52. Defendant
Cooper did not respond to Sullivan's letters. Id.

~~ 39.

Sullivan asserts violations of 42 U.S.C. §§ 1983 and 1985 and the North Carolina
Constitution. Compl.

~~

71-80. Sullivan sues all defendants in their individual and official

capacities and seeks "sanctions" and injunctive relief. Compare Compl. W59--60, 76, 81 with Pl.'s
2d Mot. to Amend [D.E. 36] 2-3.
II.

A motion to dismiss under Rule 12(b)(l) of the Federal Rules of Civil Procedure tests
subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the
case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see
Holloway v. Pagan River Dockside Seafood, Inc., 669 F .3d 448, 453 (4th Cir. 20 12). A federal court
"must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits
of that [claim]." Constantinev. Rectors & Visitors of George Mason Univ., 411 F.3d474, 479-80
(4th Cir. 2005). Sullivan, as the party asserting that this court has subject-matter jurisdiction, must
prove that subject-matter jurisdiction exists. See,~' Steel Co., 523 U.S. at 104; Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond. Fredericksburg & Potomac R.R. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). In considering a motion to dismiss for lack of
subject-matterjurisdiction, the court may consider evidence outside the pleadings without converting
the motion into one for suinmary judgment. Evans, 166 F.3d at 647.
A motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can
be granted" tests whether the complaint is legally and factually sufficient. See Fed. R. Civ. P.
12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Cor,p. v. Twombly, 550 U.S. 544,
570 (2007); Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct.

5

1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus,
551 U.S. 89,93-94 (2007) (per curiam). In considering amotion to dismiss, acourtneednotaccept
a complaint's legal conclusions drawn. from the facts. See, e.g., Iqbal, 556 U.S. at678. A court also
''need not accept as true unwarranted inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Moreover, a court
may take judicial notice of public records without converting a motion to dismiss into a motion for
summary judgment. See,~' Fed. R. Evid. 201; Tellabs. Inc. v. Mak:or Issues & Rights. Ltd., 551
U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
A.
Defendants assert that the Eleventh Amendment bars Sullivan's claims for monetary damages
against them in their official capacities. Mem. in Supp. Mot. to Dismiss [D.E. 8] 4-5; Mem. in
Supp. Highway Patrol Defs.' Mot. to Dismiss [D.E. 17] 4-6. The Eleventh Amendment provides:
"The Judicial power ofthe United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State ...." U.S.
Const. amend. XI. The Eleventh Amendment provides immunity from "suit in federal court by
private parties seeking to impose a liability which must be paid from public funds in the state
treasury." Quem v. Jordm 440 U.S. 332, 337 (1979); see Will v. Mich. Dep't of State Police, 491
U.S. 58, 66 (1989). The Eleventh Amendment also "protects state agents and state instrumentalities"
and confers an entitlement of "an immunity from suit rather than a mere defense to liability."
Constantine, 411 F .3d at 4 79, 482 (quotations and emphasis omitted). Absent waiver by the State
or a valid congressional override, the Eleventh Amendment bars an action for damages in federal
court against state agencies and other government entities that are characterized as "arm[s] of the
State." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,430 (1997) (quotation omitted). The bar

6

extends to heads of agencies sued in their official capacities. Will, 491 U.S. at 70-71; see Kentucky
v. Graham, 473 U.S. 159, 165-66 (1985). Thus, in their official capacities, all defendants are
immune from suit for monetary damages.

See,~'

Smith v. McCarthy, 349 F. App'x 851, 859 n.13

(4th Cir. 2009) (per curiam) (unpublished); Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.
2003); Lynn v. West, 134 F.3d 582, 587 (4th Cir. 1998).2

B.
As for defendants David, Freeman, and Roberson, prosecutors are absolutely immune when
carrying out the judicial phase of prosecutorial functions, including initiating a judicial proceeding
or appearing in court.

See,~'

Van de Kamp v. Goldsteill, 555 U.S. 335, 342 (2009); Buckley v.

Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler v. Pachtmm!, 424 U.S. 409, 431 (1976).
Sullivan's allegations against these defendants complain of actions taken within the scope of their
prosecutorial functions. Thus, the court dismisses Sullivan's claims against defendants David,
Freeman, and Roberson.

c.
As for Sullivan's individual-capacity claims, the court begins with any conspiracy claim
under42 U.S.C. § 1985. To state a claim, Sullivanmustplausiblyallege''thatthe [defendants] acted
jointly in concert and that some overt act was done in furtherance of the conspiracy which resulted
in [the plaintiff's] deprivation of a constitutional right." Hinkle v. City of Clarksburg, 81 F .3d 416,
421 (4th Cir. 1996). To show joint, concerted action, plaintiffs must, at minimum, provide "specific

2

Although ''the Eleventh Amendment permits suits for prospective injunctive relief against
state officials acting in violation of federal law," Frew ex rei. Frew v. Hawkins, 540 U.S. 431,437
(2004); Lee-Thomas v. Prince George's Cty. Pub. Sch., 666 F.3d244, 249 (4th Cir. 2012), Sullivan's
request for injunctive relief lacks merit. See,~' City of Los Angeles v. Lyons, 461 U.S. 95,
105-13 (1983). Thus, the court dismisses Sullivan's request for injunctive relief.
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circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial
objective." See id. Conclusory allegations of a conspiracy do not satisfy this "meeting ofthe minds"
element and therefore fail to state a claim. See,~' Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir.
1995); Gooden v. Howard Cty.• Md., 954 F.2d 960,970 (4th Cir. 1992) (en bane). Sullivan fails to
plausibly allege a "meeting of the minds" between any of the named defendants or any shared
objective of violating his constitutional rights. Cf. Iqbal, 556 U.S. at 677-84; Johnson v. City of
Fayetteville, 91 F. Supp. 3d 775,796-98 (E.D.N.C. 2015). Thus, Sullivan fails to state a claim under
section 1985.
"To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States, and 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); see
Filarsk:yv. Deli~ 132 S. Ct. 1657, 1661-62 (2012); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009). Additionally, a section 1983 plaintiff must allege the personal involvement of
a defendant.

See,~' Iqbal,

556 U.S. at 676; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-92

(1978); Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985). Negligence claims are generally not
actionable under section 1983.

See,~'

Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Pink

v. Lester, 52 F.3d 73, 77-78 (4th Cir. 1995). Moreover, section 1983 does not impose liability for
violations of duties of care arising under state law. See, ~' DeShaney v. Winnebago Cty. Dep't
of Soc. Servs., 489 U.S. 189,201--02 (1989V

3

Thus, to the extent Sullivan alleges that these defendants acted in a "grossly negligent"
manner, Compl. ~~ 73-74, he fails to state a claim under section 1983. See Carter v. Baltimore Cty..
Md., 95 F. App'x 471,476 (4th Cir. 2004) (per curiam) (unpublished).

8

Sullivan challenges his detention, his arrest, and the seizure of his firearm in the course of
the traffic stop by defendants Phillips, Maness, and Kirk. Compl. Count I [D.E. 1] ~~ 73-76. "The
temporary detention of an individual during a traffic stop, even if only for a limited time or purpose,
constitutes aFourth.Amendment seizure." Norton v. Rosier, 638 F. App'x 204,206 (4th Cir. 2016)
(per curiam) (unpublished); Whren v. United States, 517 U.S. 806, 809-10 (1996). The court
evaluates Sullivan's detention under Terry v. Ohio, 392 U.S. 1, 19-20 (1968). Thus, defendants'
actions in stopping Sullivan must be 'justified at [the] inception," and their subsequent questioning
and search "reasonably related in scope to the circumstances which justified the interference in the
first place." Thiry, 392 U.S. at 20; see Norton, 638 F. App'x at 206; United States v. Greeg, 740
F.3d 275, 279 (4th Cir.), cert. denied, 135 S. Ct. 207 (2014).
As for the first prong under Thiry, the United States Supreme Court has upheld traffic
checkpoints in "limited circumstances" as constitutional. See City of Indianapolis v. Edmond, 531
U.S. 32, 37-39 (2000) (checkpoint to verify drivers' licenses and vehicle registrations is
permissible);4 Mich. Dep't of State Police v. Sitz, 496 U.S. 444,455 (1990) (sobriety checkpoint is
permissible); United States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976) (immigration
checkpoint is permissible). Moreover, Sullivan has not alleged any circumstances rendering his
initial stop unconstitutional. Cf. Nortog, 638 F. App'x at 206. Furthermore, Sullivan's allegations
demonstrate that defendants were justified in further detaining and ultimately arresting Sullivan
based on Sullivan's apparent attempt to avoid the checkpoint, Phillips's recognition of Sullivan from
a prior encounter, and Sullivan's ·conduct in response to Phillips's question concerning possessing

4

Although Sullivan's allegations do not make the circumstances of his initial stop entirely
clear, it appears that defendants Phillips, Kirk, and Maness were conducting a checkpoint for drivers'
licenses. See [D.E. 1-6] 2.

9

a weapon. See,

~'

Thrry, 392 U.S. at 27; Arizona v. Johnso!l, 555 U.S. 323, 327, 333 (2009);

United States v. Paetsch, 782 F.3d 1162, 1173-76 (lOth Cir.), cert. denied, 136 S. Ct. 195 (2015);
United States v. Bell, 483 F. App'x 716,718 (3d Cir. 2012) (unpublished); United States v. Lewis,
674 F.3d 1298, 1305--06 (11th Cir. 2012); United States v. Smith, 396 F.3d 579, 584-85 (4th Cir.
2005). Sullivan's allegations concerning defendants' subjective motivations and false testimony do
notalterthecourt's analysis. See Whre!l, 517U.S. at 812; Masseyv. Ojaniit, 759 F.3d343, 354-56
(4th Cir. 20 14). Sullivan also has failed to state a claim concerning being handcuffed in the course
of his arrest absent any allegation that defendants used excessive force or injured Sullivan in some
way. See,~' Graham v. Connor, 490 U.S. 386,396 (1989); Young v. Prince George's Cty.. Md.,
355 F.3d 751,755 (4thCir. 2004); Brown v. Gilmore, 278 F.3d 362,369-70 (4th Cir. 2002); Carter
v. Morris, 164 F.3d 215,219 n.3 (4th Cir. 1999); N.C. Gen. Stat.§ 15A-401(d). Finally, the court
rejects any claim based on the confiscation of Sullivan's fuearm and ammunition in the course of
his arrest, where the police returned the firearm and ammunition to him following the dismissal of
the criminal charges. See Rodgers v. :Knight, 781 F.3d 932,941-42 (8th Cir.), cert. denied, 136 S.
Ct. 232 (2015); Meeks v. Larse!l, 611 F. App'x 277,286 (6th Cir. 2015) (per curiam) (unpublished);
Dunkelbergerv. Dunkelberger, No. 14-CV-3877 (KMK), 2015 WL 5730605, at *20 (S.D.N. Y. Sept.
30, 2015) (unpublished) (collecting cases); Kelly v. Conner, No. 3:13-CV-00636-DSC, 2015 WL
3407831, at *6 (W.D.N.C. May 27, 2015) (unpublished). Thus, Sullivan has failed to state a claim
in count one.
Alternatively, these defendants assert that they are entitled to qualified immunity. Mem. in
Supp. Highway Patrol Defs.' Mot. to Dismiss [D.E. 17] 8-11. 5 The doctrine of qualified immunity

5

To the extent Sullivan no longer seeks any form of monetary damages (it is unclear what
Sullivan means by "sanctions" in lieu ofmonetary damages), the defense of qualified immunity does
10

provides that "government officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); see Taylorv. Barkes, 135 S. Ct. 2042,2044 (2015) (per curiam); City& Cty.
ofS.F. v. Sheehml, 135 S. Ct. 1765, 1774 (2015); Carroll v. Carmm 135 S. Ct. 348,350 (2014) (per
curiam); Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012). Qualified immunity protects "all but
the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335,
341 (1986); see Taylor, 135 S. Ct. at 2044; Sheehm 135 S. Ct. at 1774; Carroll, 135 S. Ct. at 350.
The court asks two questions to determine whether qualified immunity applies: first,
''whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right," and
second, ''whether the right at issue was clearly established at the time of [the] defendant's alleged
misconduct." Pearson v. Callahan, 555 U.S. 223,232 (2009) (quotation omitted); see Reichle, 132
S. Ct. at 2093; Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011); Doe ex rei. Johnson v.
S.C. Dep't of Soc. Servs., 597 F.3d 163, 169 (4th Cir. 2010). Courts may decide which question to
address first. Pearson, 555 U.S. at 236. "A Government official's conduct violates clearly
established law when, at the time of the challenged conduct, the contours of a right are sufficiently
clear that every reasonable official would have understood that what he is doing violates .that right."
Ashcroftv. al-Kidd, 131 S. Ct. 2074,2083 (2011) (alterations and quotations omitted). The United
States Supreme Court does "not require a case directly on point, but existing precedent must have

not apply. See Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015). Nevertheless, federal
injunctive relief is an "extraordinary remedy" only awarded under section 1983 ifthe plaintiff shows
"that there is a real or immediate threat that he will be wronged again in a similar way." ld. at
885-86 (quotation omitted). Sullivan has failed to demonstrate a need for injunctive relief. See,
~'Lyons, 461 U.S. at 105-13.

11

placed the statutory or constitutional question beyond debate." Id.; see Reichle, 132 S. Ct. at 2093.
A defendant is entitled to dismissal on qualified-immunity grounds if the answer to either question
is "no."

See,~' Reichle,

132 S. Ct. at2093; al-K.idd, 131 S. Ct. at2080; Millerv. Prince George's

Cty.. Md., 475 F.3d 621, 627 (4th Cir. 2007); Bostic v. Rodriguez, 667 F. Supp. 2d 591, 606
(E.D.N.C. 2009).
Even viewing Sullivan's allegations in the light most favorable to him, Sullivan fails to state
a constitutional violation.

See,~'

Rodgers, 781 F.3d at 939-4; Meeks, 611 F. App'x at 286-87;

Massey, 759 F.3d at 354; cf. Lewis, 674 F.3d at 1306-07. Thus, the court dismisses Sullivan's
individual-capacity claims against defendants Phillips, Maness, and Kirk.
Next, Sullivan alleges that defendants McCrory, Cooper, David, Roberson, Freeman, Grey,
Cotton, Pope, and possibly McMahon "acted either in collusion or separately or ignorantly to deny
my right of due process and equal access to justice" where they refused to prosecute Phillips for his
testimony or to allow Sullivan to present his criminal case against Phillips to "the people's grand
jury[.]" Compl. Count II [D.E. 1] ~~ 77-81.6 Sullivan fails to state a claim. "[T]he United States
and its attorneys have the sole power to prosecute criminal cases in the federal courts," and private
citizens cannot petition federal courts to compel the criminal prosecution of another person. Maine
v. Taylor, 477 U.S. 131, 136-37 (1986); see Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981) (per

6

Sullivan has not specifically named defendant McMahon in either count of his complaint
or amended complaint; however, Sullivan alleged that McMahon "admitted through his agent that
he was not going to investigate another state agency" in violation of his ''job ... to make and
investigate reports of criminal activity." Compl. ~51. Sullivan also alleges that McMahon received
a blind copy of a letter Sullivan wrote to Governor McCrory "asking for his assistance in
investigating Phillips." ld. ~52; see Mem. in Supp. Def. McMahon Mot. to Dismiss [D.E. 21] 1
(''the only allegations in Plaintiff's Complaint relating to or mentioning this Defendant are
paragraphs 51 and 52"). Thus, the court connects defendant McMahon to this count of Sullivan's
complaint.
12

curiam); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Additionally, to the extent Sullivan
attempts to proceed under a "supervisory authority" theory of liability against any defendant in
connection with this claim, Compl. ~ 69, the doctrine ofrespondeat superior generally does not apply
to a section 1983 action. See, e.g., Iqbal, 556 U.S. at 676-77; Monell, 436 U.S. at 694; Carter, 164
F.3d at 220-21; Shaw v. Stroud, 13 F.3d 791,798-99 (4th Cir. 1994). Thus, Sullivan has failed to
state a claim in count two.
Finally, in light of the dismissal of Sullivan's federal claims, the court declines to exercise
supplemental jurisdiction over his state-law claims, and dismisses those claims without prejudice.
28 U.S.C. § 1367(c)(3); see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,350 n.7 (1988); United
Mine Workers ofAm. v. Gibbs, 383 U.S. 715,726 (1966); ESAB Grp .. Inc. v. Zurich Ins. PLC, 685
F.3d 376, 394 (4th Cir. 2012); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995); Sullivan v.
North Carolin~ No. 7:11-CV-238-D, 2012 WL 3762445, at *5 (E.D.N.C. Aug. 29, 2012)
(unpublished).
III.
In sum, the court GRANTS plaintiff's second motion to amend [D.E. 36], GRANTS
defendants' motions to dismiss [D.E. 7, 16, 20], and DISMISSES plaintiff's section 1983 and 1985
claims. The court DISMISSES WITHOUT PREJuDICE plaintiff's state-law claims. The Clerk
shall close the case.
SO ORDERED. This _j_£ day of December 2016.

13