HARRIS, II v. PRESSLEY et al

Filing 4

ORDER AND RECOMMENDATION - MAGISTRATE JUDGE - signed by MAG/JUDGE P. TREVOR SHARP on 06/10/2010. ORDERED that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation. FURTHER ORDERED that within twenty (20) days from the date of this Order Plaintiff make an initial partial payment of $1.72 and return the Consent to Collection form. Failure to comply with this Order will lead to dismissal of the complaint. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim upon which relief may be granted, as well as for seeking monetary relief against a defendant who is immune from such relief. Re 1 Application to Proceed IFP filed by LAWRENCE L. HARRIS, II, 2 Complaint (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

L A W R E N C E L. HARRIS, II, P l a i n t i f f, v. T H E R E S A K. PRESSLEY, et al., D efe n d a n t(s).

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O R D E R AND RECOMMENDATION O F UNITED STATES MAGISTRATE JUDGE P la in tif f , Lawrence L. Harris, II, has submitted a pro se complaint under 42 U.S.C. § 1983 and requested that he be permitted to proceed in forma pauperis pursuant to 28 U.S.C. § l915(a). Plaintiff names 22 government workers or officials as defendants. B e c au s e Plaintiff is "a prisoner seek[ing] redress from a governmental entity or officer o r employee of a governmental entity," this Court has an obligation to "review" this c o m p lain t. 28 U.S.C. § 1915A(a). "On review, the court shall . . . dismiss the complaint, o r any portion of the complaint, if [it] ­ (1) is frivolous, malicious, or fails to state a claim u p o n which relief may be granted; or (2) seeks monetary relief from a defendant who is im m u n e from such relief." 28 U.S.C. § 1915A(b). A s to the first basis for dismissal, the United States Supreme Court has explained that " a complaint, containing as it does both factual allegations and legal conclusions, is frivolous

w h e re it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 3 2 5 (1989). "The word `frivolous' is inherently elastic and not susceptible to categorical d e f i n itio n . . . . The term's capaciousness directs lower courts to conduct a flexible analysis, i n light of the totality of the circumstances, of all factors bearing upon the frivolity of a c la im ." Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some interna l quotation marks omitted). T h e Supreme Court further has identified factually frivolous complaints as ones in v o lv in g "allegations that are fanciful, fantastic, and delusional. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irra tio n a l or the wholly incredible, whether or not there are judicially noticeable facts a v a ila b le to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal c itati o n s and quotation marks omitted). In making such findings, this Court may "apply c o m m o n sense." Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1 9 9 5 ). Alternatively, a plaintiff "fails to state a claim upon which relief may be granted," 28 U .S .C . § 1915A(b)(1), when the complaint does not "contain sufficient factual matter, a c ce p te d as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 5 5 6 U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (emphasis added) (internal citations o m itte d ) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Where a co m p lain t pleads facts that are `merely consistent with' a defendant's liability, it `stops short -2-

o f the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting T w o m b ly , 550 U.S. at 557). This standard "demands more than an unadorned,

th e -d e f en d a n t-u n la w f u lly-h a rm e d -m e accusation." Id. In other words, "the tenet that a court m u s t accept as true all of the allegations contained in a complaint is inapplicable to legal co n clus ion s. Threadbare recitals of the elements of a cause of action, supported by mere c o n c lu s o r y statements, do not suffice." Id.1 The Court may also anticipate affirmative d e f e n s e s which are clear on the face of the complaint. Todd v. Baskerville, 712 F.2d 70 (4th C ir. 1983); Nasim, 64 F.3d at 954 (4th Cir. 1995)(en banc)(court may apply common sense a n d reject fantastic allegations and/or rebut them with judicially noticed facts). The final ground for dismissal under 28 U.S.C. § 1915A(b)(2) generally applies to s itu a tio n s in which doctrines established by the United States Constitution or at common law im m u n iz e governments and/or government personnel from liability for monetary damages.

Although the Supreme Court has reiterated that "[a] document filed pro se is to be lib e ra lly construed and a pro se complaint, however inartfully pleaded, must be held to less s trin g e n t standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 8 9 , 94 (2007) (internal citations and quotation marks omitted), the United States Court of A p p e a ls for the Fourth Circuit has "not read Erickson to undermine Twombly's requirement th a t a pleading contain more than labels and conclusions," Giarratano v. Johnson, 521 F.3d 2 9 8 , 304 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly standard in dismissing pro se complaint). Accord Atherton v. District of Columbia Off. of Mayor, 567 F .3 d 672, 681-82 (D.C. Cir. 2009) ("A pro se complaint . . . `must be held to less stringent s ta n d a rd s than formal pleadings drafted by lawyers.' But even a pro se complainant must p l e a d `factual matter' that permits the court to infer `more than the mere possibility of m is c o n d u c t .' " (quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at 1950, resp ec tiv ely)), cert. denied ___ U.S. ___, No. 09-8739, 2010 WL 286406 (2010), and cert. d e n ie d , U.S. , No. 09-889, 2010 WL 285700 (2010).
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S e e , e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing so v e re ig n immunity of states and state officials under Eleventh Amendment); Pierson v. Ray, 3 8 6 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and co m m o n -la w immunity doctrines, such as judicial, legislative, and prosecutorial immunity). C f. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where "damages are th e o re tic a lly available under [certain] statutes . . ., in some cases, immunity doctrines and s p e c ia l defenses, available only to public officials, preclude or severely limit the damage r e m e d y" ) . F o r the reasons that follow, the complaint should be dismissed pursuant to 28 U.S.C. § 1915A(b) because it fails to state a claim on which relief may be granted, and because it s e e k s monetary damages from defendants with immunity from such relief. As an initial matter, the Court notes that Plaintiff is attempting to undermine his c o n v ictio n s for possession with intent to sell or deliver crack cocaine and solicitation to co m m it arson. He claims that he was falsely promised that these would not go on his record a s violent crimes, but that they were so treated in a later federal case. He contends that this is a "`premeditated fraudulant [sic] plan'," that has unfold [sic] by every named d e f e n d a n t." (Docket No. 2 at 10.) In essence, he alleges a large-scale conspiracy

s u rro u n d in g his state convictions and proclaims his innocence. Plaintiff is not be permitted to raise claims undermining his state convictions without first showing that such convictions h a v e been reversed on direct appeal, expunged by Executive Order, declared invalid by a -4-

sta te tribunal, or, finally, called into question by a federal court through the issuance of a writ o f habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff fails to do so and, th e re f o re , dismissal is proper for this reason alone. F u r th e r, Plaintiff has sued a number of state officials. It is not clear whether he in ten d s to sue them in their individual or official capacities. However, to the extent that this is an official capacity suit, it fails. Neither the State nor it agencies are "persons" subject to s u it under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989). Plaintiff's s u it should be dismissed accordingly. Plaintiff names two state court judges and five current or former state prosecutors as d e f en d a n ts . They are Judges A. Leon Stanback and W. Osmond Smith, III, former District A tto rn e y Joe Brewer, District Attorney James M. Long, former Assistant District Attorney L u a n n Wright Martin, and Assistant District Attorneys Roger Echols and Hugh Willaford. J u d g e s have absolute immunity for their judicial actions. Stump v. Sparkman, 435 U.S. 349 ( 1 9 7 8 ). Prosecutors have absolute immunity for their participation in the judicial process. B u c k le y v. Fitzsimmons, 509 U.S. 259 (1993); see Lyles v. Sparks, 79 F.3d 372 (4th Cir. 1 9 9 6 ) (prosecutor's decision of whether and when to prosecute is protected by absolute im m u n i ty) . Plaintiff alleges only that these defendants made rulings against him or

im p ro p e rly prosecuted him in some manner. Plaintiff's complaint against all seven of the d e f en d a n ts just listed should therefore be dismissed.

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N e x t, Plaintiff names four of his former defense attorneys, Theresa K. Pressley, C h a r lie Hubbard, Jason Crump, and Ben Holloman, as defendants. However, defense a tto rn e ys do not act "under color of" state law and are, therefore, not amenable to suit under § 1983. This is true whether the attorney is privately retained, Deas v. Potts, 547 F.2d 800, 8 0 0 (4th Cir. 1976), appointed by the state, Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1 9 8 0 ), or employed as a public defender, Polk County v. Dodson, 454 U.S. 312, 324 (1981) (n o state action where public defender performs traditional functions as a lawyer). For this re a so n , Plaintiff cannot pursue this claim via § 1983 and, if he has a remedy against his a tto rn e ys , he must find it under the appropriate state law. His claims against Pressley, H u b b a rd , Crump, and Holloman should be dismissed. P lain tiff also names a defendant who he identifies as a court clerk whose name is unknow n. Court clerks are accorded derivative absolute immunity when they act in

o b e d ie n c e to judicial order or under the court's direction. See, e.g., McCray v. State of Md., 4 5 6 F.2d 1 (4th Cir. 1972). Plaintiff pleads no facts which would, if true, overcome this im m u n ity and entitle him to relief. A s for the remaining defendants, Plaintiff simply does not make sufficient factual a lle g a tio n s to state a claim for relief against any of them. Two, Kerri Jeffrey and James Y a n c ey are state probation officers who was assigned to Plaintiff's arson conviction. (D o ck et No. 2 at 9.) His only allegation is that they harassed and embarrassed him before

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re v o k in g his probation. (Id. at 15-16.) This is exactly the sort of bare bones, "the-defendantu n la w f u lly-h a rm e d -m e " allegation that is insufficient to state a claim for relief. Plaintiff also sues the former Governor of North Carolina Mike Easley, current G o v ern o r Beverly Eaves Purdue, North Carolina Attorney General Roy A. Cooper, Secretary o f the North Carolina Department of Correction Alvin W. Keller, Jr., current Roxboro Mayor T h o m a s J. Brown, Roxboro's unnamed former mayor, and two unnamed County C o m m i s s io n e rs or Managers from an unnamed county. Plaintiff claims either that the c o n sp ira c y against him occurred while these officials were in office or that they are liable b ec au se they are currently in office and the State of North Carolina and City of Roxboro are lia b le for his damages. As to these persons, Plaintiff alleges no direct action, but only claims v ic a rio u s or supervisory liability. This is insufficient to state a claim under § 1983. The d o c trin e of respondeat superior is inapplicable to § 1983 actions, Monell v. Dep't of Soc. S e r v s ., 436 U.S. 658, 694 (1978), except where a plaintiff can establish supervisory in d if f e re n c e , Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984). To establish supervisory in d if f e re n c e , Plaintiff would have to show that the supervisory party had notice of the acts o f its subordinates and, moreover, that there was a causal link between the supervisory in a c tio n and the harm suffered. Id. at 373-76. Plaintiff makes no allegations that would meet th is standard. He also mentions negligence as part of his claims, but simple negligence fails to implicate the rights secured by the Constitution or the laws of the United States. See, e.g., D a v id s o n v. Cannon, 474 U.S. 344, 348 (1986) (failure to take due care, as opposed to -7-

d e lib e ra te indifference to possible harm, is not the sort of governmental abuse which the Due P ro c e ss Clause was designed to prevent); Estelle v. Gamble, 429 U.S. 97, 106, 104 (1976) (o n ly deliberate indifference on part of supervisory official to potential harm can offend the " e v o lv in g standards of decency" in violation of the Eighth Amendment). Plaintiff has stated n o claim against the officials named above and the case against them should be dismissed. F in a lly, Plaintiff does request injunctive relief, relief which may not be barred by im m u n ity, but he has not requested a proper injunction. Plaintiff has asked for an injunction re q u irin g that neither he nor any other persons suffer from the same sort of oppression and h a ra ss m e n t that Defendants are alleged to have inflicted on Plaintiff. Plaintiff's request is n o t narrowly drawn to protect only himself nor has his standing to request an injunction on b e h a lf of others been demonstrated. Accordingly, this request for injunctive relief is im p e rm is s ib ly broad. Plaintiff also fails to allege sufficient facts to show that he is in danger o f future harassment. Plaintiff's request for injunctive relief should be dismissed. P lain tiff is therefore not entitled to further proceed as a pauper. Plaintiff's request to p ro c e ed in forma pauperis should not be countenanced, with the exception that in forma p a u p e r is status shall be granted for the sole purpose of entering this Order and R e c o m m e n d a ti o n . P la in tif f has submitted a complaint for filing, however, and, notwithstanding the a b o v e determination, § 1915(b)(1) requires that an initial payment of $1.72 be made.

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P lain tiff must also agree that his funds be withheld until the full filing fee is paid. Failure to comply with this Order will lead to dismissal of the complaint. I T IS THEREFORE ORDERED that in forma pauperis status be granted for the s o le purpose of entering this Order and Recommendation. I T IS FURTHER ORDERED that within twenty (20) days from the date of this O rd e r Plaintiff make an initial partial payment of $1.72 and return the Consent to Collection f o rm . Failure to comply with this Order will lead to dismissal of the complaint. I T IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim upon which relief may be granted, as well as for s e e k in g monetary relief against a defendant who is immune from such relief.

/s/ P. Trevor Sharp United States Magistrate Judge

D a te : June 10, 2010

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ptf-ct1.frm Section 1983-2/98

I N THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF NORTH CAROLINA

L A W R E N C E L. HARRIS, II, P l a i n t i f f, v. T H E R E S A K. PRESSLEY, et al., D efe n d a n t(s).

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C O N S E N T TO COLLECTION OF FEES FROM TRUST ACCOUNT I, ________________________, prison number ____________, hereby consent: 1. f o r the appropriate prison officials to collect or set aside from my account on a continuing basis each month, starting the month after this action was filed, a n amount equal to 20% of each month's income or deposits for the payment o f filing fees and costs of this action; th a t collection shall continue even after my case is dismissed or otherwise d e c id e d until the full filing fee and any assessed costs are paid; th a t I may not withdraw or use any part of these 20% monthly set asides except to pay the court; th a t the court will order the Trust Officer (or similarly designated official ) to f o rw a rd payments to the Clerk's Office, U.S. District Court, Post Office Box 2 7 0 8 , Greensboro, North Carolina 27402, until such time as the $350.00 filing f e e and any assessed costs are paid in full; and th a t I understand that any violation or noncompliance by me with the terms of th is Consent shall result in the dismissal of the above entitled action with p r e ju d ic e .

2. 3. 4.

5.

D a te : _______________

P la in tif f 's signature: _______________________________