GIDDENS v. CAMPBELL et al
Filing
4
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, signed by MAG/JUDGE L. PATRICK AULD on 10/19/2011, ordering that Plaintiff's request to proceed as a pauper (Docket Entry 2 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL; Recommending that this action be DISMISSED as frivolous and for failing to state a claim under 28 U.S.C. § 1915 (e) (2), but without prejudice to Plaintiff filing a new complaint that sets forth sufficient factual matter to support a viable claim under 42 U.S.C. § 1983, or a petition under 28 U.S.C. § 2254, challenging the conditions of his parole. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEONARD W. GIDDENS, JR.,
Plaintiff,
v.
JOHN CAMPBELL, DIVISION OF
COMMUNITY CORRECTIONS, et al.,
Defendant(s).
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1:11CV375
MEMORANDUM OPINION, ORDER, AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in
Support (Docket Entry 1), filed in conjunction with Plaintiff’s pro
se Complaint alleging claims of racial discrimination and unjust
punishment under 42 U.S.C. § 1983, against Plaintiff’s parole
officer, Defendant John Campbell, and Defendant Campbell’s unnamed
supervisor
(Docket
Entry
2
at
1-4).
The
Court
will
grant
Plaintiff’s request to proceed as a pauper for the limited purpose
of
recommending
dismissal
of
this
action,
under
28
U.S.C.
§ 1915(e)(2), as frivolous and for failing to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953
(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).
“Dispensing with filing fees,
however, [is] not without its problems.
Parties proceeding under
the statute d[o] not face the same financial constraints as
ordinary litigants . . . [and thus] d[o] not need to balance the
prospects
of
successfully
obtaining
administrative costs of bringing suit.”
relief
against
the
Nagy v. Federal Med. Ctr.
Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To address this
concern, the in forma pauperis statute provides that “the court
shall dismiss the case at any time if the court determines that –
. . . (B) the action or appeal – (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.”
28 U.S.C. § 1915(e)(2).
As to the first of these grounds for dismissal, the United
States Supreme Court has explained that “a complaint, containing as
it
does
both
factual
allegations
and
legal
conclusions,
is
frivolous where it lacks an arguable basis either in law or in
fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
‘frivolous’
is
inherently
categorical definition.
elastic
. . .
and
not
“The word
susceptible
to
The term’s capaciousness directs
lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
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frivolity of a claim.”
Nagy, 376 F.3d at 256-57 (some internal
quotation marks omitted).
Alternatively, a plaintiff “fails to
state
relief
§
a
claim
upon
1915(e)(2)(b)(ii),
which
when
the
may
be
granted,”
complaint
does
not
28
U.S.C.
“contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (emphasis added) (internal citations omitted)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
This standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
Id.
In other words, “the tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.
Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
1
Id.1
Although the Supreme Court has reiterated that “[a] document filed pro
se is to be liberally construed and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and
quotation marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement that a pleading
contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298,
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.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’
that permits the court to infer ‘more than the mere possibility of misconduct.’”
(quoting Erickson, 551 U.S. at 94, and Iqbal, 129 S. Ct. at 1950, respectively)),
cert. denied, 130 S. Ct. 2064 (2010).
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PLAINTIFF’S COMPLAINT
The Complaint sets forth the following factual allegations
regarding Plaintiff’s interaction with Defendant Campbell and
Defendant Campbell’s unnamed supervisor:
1) in 2003, Plaintiff was convicted of aggravated assault in
Georgia, “was paroled after five years and was sent back to N.C.
under an agreement . . . [where he] was assigned to [Defendant]
Campbell in 2008” (Docket Entry 2 at 1-2);2
2) “[i]n the spring of 2009, Plaintiff found a job relocating
cars . . . [and] asked [Defendant] Campbell if it was ok for
Plaintiff to take the job . . . [but] [t]he following day that
request was denied . . . [by Defendant Campbell’s supervisor]
because of what happened” (id.);3
3) “[o]n May 2nd 2011 Plaintiff asked [Defendant] Campbell for
a permit to attend A [sic] family reunion in Arlington Va.” and the
next day Defendant Campbell informed Plaintiff that his request was
denied (id.); and
4) “Plaintiff asked [Defendant] Campbell to send that response
to [Plaintiff’s] email with the name of the person that made that
2
According to the Complaint, Plaintiff is a “68 year old Black man”
(Docket Entry 1 at 4) and the man whom he was convicted of assaulting “was a
white man 25 years Plaintiff’s Jr.” (id. at 3). The Complaint implies that
Defendant Campbell and his unnamed supervisor are “white.” (See id. (making
assertions about “actions and state of mind . . . [of] white parole officers”).)
3
The Complaint does not provide sufficient context to allow a
determination about the meaning of the reference to “what happened” (see Docket
Entry 1 at 1-2), although one might infer that such a comment might refer to the
conduct underlying Plaintiff’s conviction for aggravated assault.
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decision, [but Defendant Campbell] did not send that information”
(id. at 2-3).
In
addition,
the
Complaint
sets
forth
the
following
information about Plaintiff (although it does not allege that
Defendant Campbell or his unnamed supervisor had knowledge of said
facts):
1) “[P]laintiff has been in every state in this country and
parts of Canada with near four million mile [sic] driven since
1959” (id. at 4);
2) “Plaintiff has had to deal with people of all walks of life
in just about any situation one can imagine without arrest while
covering this land as a Truck Driver” (id.); and
3) “Plaintiff has raised four wonderful now adult children
that are great citizens, all have good jobs never has been [sic] in
any real trouble” (id.).
Finally, the Complaint makes the following assertions:
1) “the Coroner Medical examiner, the officers involved, and
[Plaintiff’s] court appointed lawyer conspired to get [Plaintiff’s
aggravated assault] conviction” (id. at 1);
2) the fact that the person Plaintiff was convicted of
assaulting “was a white man 25 years Plaintiff’s Jr. . . . was the
reason the law enforcement, the Coroner, Medical Examiner, and
Prosecutor went beyond the law to get a Conviction where there
wasn’t any . . . [and] [t]hese actions and state of mind continues
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[sic] with the white parole officers” (id. at 3 (abbreviation and
errant capitalization in original); see also id. at 4 (assailing
“these
two
Corrupt
groups
of
white
people
[i.e.,
government
officials involved in his conviction and parole officers in North
Carolina], that in [P]laintiff’s case is [sic] not interested in
Justice, just retaliation and revenge” (errant capitalization in
original)));
3)
“[w]ith
no
valid
reason
to
deny
[Plaintiff’s
travel
request] . . . [r]acism and retaliation can be the only motive
left” (id. at 3); and
4) “[f]or anyone to labor [sic] [P]laintiff unfit to travel to
a
family
reunion
is
a
bigot
and
a
racist
[sic]
given
the
circumstances of this case” (id. at 4).
DISCUSSION
Based on the foregoing allegations, Plaintiff seeks to bring
an action under Section 1983 against Defendant Campbell and his
unnamed
supervisor
punishment.”
for
(Id. at 1.)
“racial
discrimination
and
unjust
“To state a claim under § 1983, a
plaintiff must aver that a person acting under color of state law
deprived him of a constitutional right or a right conferred by a
law of the United States.”
Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 615 (4th Cir. 2009).
Plaintiff’s Complaint
lacks sufficient factual allegations to state any such claim.
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The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution prohibits racial discrimination by state
actors
(such
as
Defendants).
See
Monroe
v.
City
of
Charlottesville, Va., 579 F.3d 380, 388 (4th Cir. 2009) (“An equal
protection violation occurs in one of two ways:
(1) when the
government explicitly classifies people based on race, or (2) when
a law is facially neutral, but its administration or enforcement
disproportionately affects one class of persons over another and a
discriminatory
intent
or
animus
is
shown.”).
However,
the
allegations that Plaintiff falls into a different racial group from
Defendants and that Defendants rendered decisions contrary to
Plaintiff’s
preferences
fail
to
state
a
claim
for
racial
discrimination because the “[l]aw does not blindly ascribe to race
all personal conflicts between individuals of different races.”
Hawkins v. Pepsico, Inc., 203 F.3d 274, 282 (4th Cir. 2000).
Instead,
[Plaintiff]
“[t]o
must
succeed
first
on
an
demonstrate
equal
that
he
protection
has
been
claim,
treated
differently from others with whom he is similarly situated and that
the unequal treatment was the result of intentional or purposeful
discrimination.”
Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001); accord Equity in Athletics, Inc. v. Department of
Educ., 639 F.3d 91, 108 (4th Cir. 2011) (“In order to survive a
motion to dismiss an equal protection claim, a plaintiff must plead
sufficient facts to demonstrate plausibly that he was treated
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differently from others who were similarly situated and that the
unequal treatment was the result of discriminatory animus.”).
Plaintiff’s Complaint does not allege (much less provide factual
matter regarding) any such differential treatment by Defendants.
Moreover, Plaintiff may not rely on mere conclusory assertions that
any differential treatment resulted from racial bias.
129 S. Ct. at 1949.
See Iqbal,
Plaintiff’s racial discrimination claim thus
fails as a matter of law.
The Complaint does not make clear what federal constitutional
provision or law Defendants’ allegedly violated by subjecting him
to “unjust punishment” in the form of denial of permission to take
a job “relocating cars” and to travel to Virginia for a family
reunion.
(See Docket Entry 1 at 1-4.)
Some courts, however, have
used the term “unjust punishment” in describing the protections of
the Eighth Amendment to the United States Constitution. See, e.g.,
Jones v. City & Cnty. of San Francisco, 976 F. Supp. 896, 905 (N.D.
Cal. 1997) (“[T]he Eighth Amendment protects convicted prisoners
from cruel and unjust punishment . . . .”).
To the extent the Complaint asserts a claim under the Eighth
Amendment, said claim cannot succeed because:
[A] convicted felon, even after he has been released from
prison on parole, may have substantial restrictions
placed upon [him] . . . [as reflected by decisions]
illustrating the extent to which a parolee’s liberty may
be curtailed, . . . [such as] Hyser v. Reed, 318 F.2d
225, 239 [(D.C. Cir. 1963)] (Burger, J.), [where the
court] said: “The United States cannot constitutionally
impair a citizen’s right to leave the District of
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Columbia or frequent pool halls, but it can do so to
Hyser and the other appellants (parolees), whose freedoms
have been substantially abridged in accord with the
requirements of due process.”
Paka v. Manson, 387 F. Supp. 111, 122 (D. Conn. 1974) (internal
parallel citation and citation to denial of certiorari omitted).
Moreover, if Plaintiff objects to conditions of his parole which
require a parole officer to approve his employment and his travel
outside North Carolina, he must file a petition under 28 U.S.C.
§ 2254, not an action under Section 1983.
See Williams v.
Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003) (“Requirements that
parolees stay in touch with their parole officer, hold down a job,
steer clear of criminals, or . . . obtain permission for any
proposed travel outside the jurisdiction, are what distinguish
parole from freedom. . . .
[Challenges to such restrictions]
should have been presented in a collateral attack . . . [because
such]
restrictions
confinement
.
.
.
define
[and]
the
perimeters
eliminating
or
restrictions would alter the confinement:
of
[a
changing
parolee’s]
one
of
the
figuratively speaking,
one of the bars would be removed from [the parolee’s] cell.”
(internal brackets, citations and quotation marks omitted)).
CONCLUSION
The Complaint fails to state a Section 1983 claim for race
discrimination and/or unjust punishment and, indeed, so lacks any
arguable basis in law as to qualify as legally frivolous.
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IT IS THEREFORE ORDERED that Plaintiff’s request to proceed as
a pauper (Docket Entry 2) is GRANTED FOR THE LIMITED PURPOSE OF
ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be DISMISSED as frivolous
and for failing to state a claim under 28 U.S.C. § 1915(e)(2), but
without prejudice to Plaintiff filing a new complaint that sets
forth sufficient factual matter to support a viable claim under 42
U.S.C. § 1983, or a petition under 28 U.S.C. § 2254, challenging
the conditions of his parole.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 19, 2011
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