HAIZLIP v. BLANKS et al
Filing
24
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/10/2012, ORDERING that Plaintiff's Motion asking for extension of time to the Defendants' Motion (Docket Entry [ 20]) is GRANTED, and Plaintiff's Response, filed April 6, 2012, is considered timely filed. FURTHER that Plaintiff's Motion Requesting For [sic] Appointment of Counsel (Docket Entry 22 ) is DENIED. RECOMMENDING that Defendants' Motion to Dismiss (DocketEntry 16 ) be granted. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LARRY THOMAS HAIZLIP,
Plaintiff,
v.
CORPORAL RICHARDSON, OFFICER
A. MENDEZ, and OFFICER C.B.
PARKER,
Defendants.
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1:11CV376
MEMORANDUM OPINION, ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned United States
Magistrate Judge for a recommended ruling on Defendants’ Motion to
Dismiss (Docket Entry 16) and for disposition of Plaintiff’s Motion
for Extension of Time (Docket Entry 20) and Plaintiff’s Motion
Requesting Appointment of Counsel (Docket Entry 22).1
For the
reasons that follow, the Court should grant Defendants’ Motion to
Dismiss, and the undersigned will grant Plaintiff’s Motion for
Extension of Time and will deny Plaintiff’s Motion Requesting
Appointment of Counsel.
Background
Plaintiff Haizlip, proceeding pro se, filed a Complaint under
42
U.S.C.
1
§
1983
against
Greensboro,
North
Carolina,
Police
Plaintiff’s Motions are titled: “Motion asking for extension
of time to the Defendant(s) Motion” (Docket Entry 20); and “Motion
Requesting For Appointment of Counsel” (Docket Entry 22).
Department
Officers
(Docket Entry 2.)
J.B.
Blanks,
C.B.
Parker
and
A.
Mendez.
Haizlip subsequently amended his Complaint to
replace Officer Blanks with Corporal Richardson.
Entries 6, 10, 11.)
(See Docket
Haizlip alleges that, on June 5, 2009, he was
driving when two unmarked police vehicles blocked his path.
Docket Entry 2 at 3.)
(See
According to Haizlip, Corporal Richardson
and two unknown officers then approached Haizlip’s vehicle with
their weapons drawn.
(Id.)
Purportedly, Corporal Richardson then
“violently pulled [] Haizlip and his passenger from the vehicle,
patted them down, hand cuffed them, and placed them in separate
vehicles.”
(Id.)
Haizlip complains that, after placing him in the vehicle,
Defendants searched Haizlip’s vehicle without an “arrest warrant or
search warrant nor consent.”
(Id.)
According to Haizlip, “no
contraband was found on [him], his passenger, nor in the vehicle.”
(Id.)
Haizlip goes on to allege that (still without an arrest or
search warrant) he and his passenger were then transported to a
nearby
residence
passenger.
(Id.)
which
belonged
to
neither
Haizlip
nor
his
Per Haizlip, Officer Parker obtained a search
warrant for said residence “with no one [sic] name on it, just an
address.”
(Id.)
As a result of these events, Haizlip alleges that “[t]he
search, seizure and detention of [] Haizlip prior to [Officer]
Parker obtaining the search warrant were conducted in violation of
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[] Haizlip’s Fourth Amendment, Fourthteenth [sic] Amendment rights
against unreasonable searches and seizure.” (Id. at 3-4.) Haizlip
further contends that his “Eighth Amendment [right] was also
violated with excessive bail of $100,000 dollars.”
(Id. at 4.)
Defendants Richardson, Mendez and Parker have filed a Motion
to Dismiss (Docket Entry 16) contending: (1) in a related criminal
proceeding,
this
Court
previously
heard
Haizlip’s
motion
to
suppress evidence related to the above described events and thus
Haizlip’s Fourth Amendment claim is barred by collateral estoppel
(see Docket Entry 17 at 2-4); and (2) Haizlip has failed to allege
that any Defendant played a role in setting Haizlip’s bail (see id.
at 4-5).
Haizlip has filed a Motion seeking an extension of time
to file his Response to Defendants’ Motion to Dismiss (see Docket
Entry 21) and a Motion requesting appointment of counsel (see
Docket Entry 22).
Motion for Extension of Time
Responses
were
February 27, 2012.
due
to
Defendants’
Motion
(See Docket Entry 16.)
to
Dismiss
on
Shortly after the
Motion to Dismiss was filed, the Court sent Haizlip a Roseboro
Letter notifying Haizlip of his right to respond and that his
failure to do so would likely lead to dismissal. (See Docket Entry
18 at 1.)
Said letter was returned by the postal service marked
“NOT DELIVERABLE AS ADDRESSED - UNABLE TO FORWARD.”
dated Feb. 22, 2012.)
(Docket Entry
The Court then sent Haizlip a second
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Roseboro Letter, again notifying Haizlip of his right to respond
and the possible consequences of that failure.
(See Docket Entry
19 (dated Mar. 6, 2012).)
A month thereafter, Haizlip filed the instant Motion seeking
an extension of time to file his response to Defendants’ Motion to
Dismiss
(see
Docket
Entry
20
(dated
Apr.
6,
2012))
and
contemporaneously filed his Response (see Docket Entry 21 (dated
same)).
In connection with his Motion for Extension of Time,
Haizlip filed a letter from the United States Department of
Justice, written by Correctional Counselor J. LaLonde, explaining
that, on March 15, 2012, Haizlip was housed in a Special Housing
Unit and, “[f]rom March 15th to March 30th, Haizlip had no access
to his legal property or materials in which to respond to this
[M]otion.”
(Docket
Entry
20-1
at
1.)
Defendants
responded to Haizlip’s Motion for Extension of Time.
have
not
(See Docket
Entries dated Apr. 6, 2012, to present.)
For the cause shown in Haizlip’s Motion, the Court will grant
the requested extension and, accordingly, will consider Haizlip’s
Response, filed April 6, 2012, as timely filed.
Motion Requesting Appointment of Counsel
Haizlip contends that, due to his placement in the Special
Housing Unit, he has limited access to the law library and asserts
that he “is not effective, or competent to represent or oppose this
legal claim on his own.”
(Docket Entry 22 at 1.)
-4-
Haizlip previously filed, and this Court previously addressed,
a Motion requesting appointment of counsel in this action.
Docket Entries 7, 10.)
(See
After reviewing Haizlip’s Request and the
applicable standards (see
Docket Entry 10 at 2-3) the Court
declined to take such action (see id. at 3).
Haizlip has made no
representation in the instant Motion that would change the Court’s
prior conclusion.
Accordingly, for the reasons stated previously
(see Docket Entry 10 at 2-3), the Court will deny Haizlip’s Motion
Requesting Appointment of Counsel (Docket Entry 22).
Defendants’ Motion to Dismiss
Defendants contend: (1) “[Haizlip]’s claim for constitutional
violations of the Fourth and Fourteenth Amendments must fail
because this Court has already heard and decided that probable
cause existed for the Defendants to lawfully stop, detain, search
and arrest [Haizlip]” (Docket Entry 17 at 2); and (2) “[Haizlip]’s
claim that the Defendants set excessive bail must also fail because
[]
[Haizlip]
has
not
articulated
any
facts
which
show
the
Defendants either had the authority or actually performed the act
of
setting
the
allegedly
excessive
bail
for
which
[Haizlip]
complains” (id. at 4).
I.
Claim for Violations of the Fourth and Fourteenth Amendments
Haizlip complains that “[t]he search, seizure and detention of
[] Haizlip prior to [Officer] Parker obtaining the search warrant
were conducted in violation of [] Haizlip’s Fourth Amendment,
-5-
Fourthteenth [sic] Amendment rights against unreasonable searches
and seizure.”
(Docket Entry 2 at 3-4.)
“[T]he underlying command
of the Fourth Amendment is always that searches and seizures be
reasonable.”
Wilson
v.
Arkansas,
514
U.S.
927,
931
(1995)
(quotation marks and citation omitted). Accordingly, “[t]he Fourth
Amendment permits an officer to make an investigative detention or
stop only if supported ‘by a reasonable and articulable suspicion
that the person seized is engaged in criminal activity.’”
United
States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011) (quoting Reid
v. Georgia, 448 U.S. 438, 440 (1980)).
As Defendants note, the issue of whether Defendants had “a
reasonable and articulable suspicion that [Haizlip] [was] engaged
in criminal activity,” Foster, 634 F.3d at 246, previously came
before this Court in the case of United States v. Larry Thomas
Haizlip, 1:10CR195.2
In that action, Haizlip filed a Motion to
Suppress contending that “the detention and subsequent search and
seizure on June 5, 2009, were conducted in violation of [Haizlip’s]
2
“[W]hen entertaining a motion to dismiss on the ground of
res judicata, a court may take judicial notice of facts from a
prior judicial proceeding when the res judicata defense raises no
disputed issue of fact.” Andrews v. Daw, 201 F.3d 521, 524 n.1
(4th Cir. 2000); see also Shealy v. Georgia-Pacific Woods Prods.,
LLC, Civil Action No. 8:11-757-JMC-KFM, 2011 WL 5904664, at *1
(D.S.C. Oct. 31, 2011) (unpublished) (“When a preclusion defense
appears from the face of a plaintiff’s complaint and from facts
from a prior proceeding, the defense may be brought as a Rule 12
motion so long as it raises no disputed issues of fact, because the
court can take judicial notice of the facts from a prior
proceeding.”)
-6-
Fourth Amendment right against unreasonable search and seizure,
and, the seizure of [Haizlip] on June 5, 2009, was illegal, and,
the premise on which the search warrant was obtained was not based
on credible evidence, probable cause or reasonable suspicion.”
United States v. Larry Thomas Haizlip, 1:10CR195, Docket Entry 30
at 1.
Senior United States District Judge N. Carlton Tilley, Jr.
heard oral argument on Haizlip’s Motion to Suppress.
See id.,
Docket Entries dated Dec. 7, 2010; see also id., Docket Entry 63
(consisting of transcript of said hearing).
Both Parties at that
hearing had the opportunity to present witnesses and to offer
argument.
See id., Docket Entry 63.
During the course of that
hearing, it was revealed to the Court that:
•
on June 5, 2009, officers were conducting surveillance on 1511
Elwood Avenue, Apt. B, see id., Docket Entry 63 at 5;
•
during the course of that surveillance, officers observed a
green, compact vehicle pull up in front on the residence,
followed shortly by Haizlip in a purple Chevrolet Caprice, see
id., Docket Entry 63 at 8;
•
Haizlip emerged from his vehicle, entered 1511 Elwood Avenue,
Apt. A - a unit directly adjacent to the one on which officers
were conducting surveillance - emerged a minute later, and
engaged
in
what
trained
officers
-7-
deemed
a
hand-to-hand
narcotics transaction with the occupant of the green, compact
vehicle, see id., Docket Entry 63 at 8-9;
•
Haizlip
then
re-entered
the
1511
Elwood
Avenue,
Apt.
A
location, see id., Docket Entry 63 at 14;
•
the occupant of the green, compact vehicle left and was
subsequently pulled over for a seat belt violation, whereupon
crack cocaine was found on the occupant and, during his
transport to jail, the occupant made a spontaneous utterance
to the effect of “tell me the truth, you were watching the
house I just bought that from,” id., Docket Entry 63 at 17-25;
•
officers subsequently applied for a search warrant on the 1511
Elwood Avenue, Apt. A residence, see id., Docket Entry 63 at
22;
•
while officers were applying for and having said warrant
issued, Haizlip left the residence in his own vehicle, see
id., Docket Entry 63 at 23;
•
officers pulled over Haizlip and detained him while they
awaited issuance of the search warrant, see id.; and
•
the residence and Haizlip’s vehicle were then searched, see
id., Docket Entry 63 at 41-42.
At
the
conclusion
of
that
hearing,
Judge
Tilley
denied
Haizlip’s Motion to Suppress on the basis that probable cause
existed for the officers to believe that Haizlip had engaged in
-8-
criminal activity.
See id., Docket Entry 63 at 71-75.3
The
remaining question concerns whether the foregoing finding, based on
the same events, bars this action under principles of collateral
estoppel.
Collateral estoppel “operates to bar subsequent litigation of
those legal and factual issues common to both actions that were
‘actually and necessarily determined by a court of competent
jurisdiction’ in the first litigation.” In re Varat Enters., Inc.,
81 F.3d 1310, 1315 (4th Cir. 1996) (quoting Montana v. United
States, 440 U.S. 147, 153 (1979)).
It properly applies where:
(1) the issue sought to be precluded is identical to the
one previously litigated; (2) the issue must have been
actually
determined
in
the
prior
proceeding;
(3) determination of the issue must have been a critical
and necessary part of the decision in the prior
proceeding; (4) the prior judgment must be final and
valid; and (5) the party against whom estoppel is
asserted must have had a full and fair opportunity to
litigate the issue in the previous forum.
Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th Cir.
1998). Moreover, the United States Court of Appeals for the Fourth
Circuit has held that an earlier suppression hearing (albeit at the
state court level) serves to collaterally estop a subsequent
3
Haizlip subsequently pleaded guilty, waived his right to
appeal, and noticed an appeal, during which his counsel filed an
Anders brief identifying only a possible sentencing issue and
Haizlip declined to file a supplemental brief despite notice of
that option. See United States v. Haizlip, No. 11-4229, 2012 WL
1995794, at *1 & n.1 (4th Cir. June 5, 2012) (unpublished). After
“examin[ing] the entire record . . . and [finding] no meritorious
issues for appeal,” id. at *1, the Fourth Circuit “affirm[ed] the
district court’s judgment,” id.
-9-
section 1983 action.
See Gray v. Farley, 13 F.3d 142, 146 (4th
Cir. 1993) (“A suppression hearing in an earlier state criminal
trial collaterally estops the relitigation of the same issues in a
§ 1983 action if the elements of collateral estoppel are met.”
(citing Allen v. McCurry, 449 U.S. 90, 105 (1980))).
The record confirms that the elements of collateral estoppel
are indeed met in the instant action.
Haizlip raises the same
issue decided against him in the Motion to Suppress hearing, as
part of a necessary and critical determination in that proceeding,
and Haizlip had a full and fair opportunity to litigate this issue
in the previous forum.
Accordingly, “because [Haizlip] raises the
same issues in the instant case that he raised in the motion to
suppress hearing in front of this [C]ourt and because he had a full
and
fair
opportunity
collaterally
estopped
to
litigate
from
these
bringing
a
issues,
Fourth
[Haizlip]
Amendment
is
claim
regarding the search and seizure,” Knox v. Graham, C.A. No. 9:07283-HMH-GCK,
2008
WL
2227239,
at
*2
(D.S.C.
May
27,
2008)
(unpublished), and his claims for violations of the Fourth and
Fourteenth Amendments should be dismissed.
II.
Claim for Violation of the Eighth Amendment
Haizlip contends that his “Eighth Amendment [right] was also
violated with excessive bail of $100,000 dollars.”
(Docket Entry
2 at 4.) On this issue, Defendants contend that Haizlip has failed
-10-
to state a claim under Federal Rule of Civil Procedure 12(b)(6).
(See Docket Entry 17 at 4-5.)
A plaintiff fails to state a claim when the complaint does not
“contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal,
556
U.S.
662,
678
(2009)
(emphasis
Ashcroft v.
added)
(internal
citations omitted) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are
‘merely consistent with’ a defendant's liability, it ‘stops short
of the line between possibility and plausibility of “entitlement to
relief.”’”
Id. (quoting Twombly, 550 U.S. at 557).
This standard
“demands more than an unadorned, the-defendant-unlawfully-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.”
Id.4
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.
4
“[D]etermining whether a complaint states on its face a
plausible claim for relief and therefore can survive a Rule
12(b)(6) motion . . . requires the reviewing court to draw on its
judicial experience and common sense.” Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009).
-11-
89, 94 (2007) (internal citations and quotation marks omitted).
However, 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, 556 U.S. at 679, respectively)).
Under this standard, Haizlip has failed to state a claim that
Defendants violated his Eighth Amendment right by way of setting
excessive bail.
In fact, Haizlip’s sole allegation on this point
consists of a single sentence: “Mr. Haizlip [sic] Eighth Amendment
[right] was also violated with excessive bail of $100,000 dollars.”
(Docket Entry 2 at 4.)
As Defendants correctly note: “[Haizlip]
has not articulated any facts which show the Defendants either had
the
authority
or
actually
performed
the
act
of
setting
allegedly excessive bail for which [Haizlip] complains.”
Entry 17 at 4.)
the
(Docket
Accordingly, the Court should dismiss Haizlip’s
claim for violation of his Eighth Amendment rights.
-12-
Conclusion
For the cause shown in the Motion for Extension of Time, the
undersigned will consider Haizlip’s Response to Defendants’ Motion
to Dismiss timely filed.
previous
Order,
the
However, for the reasons in this Court’s
undersigned
will
Requesting Appointment of Counsel.
deny
Haizlips
Motion
With respect to Defendants’
Motion to Dismiss, because the issue of whether probable cause
existed to detain Haizlip, obtain a warrant, and subsequently
search his vehicle and home has previously been litigated and
decided, Haizlip’s instant claim for violation of his Fourth and
Fourteenth Amendment rights should be dismissed. Moreover, Haizlip
fails
to
state
a
claim
that
Defendants
violated
his
Eighth
Amendment rights.
IT IS THEREFORE ORDERED that Plaintiff’s Motion asking for
extension of time to the Defendants’ Motion (Docket Entry 20) is
GRANTED,
and
Plaintiff’s
Response,
filed
April
6,
2012,
is
considered timely filed.
IT IS FURTHER ORDERED that Plaintiff’s Motion Requesting For
[sic] Appointment of Counsel (Docket Entry 22) is DENIED.
-13-
IT IS RECOMMENDED that Defendants’ Motion to Dismiss (Docket
Entry 16) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 10, 2012
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