WILSON v. THE COUNTY OF DURHAM, NORTH CAROLINA, et al

Filing 5

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/8/2013, ORDERING that Plaintiff's Application for Leave to Proceed In Forma Pauperis (Docket Ent ry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDING that the federal claims in this action be dismissed under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim and for seeking damages against Defendants with immunity from such relief and that the related state claims be dismissed under 28 U.S.C. § 1367(c)(3).⁷ FURTHER ORDERING that the Motion to Allow Plaintiff Linwood Wilson to Use the CM/ECF System to File Documents Electronically (Docket Entry 4 ) is DENIED. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LINWOOD E. WILSON,
Plaintiff,
v.
THE COUNTY OF DURHAM, NORTH
CAROLINA, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

1:11CV1065

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 (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2), as
well as on the Motion to Allow Plaintiff Linwood Wilson to Use the
CM/ECF System to File Documents Electronically (Docket Entry 4).
(See Docket Entry dated Dec. 6, 2011.)

For the reasons that

follow, the Court will grant Plaintiff’s Application to proceed as
a pauper solely for the purpose of allowing consideration of a
recommendation of dismissal and, in light of that recommendation,
will decline to permit electronic filing.
I.

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.

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

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 . . . (ii) fails to
state a claim on which relief may be granted . . . .”

28 U.S.C.

§ 1915(e)(2).
A complaint fails to state a claim on which relief may be
granted when it does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis

added) (internal citations omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In other words, the applicable
standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. Moreover, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.

2

Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
II.

Id.1

FACTUAL BACKGROUND

Plaintiff’s pro se Complaint asserts that “[t]his is a civil
action for damages and injunctive relief under 42 U.S.C. § 1983, 42
U.S.C. § 1985, 42 U.S.C. § 1986, 42 U.S.C. § 1988(b), and the
common law of the State of North Carolina and the State of
Delaware.” (Docket Entry 2 at 6.) It alleges the following facts:
Plaintiff’s then-wife, Defendant Barbara Wilson, “had been
caught in an ongoing affair with her boss [at the Durham Coca-Cola
Bottling

Company],

[Defendant]

Joseph

Curtis,

II,

on

many

occasions” from at least November of 2006 through April of 2010.
(Id. at 16.)

On April 22, 2010, after several weeks of Plaintiff

and his wife attempting to make the marriage work (id. at 18-28),

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 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)).
3

Defendant Curtis appeared at the home shared by Plaintiff and his
wife (id. at 20-21).

Plaintiff “proceeded to inform Defendant

Curtis ‘don’t come into my home, push me out of the way, and
disgrace me, my wife and my home this way or I’ll blow your f__king
head off,” at which point Defendant Curtis left.

(Id. at 21.)

Several days later, Plaintiff and his wife argued and she
threatened to take her own life. (Id. at 28-29.) Plaintiff became
concerned and called a doctor who advised him to have his wife
involuntarily committed for treatment.

(Id. at 29-30.)

At some

point thereafter, Plaintiff’s wife met with Defendant Christin
Reimann, a domestic violence investigator for the Durham County
Sheriff’s

Department

(id.

at

14),

who

assured

her

that

“if

Plaintiff tried to have her committed that Defendant Reimann would
personally have it stopped” (id. at 32).
Plaintiff’s wife then went to Delaware, where her sister,
Defendant Nancy Robbins, resides (see id. at 25), and met with
Defendant Robbins and Defendant David Weaver, an investigator for
the

Delaware

State

Police

(id.

at

9).

“On

June

3,

2010,

[Plaintiff’s wife] petitioned the Family Court of Delaware for a
protective order against Plaintiff” which was granted “even though
the facts didn’t show any abuse or violence occurring in Delaware.”
(Id. at 32.)
Defendants Robbins, Weaver, Reimann, and Curtis, as well as
Plaintiff’s wife, “made a ‘rush to judgment’ and manufactured

4

charges, to have Plaintiff charged with things that they knew he
had not committed, in order to get a fugitive warrant against
Plaintiff and to get him into the Delaware’s [sic] jurisdiction.”
(Id. at 39.)

Said Defendants “rushed to have Plaintiff [] in jail

on June 25, 2010 because Plaintiff [] had posted on his personal
email address (AIM) that something was going to happen in the
divorce

action

newspapers.”
going

to

harm

June

(Id.)

25,

2010

so

watch

the

television

and

Defendant Reimann “believed Plaintiff was

Defendant

Curtis”

encouraged charges against him.

on

June

25,

2010,

and

thus

(Id.)

A grand jury in Delaware indicted Plaintiff on charges of
felony stalking, seven counts of misdemeanor harassment, and five
counts of criminal contempt of the protective order.

(Id. at 55.)

Plaintiff turned himself in on the resulting warrant.

(Id. at 39-

40.)

At a subsequent hearing, Defendant Weaver “[told] the judge

what a threat to society that Plaintiff [] was and that Plaintiff
had threatened to kill Defendant Curtis, in North Carolina at
Durham Coca-Cola with a gun.”

(Id. at 40.)

Defendant Weaver also

indicated that he possessed a letter allegedly written by Plaintiff
threatening Defendant Curtis and his family.

(Id.)

According to

the Complaint, “[n]one of the information that Defendant Weaver had
maliciously stated was truthful and was meant to taint the court
against Plaintiff . . . .”

(Id.)

5

On July 15, 2010, while Plaintiff was in Delaware to answer
the

above-referenced

charges,

“[Defendant]

Reimann

and

approximately 5 other Durham County Sheriff’s deputies broke into
Plaintiff[’s] [] home with a search warrant, drawn up by Defendant
Reimann.”

(Id. at 43.)

The Complaint alleges that this search

warrant was obtained on behalf of the Delaware State Police but
that

“[e]verything

in

the

search

warrant

was

for

a

case

on

Plaintiff [] in North Carolina, where no complaint or domestic
violence order was executed.”

(Id. at 43-44.)

The Complaint

further alleges that Defendant Reimann made a false statement as
part of her affidavit in support of the search warrant (id. at 45)
and that the officers did not follow certain required procedures
during the search (id. at 46).
Based on the foregoing allegations, Plaintiff’s Complaint
pursues claims for: (1) “Malicious Prosecution and Seizure in
Violation of 42 U.S.C. § 1983”2 (id. at 54-56); (2) “Concealment of
Evidence

in

Violation

of

42

U.S.C.

§

1983”

(id.

at

56-57);

(3) “Fabrication of False Evidence in Violation of 42 U.S.C.
§ 1983” (id. at 57-58); (4) “Violations of 42 U.S.C. § 1983 (Monell
v. Dep’t of Social Servs., 436 U.S. 658 (1977))” (id. at 59-68);
(5) “Supervisory Violations of 42 U.S.C. § 1983” (id. at 68-72);
(6) “Conspiracy in Violation of 42 U.S.C. § 1983” (id. at 72-74);

2

The cause of action headings in the Complaint appear in
all capital letters. (See Docket Entry 2.) For ease of reading,
the Court uses standard capitalization here.
6

(7) “Conspiracy in Violation of 42 U.S.C. § 1985(2)” (id. at 7476); (8) “Conspiracy in Violation of 42 U.S.C. § 1985(3)” (id. at
76-77); (9) “Conspiracy in Violation of 42 U.S.C. § 1986 (Durham
County Sheriff’s Department and ABC Police, Delaware State Police)”
(id. at 78-80); (10) “Malicious Prosecution and Conspiracy” (id. at
80-81); (11) “Obstruction of Justice and Conspiracy” (id. at 8183);

(12)

“Intentional

Infliction

of

Emotional

Distress

and

Conspiracy” (id. at 83-84); (13) “Negligence by Durham County
Sheriff’s Department, ABC Police, and the Delaware State Police”
(id. at 84-85); (14) “Negligent Supervision, Hiring, Training,
Discipline, and Retention by Durham County Sheriff’s Department,
Durham County ABC Police, Delaware State Police, State of Delaware
Family Court, Delaware Attorney Generals [sic] Office and Kent
County,

DE

Prosecutors

[sic]

Office”

(id.

at

85-87);

(15) “Negligent Infliction of Emotional Distress by Durham County
Sheriff’s Department, Durham County ABC Police and Delaware State
Police” (id. at 87-88); (16) “Negligent Infliction of Emotional
Distress by Durham County Sheriff’s Department, and Delaware State
Police (Durham Sheriff’s and Delaware State Police Statements)”
(id. at 88-89); (17) “Violation of Article I, Section 19 of the
North Carolina Constitution” (id. at 89); and (18) “Violation of
Delaware Code Ann. Tit. 10, § 4011, 10, § 4012, 10, § 4013, 10,
§ 4001, 10, § 4002, 10, § 4003, 10, § 4005, However, the purchase
of insurance constitutes a waiver of the government entity’s

7

sovereign immunity. Holden v. Bundek, 317 A.2d 29 (Del. 1972)” (id.
at 89-90).
III.

DISCUSSION

A. Malicious Prosecution
The Complaint’s first claim, for malicious prosecution in
violation of Plaintiff’s Fourth and Fourteenth Amendment rights
pursuant to 42 U.S.C. § 1983, arises from criminal proceedings
commenced against Plaintiff in Delaware.

(Id. at 54-56.)

“A

malicious prosecution claim under § 1983 is properly understood as
a

Fourth

Amendment

claim

for

unreasonable

seizure

incorporates certain elements of the common law tort.

which

To state

such a claim, a plaintiff must allege that the defendant (1) caused
(2)

a

seizure

unsupported

by

of

the

probable

plaintiff
cause,

pursuant

and

(3)

to

legal

criminal

process

proceedings

terminated in plaintiff’s favor.” Evans v. Chalmers, 703 F.3d 636,
647

(4th

Cir.

2012)

(internal

citations

and

quotation

marks

omitted).
The Complaint alleges that a grand jury in Delaware indicted
Plaintiff on “1 Felony Stalking charge [], 7 misdemeanor Harassment
charges [] and 5 criminal contempt of Domestic Violence Order
. . . .”

(Docket Entry 2 at 55.)

It further asserts that “[n]ine

of the criminal prosecutions terminated in favor of Plaintiff,”
although it specifies neither which nine, nor the form of the
allegedly favorable termination.

(Id.)

8

As an initial matter, Plaintiff’s suit would undermine state
criminal convictions.

The Complaint indicates that four of the

thirteen charges against Plaintiff did not terminate in his favor.
(See id.)
state

Plaintiff may not use this action to call into question

criminal

convictions

without

first

showing

that

such

convictions have been reversed on direct appeal, expunged by
Executive Order, declared invalid by a state tribunal, or, finally,
called into question by a federal court through the issuance of a
writ of habeas corpus.
(1994).

Heck v. Humphrey, 512 U.S. 477, 486-87

Plaintiff has failed to do so, thus making dismissal

proper.
Moreover, the Court properly may take judicial notice of the
plea agreement Plaintiff entered into with respect to the charges
referenced in the Complaint.

(See

Plea

Agreement,

Case

No.

1006021866, Superior Court of the State of Delaware in and for Kent
County.)3

In said agreement, Plaintiff pleaded guilty to charges

3

“The [C]ourt may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b); see also Papasan
v. Allain, 478 U.S. 265, 268 n.1 (1986) (“Although this case comes
to us on a motion to dismiss under Federal Rule of Civil Procedure
12(b), we are not precluded in our review of the complaint from
taking notice of items in the public record . . . .”); Hall v.
Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (endorsing the
taking of judicial notice of data on state website in connection
with analysis of legal sufficiency of complaint); Stiles v. Marsh,
No. 1:13CV86RJC, 2013 WL 3455942, at *1 n.1 (W.D.N.C. July 9, 2013)
(unpublished) (taking judicial notice of conviction records on
“North Carolina Department of Public Safety web site” for purposes
(continued...)
9

1 and 2 (harassment) and 8 and 13 (criminal contempt of a PFA).
(Id.)

The agreement also notes that, “[u]pon sentencing of the

defendant, a nolle prosequi is entered on . . . all remaining
charges on this case.”

(Id.)

The prosecution thus decided not to

pursue the remaining charges as a result of the plea agreement,
rather than due to Plaintiff’s actual innocence as required to
sustain a malicious prosecution claim under § 1983.

See White v.

Brown, 408 F. App’x 595, 599 (3d Cir. 2010) (“That the dismissal of
those charges resulted from [the plaintiff’s] plea agreement with
the prosecution, and not his innocence, means that he cannot
establish favorable termination for purposes of a § 1983 action for
malicious prosecution.”); Key v. Miano, C/A No. 1:11-1613-DCN-SVH,
2012 WL 5398194, at *3 (D.S.C. Oct. 10, 2012) (unpublished)
(“Because

there

is

no

indication

in

the

record

that

[the]

[p]laintiff’s indictment was nolle prossed for reasons consistent
with his innocence, this was not a favorable disposition of [the]
[p]laintiff’s charge.”); Restatement (Second) of Torts § 660 (1977)
(“A termination of criminal proceedings in favor of the accused
other than by acquittal is not a sufficient termination to meet the
requirements of a cause of action for malicious prosecution if (a)
the charge is withdrawn or the prosecution abandoned pursuant to an
agreement of compromise with the accused . . . .”).

3

(...continued)
of initial screening of pro se complaint under 28 U.S.C. § 1915A).
10

Furthermore, the Complaint conclusorily states that “[t]here
was

no

realistic

probable

prosecutions of [] Plaintiff.”

cause

for

any

of

the

criminal

(Docket Entry 2 at 55.)

However,

it also notes that a grand jury indicted Plaintiff on each of the
charges (id.), but nowhere asserts that the grand jury received
inaccurate information (see id.). “It has long been settled by the
Supreme Court that ‘an indictment, fair upon its face, returned by
a properly constituted grand jury, conclusively determines the
existence of probable cause.’” Durham v. Horner, 690 F.3d 183, 189
(4th Cir. 2012) (some internal quotation marks omitted) (quoting
Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)).

Although the

Complaint conclusorily alleges that Defendants “made a ‘rush to
judgment’ and manufactured charges” (Docket Entry 2 at 39), it does
not describe how any actions by Defendants contributed to the grand
jury’s indictments.

For all of these reasons, the Complaint fails

to state a claim for malicious prosecution pursuant to § 1983.
B.
Plaintiff’s

Concealment/Manufacture of Evidence
second

and

third

claims

allege

that

various

Defendants concealed and/or manufactured evidence in an attempt to
hide Plaintiff’s innocence from the grand jury.

(Id. at 56-58.)

As an initial matter, as discussed previously, see Section III.A.,
to the extent these claims undermine the state criminal convictions
against Plaintiff, such claims cannot proceed.

Heck, 512 U.S. at

486-87. Moreover, as to the concealment claim, the Complaint makes

11

only

conclusory

allegations

that

Defendants

Reimann,

Weaver,

Whitfield, Richardson, Wilson, Curtis, Robbins, and Kelleher,
“acting

individually

and

in

concert,

concealed

evidence

of

Plaintiff’s actual innocence to manufacture probable cause, to
secure indictments of Plaintiffs [sic], and ultimately to secure
convictions of Plaintiff.”

(Id. at 56.)

The Complaint does not

identify the nature of any evidence the above-named Defendants
allegedly withheld.

It therefore fails to state a claim.

See

Iqbal, 556 U.S. at 678.
The Complaint further alleges that Defendants Reimann, Weaver,
Kelleher, and Whitfield “abused their authority and positions as
law enforcement officers in order to obtain false statements that
they could use to manufacture probable cause, to secure indictments
of Plaintiffs [sic], and ultimately in the criminal proceedings
instituted against Plaintiff, and/or to prevent Plaintiff from
securing a proper bond.”

(Id. at 58.)

It also contends that

Defendants Reimann, Weaver, Curtis, and Whitfield “manipulated
letters threatening the life of Defendant Curtis and his family
knowing that letter would be used to manufacture probable cause, to
possibly secure indictments of Plaintiff, and ultimately in the
criminal proceeding instituted against Plaintiff.”

(Id.)

The

Complaint asserts that these alleged actions deprived Plaintiff of
his rights under the Fourth and Fourteenth Amendments.

12

(Id.)

The Fourth Circuit recognizes “‘the right not to be deprived
of liberty as a result of the fabrication of evidence by a
governmental

officer

acting

in

an

investigating

capacity.’”

Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005) (quoting
Zahrey

v.

Coffey,

demonstrate

this

221

right,

F.3d
a

342,

349

plaintiff

(2d

must

Cir.

2000)).

“pro[ve]

that

To
[the

defendant] fabricated evidence and that the fabrication resulted in
a deprivation of [the plaintiff’s] liberty.”
To

the

extent

the

allegedly

Id.

fabricated

evidence

led

to

Plaintiff’s arrest and subsequent prosecution, this claim calls
into question Plaintiff’s state law convictions and therefore fails
as a matter of law.

Heck, 512 U.S. at 486-87.4

Moreover, to the

extent the allegedly fabricated evidence did not contribute to
Plaintiff’s arrest and subsequent convictions, Plaintiff has not
alleged that the alleged fabrication resulted in a constitutional
deprivation of liberty.
The Complaint first alleges that Defendants obtained false
statements.

(Docket Entry 2 at 58.)

The claim itself does not

identify the nature of any such statements.

(Id.)

In the facts

section, the Complaint alleges that, at some point, Plaintiff’s
wife lied in statements she gave to Defendant Weaver (see id. at

4

In Washington, the governor of Virginia pardoned the
plaintiff after post-conviction DNA testing conclusively excluded
him from participation in the crime of conviction, thus removing
the subsequent § 1983 case from the purview of Heck. Washington,
407 F.3d at 276.
13

32), but it does not indicate that Defendant Weaver had knowledge
of any falsehoods (id.). Additionally, the Complaint alleges that,
at a hearing before a justice of the peace (apparently to address
bond), Defendant Weaver testified that Plaintiff threatened to kill
Defendant Curtis with a gun in North Carolina, a statement that
Defendant

Curtis

(and

Plaintiff’s

wife)

later

indicated

unsupported by any information given to Defendant Weaver.

was

(Id. at

40.)
As an initial matter, the state court released Plaintiff after
that hearing and Defendant Weaver apparently did not succeed in his
attempt to have Plaintiff’s bond raised.

(Id. at 41.)

therefore suffered no deprivation of liberty.

Plaintiff

Moreover, the

Complaint acknowledges that Plaintiff threatened Defendant Curtis’s
life.

(See id. at 21 (“‘[D]on’t come into my home, push me out of

the way, and disgrace me, my wife and my home this way or I’ll blow
your f__king head off[.]’”).)
The

Complaint

also

alleges

that

Defendants

“manipulated

letters threatening the life of Defendant Curtis and his family.”
(Id. at 58.)

However, as previously discussed, Defendant Weaver’s

testimony regarding such threats did not cause the court to detain
Plaintiff.

(Id. at 41.)

Moreover, the Complaint indicates that

the charges against Plaintiff involved alleged conduct towards
Defendants Wilson and Robbins, not Defendant Curtis.
Therefore,

any

testimony

or

evidence

14

of

alleged

(Id. at 55.)
conduct

by

Plaintiff against Defendant Curtis did not cause charges that
deprived Plaintiff of liberty.

The Complaint therefore fails to

state a claim for violation of a constitutional right as the result
of fabrication of evidence.
C.

Supervisory Claims

The Complaint’s fourth and fifth causes of action allege a
variety of supervisory § 1983 violations against several individual
Defendants in their official and individual capacities, as well as
the County of Durham, North Carolina, and the County of Kent,
Delaware.

(See Docket Entry 2 at 59-72.)

To the extent Plaintiff

has lodged the instant claim(s) against a local governmental entity
and/or against persons in their official capacities, “it must be
shown that the actions of [persons employed by such an entity] were
unconstitutional and were taken pursuant to a custom or policy of
the entity.”

Giancola v. State of W. Va. Dep’t of Pub. Safety, 830

F.2d 547, 550 (4th Cir. 1987) (emphasis added) (citing Monell v.
Department of Soc. Servs., 436 U.S. 658, 690–92, and observing that
official capacity suits actually target employing entity); accord
Board of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S.
397, 403 (1997) (“[L]ocal governmental bodies . . . may not be held
liable

under

§

1983

solely

because

[they]

employ[]

a

tortfeasor. . . . Instead, in Monell and subsequent cases, [the
Supreme

Court]

ha[s]

required

a

plaintiff

seeking

to

impose

liability on a [local governmental body] under § 1983 to identify

15

a

[local

governmental]

plaintiff’s injury.”).

‘policy’

or

‘custom’

that

caused

the

Accordingly, Plaintiff must show that a

“constitutional injury [wa]s proximately caused by a written policy
or ordinance, or by a widespread practice that is ‘so permanent and
well settled as to constitute a “custom or usage” with the force of
law.’”

McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 954 (M.D.N.C.

2011) (Beaty, C.J.) (quoting City of St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988)), rev’d in part on other grounds, 703 F.3d 636
(4th Cir. 2012).

Plaintiff’s Complaint makes no allegation that

the events it describes resulted from a particular policy or custom
promulgated by any of the relevant governmental bodies.
Docket Entry 2.)

(See

Nor does the Complaint set forth factual matter

sufficient to establish that the named supervisory Defendants had
policymaking power in their respective organizations and/or to
identify any policy or custom promulgated by said Defendants.
(Id.)
Moreover, several of the supervisory Defendants the Complaint
names are state officials.

State officials acting in their

official capacities do not constitute “persons” for purposes of
§ 1983 liability. Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71 (1989).

The Complaint’s claims against the Delaware

Attorney General supervisory Defendants, the Delaware State Police
supervisory

Defendants,

and

the

Family

Court

of

Delaware

supervisory Defendants thus fail to the extent they identify those

16

Defendants in their official capacities.

See Buchanan v. Gay, 491

F. Supp. 2d 483, 493 (D. Del. 2007) (identifying Delaware State
Police as state agency not subject to § 1983 claims); Poole v.
Brady, No. Civ.A.05-233-JJF, 2005 WL 3307067, at *2 (D. Del. Dec.
2, 2005) (unpublished) (finding Delaware Family Court is state
entity immune from § 1983 suits); Manchester v. Rzewnicki, 777 F.
Supp. 319, 326 (D. Del. 1991) (recognizing Attorney General of the
State of Delaware and Deputy Attorneys General as state officials
and thus not subject to § 1983 official capacity suits).
In addition to the official capacity claims, the Complaint
alleges various claims concerning failure to supervise, to control,
and/or

to

train

against

individual capacities.
officials

may

be

the

supervisory

Defendants

(Docket Entry 2 at 68-72.)

liable

under

§

1983

[in

in

their

“Supervisory

their

individual

capacities] if ‘(1) . . . the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed “a
pervasive

and

unreasonable

risk”

of

constitutional

injury

to

citizens like the plaintiff; (2) . . . the supervisor’s response to
that

knowledge

was

so

inadequate

as

to

show

“deliberate

indifference to or tacit authorization of the alleged offensive
practices []”; and (3) . . . there was an “affirmative causal link”
between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.’”

McFadyen, 786 F. Supp. 2d at

963 (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994))

17

(alterations provided by McFadyen).

Other recent authority has

further fleshed out the foregoing requirements:
To meet the first requirement, the plaintiff must proffer
evidence that the misconduct has occurred on other
occasions or is “widespread.” [Shaw, 13 F.3d at 799.]
Further, to establish that the supervisor’s response is
deliberately indifferent, the plaintiff must show the
supervisor’s “‘continued inaction in the face of
documented widespread abuses,’” which is a “heavy
burden.” Id. (quoting Slakan v. Porter, 737 F.2d 368,
372-73 (4th Cir. 1984)). Finally, the plaintiff may show
an affirmative causal link between the supervisor’s
response and the plaintiff’s injury when the injury is a
“natural consequence[ ]” of the supervisor’s inaction.
Id. at 800 (quoting Slakan, 737 [F.2d] at 376).
Goodwin v. Beasley, No. 1:09CV151, 2011 WL 238640, at *1 (M.D.N.C.
Jan. 24, 2011) (Tilley, J.) (unpublished).

For the reasons that

follow, the Court should dismiss these individual capacity claims.
1.

Durham County Supervisory Defendants

The factual allegations contained in the Complaint against the
Durham County supervisory Defendants (i.e., Defendants Ruffin,
Hill, Andrews, Martin, Ladd, Harris, Davis, and McMillian) based on
any alleged supervisory authority fail for several reasons. First,
the Complaint contains no allegations whatsoever against Defendants
Ruffin, Ladd, Harris, or McMillian, except to identify their
employment responsibilities in the “PARTIES” section.
Entry 2.)

(See Docket

Moreover, the Complaint does not allege “widespread”

misconduct of which any of the Durham supervisory Defendants knew,
and certainly does not allege “continued inaction in the face of
documented widespread abuses,” Shaw, 13 F.3d at 799.

18

At most, it

alleges only conclusorily that Defendants “had contemporaneous
knowledge through the chain of command that [Defendants] Reimann[]
and Whitfield was [sic] conducting manipulative investigative
procedures that violated constitutional standards.”
2 at 59.)

(Docket Entry

It further states that the supervisory Defendants gave

Defendant Reimann authority to investigate Plaintiff, “had actual
or constructive knowledge that [she] had no reason to continue any
investigation against Plaintiff,” and “had actual or constructive
knowledge that [she] had authorized and/or personally engaged in
decisions from which it would have been plainly obvious . . . that
violations of Plaintiff’s constitutional rights inevitably would
occur” (id. at 60-62).
the

“heavy

burden,”

These conclusory allegations do not meet
Shaw,

13

F.3d

at

599,

of

establishing

deliberate indifference.
Furthermore, the claims against these supervisors fail for the
same reasons the claims against the subordinates fail.
extent

they

call

into

question

Plaintiff’s

state

To the
criminal

convictions, these claims cannot proceed under Heck, 512 U.S. at
486-87.

To the extent they do not call the convictions into

question, as discussed previously, the Complaint fails to state a
claim of constitutional deprivation by the subordinates, see supra,
Sections III.A. & B.
the

party

of

a

“There can be no liability under § 1983 on

supervisory

official

19

in

the

absence

of

a

constitutional violation on the part of those supervised.” Huggins
v. Weider, 105 F. App’x 503, 506 (4th Cir. 2004).
2.

Delaware State Police Supervisory Defendants

The Complaint’s claims against supervisory Defendants within
the Delaware State Police (i.e., Defendants Coupe, Paige, Purcell,
and Simpson) fail for similar reasons.

First, the Complaint again

does not make any specific allegations against any of these
Defendants, except to outline their employment responsibilities in
the “PARTIES” section.

(See Docket Entry 2.)

Moreover, it again

only conclusorily alleges that these Defendants collectively “had
contemporaneous
[Defendant]

knowledge

Weaver

was

through

the

conducting

chain

of

manipulative

command

that

investigative

procedures that violated constitutional standards” (id. at 63) and
that

“[i]t

policymaker”

would
that

have

been

Defendant

plainly
Weaver’s

obvious

to

conduct

a

reasonable

would

deprive

Plaintiff of his constitutional rights (id.; see also id. at 6365).

Such conclusory allegations do not suffice to state a claim

against the Delaware State Police supervisory Defendants.

In

addition, as discussed previously, see supra, Section III.C.1.,
claims against these supervisory Defendants fail because they call
into question Plaintiff’s criminal convictions, see Heck, 512 U.S.
at 486-87, or, alternatively, because the Complaint fails to
articulate a claim against the subordinate, Defendant Weaver, see
Huggins, 105 F. App’x at 506.

20

3.

Delaware Family Court Supervisory Defendants

The Complaint next alleges that supervisory Defendants within
the Delaware Family Court system (i.e., Defendants Mange, Kuhn, and
Nicholas)

“failed

to

take

adequate

or

meaningful

steps

to

discipline [Defendant] Jones, [a Delaware Family Court Commissioner
(Docket Entry 2 at 11),] or correct his behavior, when they had
knowledge that he had issued a [restraining order], even by
default, that he knowingly had no jurisdictional authority over”
(id. at 66).

Although suffering from all of the same defects as

the allegations against other supervisory defendants described
above, see supra, Sections III.C.1. & 2., this allegation fails on
a more fundamental level in that it calls into question a judicial
act (or failure to act).

“Judges performing judicial acts within

their jurisdiction are entitled to absolute immunity from civil
liability claims.”

In re Mills, 287 F. App’x 273, 279 (4th Cir.

2008); see also Jones v. Meconi, Civil Action No. 05-332 GMS, 2006
WL 2819762, at *5 n.4 (D. Del. Sept. 30, 2006) (unpublished)
(“Commissioners of the Family Court are entitled to judicial
immunity because they perform most of the same functions as a
Family Court judge.”).

In order to “correct” Defendant Jones’

judicial action (i.e., issuing a restraining order), the Delaware
Family Court supervisory Defendants would have to act in their
capacity as judicial officers to reverse or dismiss said order.
Such action, or decision not to act, is absolutely immune from

21

civil liability claims.

See In re Mills, 287 F. App’x at 279.

Furthermore, any “failure to take adequate or meaningful steps to
discipline

[Defendant]

Jones”

(Docket

Entry

2

at

66)

beyond

reversing his issuance of the restraining order would have had no
effect on Plaintiff or his case in the Delaware courts and thus
cannot serve as the basis for a cognizable § 1983 claim.
D.

Conspiracy

The Complaint next alleges a series of conspiracy claims:
(1)

that

several

Defendants

“conspired

and

entered

into

express and/or implied agreements, understandings, or meetings of
the

minds

among

themselves

to

deprive

Plaintiff

of

his

constitutional rights by charging and prosecuting him on charges
which these Defendants knew were not supported by probable cause”
in violation of 42 U.S.C. § 1983 (Docket Entry 2 at 73);
(2)

that

several

Defendants

“conspired

and

entered

into

express and/or implied agreements, understandings, or meetings of
the minds among themselves for the purpose of impeding, hindering,
obstructing and defeating the due course of justice in the States
of North Carolina and Delaware, with the intent to deny Plaintiff
the equal protection of the laws” in violation of 42 U.S.C.
§ 1985(2) (id. at 75);
(3)

that

several

Defendants

“conspired

and

entered

into

express and/or implied agreements, understandings, or meetings of
the minds among themselves for the purpose of depriving, either

22

directly or indirectly, Plaintiff of the equal protection of the
laws and of his equal privileges and immunities under the laws” in
violation of 42 U.S.C. § 1985(3) (id. at 77); and
(4) that several supervisory Defendants “had prior knowledge
of the wrongs conspired to be committed” by various Defendants,
“had the power to prevent or aid in preventing the commission of
[said] wrongs . . . but [] neglected and/or refused to exercise
such power” in violation of 42 U.S.C. § 1986 (id. at 78-79).
Each

of

these

claims

apparently

criminal prosecution in Delaware.

relates

to

Plaintiff’s

As discussed previously, see

supra Section III.A., Plaintiff may not pursue claims that call
into question prior convictions without first showing that such
convictions have been reversed on direct appeal, expunged by
Executive Order, declared invalid by a state tribunal, or, finally,
called into question by a federal court through the issuance of a
writ

of

habeas

corpus,

Heck,

512

U.S.

at

486-87.

“Because

[Plaintiff] has made no [such] showing . . . his claims are not
cognizable under § 1983 or under 42 U.S.C. § 1985[].”

Poston v.

Shappert, 222 F. App’x 301, 301 (4th Cir. 2007) (citing with
approval Stephenson v. Reno, 28 F.3d 26, 26-27 & n.1 (5th Cir.
1994), which applies holding in Heck to 42 U.S.C. § 1985 claim);
see also Browdy v. Karpe, 131 F. App’x 751, 753 (2d Cir. 2005)
(applying holding in Heck to plaintiff’s §§ 1983, 1985, and 1986
claims).

23

E.

State Law Claims

Plaintiff’s only remaining claims arise under state law.5
“[I]n any civil action of which the district courts have original
jurisdiction, the district courts have supplemental jurisdiction
over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same
case

or

controversy

under

Article

III

of

the

United

States

Constitution.” 28 U.S.C. § 1367(a). However, “the district courts
may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if . . . the district court has dismissed all
claims over which it has original jurisdiction.”
§ 1367(c)(3).

28 U.S.C.

“It has consistently been recognized that pendent

jurisdiction is a doctrine of discretion, not of plaintiff’s right
. . . .

[I]f the federal claims are dismissed before trial, even

though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.” United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966).

In light of the recommended

dismissal of the federal claims at the pleading stage and the

5

Plaintiff’s tenth and eleventh causes of action “MALICIOUS PROSECUTION AND CONSPIRACY” and “OBSTRUCTION OF JUSTICE
AND CONSPIRACY,” respectively - do not specifically invoke North
Carolina law.
(See Docket Entry 2 at 80-83.)
However,
particularly in light of the fact that Plaintiff has separate
claims for malicious prosecution and obstruction of justice under
federal law (see id. at 54-56, 72-76), the Court interprets these
claims as falling under North Carolina law.
24

absence of grounds for the exercise of diversity jurisdiction,6 the
Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims and, instead, should dismiss those
claims without prejudice.
IV.

CONCLUSION

Plaintiff’s Complaint fails to state a viable federal claim
and the Court should decline to hear the related state claims.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that the federal claims in this action be
dismissed under 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim and for seeking damages against Defendants with immunity from
such relief and that the related state claims be dismissed under 28
U.S.C. § 1367(c)(3).7

6

The Complaint identifies Plaintiff as “a citizen and
resident of North Carolina” (Docket Entry 2 at 7) and numerous
Defendants as citizens of and/or organizations incorporated in
North Carolina (id. at 11-15). Such circumstances cannot satisfy
the diversity jurisdiction statute. See 28 U.S.C. § 1332(a); Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)
(“[T]he presence in the action of a single plaintiff from the same
State as a single defendant deprives the district court of original
diversity jurisdiction over the entire action.”).
7

This Recommendation urges dismissal of several of the
claims in part because they impermissibly call into question
Plaintiff’s state criminal convictions in violation of Heck, 512
(continued...)
25

IT IS FURTHER ORDERED that the Motion to Allow Plaintiff
Linwood

Wilson

to

Use

the

CM/ECF

System

to

File

Documents

Electronically (Docket Entry 4) is DENIED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 8, 2013

7

(...continued)
U.S. at 486-87. Courts generally dismiss claims under Heck without
prejudice to the plaintiff refiling his claim should he meet the
Heck requirements in the future. See, e.g., Goldman v. Brannon,
No. 5:11-CT-3051-FL, 2013 WL 5217771, at *7 (E.D.N.C. Sept. 17,
2013) (unpublished); Caldwell-Bey v. Poll, No. 3-13-cv-212-RJC,
2013 WL 1800016, at *2 (W.D.N.C. Apr. 29, 2013) (unpublished).
26