LORE, et al v. WILKES, et al

Filing 5

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/01/2013; that Plaintiffs' Applications for Leave to Proceed In Forma Pauperis (Docket Entries 1 , 2 ) are GRANTED FO R THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, for failure to state a claim, and due to its pursuit of damages from a Defendant with immunity from such relief. (Garland, Leah)

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

DAVID EDWARD LORE JR. and ANGELA
LORE,
Plaintiffs,
v.
SANDRA WILKES – DIRECTOR OF ROWAN
COUNTY DEPT. OF SOCIAL SERVICES,
et al.,
Defendants.

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1:12CV165

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiffs’ Applications
for Leave to Proceed In Forma Pauperis (Docket Entries 1, 2), filed
in conjunction with their pro se Complaint (Docket Entry 3).

The

Court will grant Plaintiffs’ Applications for the limited purpose
of recommending dismissal of this action pursuant to 28 U.S.C. §
1915(e)(2)(B) for frivolity, failure to state a claim, and pursuit
of damages from a Defendant with immunity from such relief.1
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

1

Plaintiffs’ Applications list monthly income beyond their
reported joint expenses. (See Docket Entry 1 at 1-3; Docket Entry
2 at 1-3.) However, given the recommendation of dismissal, no need
exists to address further their ability to pay the filing fee.

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 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

elastic

categorical definition. . . .

and

not

“The word

susceptible

to

The term’s capaciousness directs

lower courts to conduct a flexible analysis, in light of the

2

totality of the circumstances, of all factors bearing upon the
frivolity of a claim.”

Nagy, 376 F.3d at 256-57 (some internal

quotation marks omitted).

In considering such matters, this Court

may “apply common sense.”

Nasim, 64 F.3d at 954.

Alternatively, a plaintiff “fails to state a claim upon which
relief may be granted,” 28 U.S.C. § 1915(e)(2)(b)(ii), when the
complaint 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)).

“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-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.”
2

Id.2

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
(continued...)
3

The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B)
generally applies to situations in which doctrines established by
the

United

States

Constitution

or

at

common

law

immunize

governments and/or government personnel from liability for damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984) (discussing sovereign immunity of states and state officials
under Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967)
(describing interrelationship between 42 U.S.C. § 1983 and commonlaw

immunity

doctrines,

such

as

judicial,

legislative,

and

prosecutorial immunity); cf. Allen v. Burke, 690 F.2d 376, 379 (4th
Cir. 1982) (noting that, even where “damages are theoretically
available under [certain] statutes . . ., in some cases, immunity
doctrines and special defenses, available only to public officials,
preclude or severely limit the damage remedy”).
DISCUSSION
Plaintiffs’ Complaint asserts the following claims “pursuant
to 42 U.S.C. § 1983” (Docket Entry 3 at 1):

2

(...continued)
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 Office
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)).
4

1) Defendant Kris Sapper of the Rowan County Department of
Social Services and/or Defendant John Brindle of the Rowan County
Sheriff’s

Office

illegally

searched

Plaintiffs’

residence

on

February 17, March 21, and March 23, 2011, in violation of the
First and Fourteenth Amendments to the United States Constitution
(id. at 3-4);3
2) Defendant Brindle and Defendant John Doe #16 of the Rowan
County

Animal

Control

entity

illegally

searched

“Pet

Place

([Plaintiff] Angela Lore’s place of business)” on March 23, 2011,
in violation of the First and Fourteenth Amendments (id. at 4);

3

As to this and several other aspects of Plaintiffs’ § 1983
claims, the Complaint purports to rely on violations not only of
the United States Constitution, but also the North Carolina
Constitution. (See Docket Entry 3 at 3-6.) However, “violations
of state law are not cognizable under § 1983.” Love v. Peppersack,
47 F.3d 120, 124 n.5 (4th Cir. 1995) (citing Clark v. Link, 855
F.2d 156, 161 (4th Cir. 1988)); accord Gantt v. Whitaker, 57 F.
App’x 141, 146 (4th Cir. 2003) (declaring that “§ 1983 does not
provide redress for violations of state law” (citing White v.
Chambliss, 112 F.3d 731, 738 (4th Cir. 1997))). Similarly, the
allegations of the Complaint regarding citizenship (see Docket
Entry 3 at 2-3) foreclose the exercise of diversity jurisdiction
over any state-law claims, see 28 U.S.C. § 1332(a). Finally, to
the extent one could read the Complaint to assert state-law claims
over which the Court would possess supplemental jurisdiction, see
28 U.S.C. § 1367(a), such claims should not proceed, in light of
the recommendation of dismissal of all federal claims.
See 28
U.S.C. § 1367(c)(3) (“[T]he 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.”); United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966) (“It has consistently been recognized that
pendent jurisdiction is a doctrine of discretion, not of [the]
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.”).
5

3) “[b]etween the dates of February 16th 2011 and March 23rd
2011, [Defendant] Sapper did conduct multiple interviews with 4 of
[Plaintiffs’] children while the children were in the private
residence of [extended family members] and without the consent or
knowledge of [Plaintiffs] . . . [in] violation of the 4th Amendment
and the 14th Amendment” (id.);
4) “[b]etween the dates of March 23, 2011 and March 30, 2011,
[Plaintiff Angela] Lore was confined to the Rowan County Detention
Center

.

.

medications

.

[where]

[were]

[d]uring

removed

processing

from

her

.

person

.

.

and

her

asthma

seized

by

[Defendant] Jane Doe #1 . . . [and Plaintiff Angela Lore] was
denied

medically

necessary

asthma

medicine

despite

repeated

attempts to secure such medication . . . [from Defendants] John and
Jane Doe [##] 1-8 . . . in violation of the 8th Amendment and 14th
Amendment to the United States Constitution” (id. at 4-5; see also
id. at 7 (identifying “[Defendants] John & Jane Doe #[#] 1-15
. . . as officers at the Rowan County Detention Center”));
5) “[b]etween the dates of March 23, 2011 and March 30, 2011,
[Plaintiff David] Lore was confined to the Rowan County Detention
Center . . . [where he] was denied medically necessary access to
his CPAP machine to control his severe sleep apnea despite repeated
attempts to [Defendants] John Doe #[#] 9-14 to secure the equipment
. . . [in] violation of the 8th Amendment and 14th Amendment” (id.
at 5; see also id. at 7 (identifying “[Defendants] John & Jane Doe

6

#[#]

1-15

.

.

.

as

officers

at

the

Rowan

County

Detention

Center”));4
6) during that same week, “[Plaintiff David] Lore was subject
to being held in an isolated cell with minimum time outside of his
cell (2 hours per day) and was denied personal grooming materials
required to be provided to prisoners . . . [in] violation of the 8th
Amendment and the 14th Amendment” (id. at 5); and
7) on March 23, 2011, Defendant G.L. Jones, a Rowan County
Magistrate, “issued a secured bond order in the amount of $250,000
against [Plaintiffs] . . . [which] amount was more than 12 times
the amount supported by court guidelines for bond amounts despite
the fact that all mitigating circumstances described [in state law]
were met in favor of [Plaintiffs] . . . [in] violation of the 8th
Amendment and the 14th Amendment” (id. at 5-6).
Under

the

heading

“PARTIES,”

in

addition

to

the

above-

referenced Defendants Sapper, Brindle, Jones, and John/Jane Doe
##1-16 (each of whom it purports to name only in their “individual
capacit[ies]”
Defendants:

(id.

at

6-7)),

the

Complaint

identifies

as

1) Sandra Wilkes, Director of Rowan County Department

of Social Services (id. at 2); 2) Kevin Auten, Sheriff of Rowan

4

The Complaint further alleges that, “[o]n April 6, 2011,
[Plaintiff David] Lore was confined to the Rowan County Detention
Center . . . [and] was denied medically necessary access to his
CPAP machine to control his severe sleep apnea despite repeated
attempts to secure the equipment . . . [from Defendant John Doe #15
to whom Plaintiff David] Lore again explained his medical condition
and his need for his CPAP device.” (Docket Entry 3 at 6.)
7

County (id.); and 3) the “Rowan County Magistrate’s Office” (id.).
Further, although the “PARTIES” Section of the Complaint omits any
reference to him, the caption of the Complaint lists “Clai Martin
– Director of Rowan County Animal Control” as a Defendant. (Id. at
1.) According to the Complaint, Plaintiffs wish to proceed against
Defendants Wilkes, Auten, Rowan County Magistrate’s Office, and
Martin only in their “official capacit[ies].”

(Id. at 6-7.)

The Complaint seeks “a declaratory judgment that the actions
of [] [D]efendants violated the United States Constitution[, as
well as] . . . compensatory damages . . . [and] punitive damages
. . . .”

(Id. at 8.)

The Court should dismiss this action

pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, for failure to
state a claim, and due to its pursuit of damages from a Defendant
with immunity from such relief.
Searches of Plaintiffs’ Residence
In assessing the viability of Plaintiffs’ claims regarding the
three alleged illegal searches of their residence (see Docket Entry
3 at 3-4), the Court properly may take judicial notice that North
Carolina Department of Public Safety records document Plaintiffs’
convictions in Rowan County on October 31, 2011, for using and
possessing

drug

paraphernalia

on

March

23,

2011,

and

for

contributing to the delinquency of a minor on January 20, 2010, see
www.doc.state.nc.us (“Offender Public Information” searches for

8

“David Lore” and “Angela Lore” last performed on Oct. 28, 2013);5
see also Fed. R. Evid. 201(b) (“The court 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.”); 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 of initial
screening of pro se complaint under 28 U.S.C. § 1915A).
Those convictions have significance to the Court’s instant
inquiry under 28 U.S.C. § 1915(e)(2), because:
to recover damages for . . . harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct

5

Said records further establish Plaintiff David Lore’s
conviction on October 31, 2011, for three other counts of
contributing to the delinquency of a minor (on November 28, 2009,
January 27 and August 29, 2010, respectively), and Plaintiff Angela
Lore’s conviction on October 31, 2011, for an additional count of
contributing to the delinquency of a minor (on July 27, 2010).
9

appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of
a writ of habeas corpus. A claim for damages bearing
that relationship to a conviction or sentence that has
not been so invalidated is not cognizable under § 1983.
Thus, when a [plaintiff] seeks damages in a § 1983 suit,
the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already
been invalidated.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (internal footnote
and citation omitted) (emphasis added).
In this case, the Complaint specifically alleges that, during
the searches of their residence on February 17, March 21, and March
23, 2011, Defendants Sapper and/or Brindle collected evidence for
use

in

connection

with

criminal

charges

instituted

against

(See Docket Entry 3 at 3-4.)

Plaintiffs on March 23, 2011.

Moreover, the Complaint asserts that the material omission of
Defendant Brindle’s participation in the search of Plaintiffs’
residence on March 21, 2011, rendered illegal the search of their
residence on March 23, 2011. (See id.) “If [Plaintiffs] succeed[]
in demonstrating in this § 1983 case that [the searches of their
residence] w[ere] illegal, the illegality of the search[es] would
require the suppression of the evidence seized.

[Further, the

Complaint] has advanced no circumstances . . . to suggest how the
state

could

convict

[them

of

the

drug

paraphernalia

and

contributing-to-delinquency-of-minors offenses] if the [searches of

10

their residence] were to have been found illegal.”
Owens, 352 F.3d 842, 847 (4th Cir. 2003).

Ballenger v.

Finally, the Complaint

does not allege that invalidation of those convictions already has
occurred.

(See Docket Entry 3 at 1-8.)

Given
dismiss

the

the

Humphrey.”

foregoing

Complaint

considerations,

without

prejudice

“the

Court

pursuant

to

[should]
Heck

v.

Stiles, 2013 WL 3455942, at *2 (dismissing action

“alleging that [the plaintiff’s] Fourth Amendment rights were
violated when officers came to his residence with [an illegal]
search warrant,” where he “ha[d] not alleged in his [c]omplaint
that his underlying conviction [for a child sexual offense] ha[d]
been reversed or otherwise invalidated”).
Search of Plaintiff Angela Lore’s Workplace
The Complaint alleges that Defendant Brindle “enter[ed] Pet
Place . . . and instructed [Defendant] John Doe #16 . . . to enter
a closed door to at [sic] the rear of the store and conduct a
search for any evidence of criminal activity. [Defendant] John Doe
#16 proceeded to conduct a search of the storage area.”
Entry 3 at 4.)

(Docket

“The Fourth Amendment protects the ‘right of the

people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures’ by the government or
its agents.” United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

11

1998) (quoting U.S. Const. amend. IV) (emphasis added).6

Fourth

Amendment

“‘that

jurisprudence,

however,

rejects

the

notion

business premises may not reasonably be inspected in many more
situations than private homes.’” United States v. Golden, 413 F.2d
1010, 1011 (4th Cir. 1969) (quoting See v. City of Seattle, 387
U.S. 541, 546 (1967)) (internal ellipses omitted).

In particular,

no Fourth Amendment violation occurs when a government official
conducts “an inspection of business premises open to the public and
a proprietor [] ma[kes] no objection to the inspection.”

Id.; see

also United States v. Ealy, 363 F.3d 292, 295 n.1 (4th Cir. 2004)
(“reject[ing] [the defendant’s] contention that the officers’
warrantless entry into the garage violated his Fourth Amendment
rights,” where the officers “entered the garage in precisely the
manner that potential customers entered”).
In connection with Plaintiffs’ claim that an illegal search of
their residence took place on February 17, 2011, the Complaint
expressly

alleges

that

Defendant

Sapper

“had

not

received

permission or a warrant to enter the premises.” (Docket Entry 3 at
3.)

Similarly, as to the claim regarding the search on March 21,

2011, the Complaint affirmatively declares that Defendants Sapper
and Brindle “again entered the residence of [Plaintiffs] without

6

“The Fourth Amendment is enforceable against the States [and
their subdivisions] through the Fourteenth Amendment.” Camara v.
Municipal Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 528
(1967).
12

permission or a warrant.”

(Id.)

Plaintiffs’ claim concerning the

search of Pet Place, however, conspicuously omits any allegation
that Defendants Brindle and John Doe #16 acted without consent from
a proprietor of the business or without a warrant.

(See id. at 4.)

Nor does the Complaint contain any factual matter indicating that
Defendants Brindle and John Doe #16 initially entered Pet Place in
a manner unlike members of the public.

(See id.)

Under these circumstances, Plaintiffs have failed to state a
claim regarding any search of Pet Place; indeed, the insufficiency
of the allegations rises to the level of legal frivolity.
Interviews of Plaintiffs’ Children
Plaintiffs’ claim predicated on Defendant Sapper’s interviews
of their children similarly falls short as a matter of law.

“Even

if the interviews could be construed as a Fourth Amendment false
arrest

claim,

it

would

be

the

children’s

claim,

not

their

parents[’].” Wright v. Szczur, No. 11CV140S, 2012 WL 268283, at *8
n.15 (W.D.N.Y. Jan. 30, 2012) (unpublished); see also Phillips v.
County of Orange, 894 F. Supp. 2d 345, 378 n.30 (S.D.N.Y. 2012)
(recognizing that parents “do not have cognizable Fourth Amendment
claims

based

official).7

on

[their

child’s]

interview”

by

government

Moreover, to the extent such interviews potentially

7

Given that Plaintiffs have brought this suit in their own
names (see Docket Entry 3 at 1, 2, 8), they lack standing to pursue
(and this Court thus lacks jurisdiction to adjudicate) any such
Fourth Amendment claims of their children. See, e.g., Smith v.
(continued...)
13

implicated Plaintiffs’ Fourteenth Amendment substantive due process
rights, the Complaint does not allege facts that support such a
claim.

See Phillips, 894 F. Supp. 2d at 379-80 (“To state a claim

for violation of a substantive due process right, a plaintiff must
demonstrate that the state action was so shocking, arbitrary, and
egregious that the Due Process Clause would not countenance it even
were it accompanied by full procedural protection. . . .
plaintiffs]

have

not

stated

a

plausible

claim

that

[The
[the]

[d]efendants’ interview of [the plaintiffs’ child] . . . w[as] even
remotely outrageous or conscience shocking . . . .” (internal
citations, footnote, and quotation marks omitted)).

Again, the

patent deficiency of this claim renders it legally frivolous.
Conditions of Pretrial Confinement
For

Plaintiffs’

claims

related

to

their

experiences

as

“pretrial detainee[s], [their] treatment and the conditions of

7

(...continued)
Frye, 488 F.3d 263, 272 (4th Cir. 2007) (describing “dismissal for
lack of standing” as dismissal “for lack of jurisdiction” and
explaining “that under Article III of the United States
Constitution, a plaintiff . . . cannot rest his claim to relief on
the legal rights or interests of third parties”).
This defect
renders any such aspect of the Complaint legally frivolous. See,
e.g., Padilla v. Enzor, 279 F. App’x 606, 615 (10th Cir. 2008)
(“The district court dismissed this claim as frivolous holding [the
plaintiff] does not have ‘standing to raise a claim on behalf of
the prisoners’ families.’ We agree.”). Nor, in light of their pro
se status, could Plaintiffs proceed with a “next friend” action for
their children. See Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d
395, 401 (4th Cir. 2005) (“join[ing] the vast majority of [its]
sister circuits in holding that non-attorney parents generally may
not litigate the claims of their minor children in federal court”).
14

[their] restraint are evaluated under the Due Process Clause of the
Fourteenth Amendment.”

Robles v. Prince George’s Cnty., Md., 302

F.3d 262, 269 (4th Cir. 2002); accord Bell v. Wolfish, 441 U.S.
520, 535 n.16 (1979) (“The Court of Appeals properly relied on the
Due Process Clause rather than the Eighth Amendment in considering
the claims of pretrial detainees.”).

In that regard, “when the

State takes a person into its custody and holds him [or her] there
against his [or her] will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his [or her]
safety and general well-being.”

DeShaney v. Winnebago Cnty. Dep’t

of Soc. Servs., 489 U.S. 189, 199–200 (1989).

In other words,

“when the State by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him [or her]
unable to care for himself [or herself], and at the same time fails
to provide for his [or her] basic human needs — e.g., food,
clothing,

shelter,

medical

care,

and

reasonable

safety

—

it

transgresses the substantive limits on state action set by . . .
the Due Process Clause.”

Id. at 200 (emphasis added).

The following standard applies to claims that government
officials violated a pretrial detainee’s foregoing rights:
First, a constitutional violation occurs only where the
deprivation alleged is “objectively, sufficiently
serious.”
For a claim based on a failure to prevent
harm, a [plaintiff] must show that he [was] detained or
incarcerated “under conditions posing a substantial risk
of serious harm.” . . . Second, an official must have
“a
sufficiently
culpable
state
of
mind.”
In

15

prison[/jail]-conditions cases, the requisite state of
mind is “deliberate indifference.”
Brown v. Harris, 240 F.3d 383, 388–89 (4th Cir. 2001) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (internal citations
and secondary internal quotation marks omitted).8

Plaintiffs have

not alleged factual matter sufficient to satisfy this standard.
First,

the

Complaint

fails

to

set

forth

non-conclusory

allegations which (if accepted as true) would establish that any
seizure of Plaintiff Angela Lore’s asthma medication upon her
processing into the Rowan County Detention Center or any failure to
provide medication to her during the week she spent in pretrial
detention “pos[ed] a substantial risk of serious harm,” id. at 389
(internal quotation marks omitted).

“When addressing whether

asthma represents a medical need of constitutional significance,
courts generally distinguish between the condition itself and its
manifestation, including through asthma attacks.”

Peterson v.

Cecot, No. 9:09CV1056(GTS/DEP), 2011 WL 4343842, at *4 (N.D.N.Y.
Mar.

8,

2011)

(unpublished),

recommendation

8

adopted,

2011

WL

As the Fourth Circuit has observed, Farmer “addressed only
the duties of ‘prison officials’ under the Eighth Amendment.
Farmer, however, merely defined the term ‘deliberate indifference,’
a standard previously employed by the Supreme Court in Estelle v.
Gamble, 429 U.S. 97 (1976), and its progeny. See Farmer, 511 U.S.
at 829. Farmer in no way undermined [the Fourth Circuit’s prior]
holding . . . that the same ‘deliberate indifference’ standard
applies to both inmates and pretrial detainees.
Indeed, other
circuits have imported the Farmer framework into cases involving
pretrial detainees.” Brown, 240 F.3d at 388 n.6 (internal parallel
citations omitted).
16

4343995 (N.D.N.Y. Sept. 14, 2011) (unpublished).

Moreover, “some

asthma ‘attacks’ are mild and brief in duration, while others are
severe, prolonged, and even life threatening.

Courts recognize

this distinction and refuse to fashion a rule that every instance
of failure to treat a . . . detainee’s asthma rises to the level of
a constitutional claim.” Crosby v. Perry, No. 4:09CV139(CDL), 2010
WL 2464887, at *6 n.9 (M.D. Ga. June 14, 2010) (unpublished).
Indeed, “[m]ost courts that have addressed the issue have
required a showing that the asthma attack was severe or that it led
to physical harm.”

Id.

In sum, “[a] plaintiff who fails to allege

and prove that a defendant’s actions have caused or exacerbated
symptomology associated with asthma cannot demonstrate that his or
her condition represents a serious medical need.”
WL 4343842, at *4.

Peterson, 2011

Here, the Complaint contains no allegations

that, while in pretrial detention, Plaintiff Angela Lore endured a
severe asthma attack or suffered any harm from any denial of access
to asthma medication.

(See Docket Entry 3 at 4-5.)

She thus has

failed to state a claim.
Similarly, to the extent Plaintiff David Lore “contends that
[Defendants John Doe ## 9-15] were deliberately indifferent to his
serious medical needs by failing to provide him with a CPAP
(continuous positive airway pressure) machine for his sleep apnea
. . .[,] [n]either his complaint nor [any other record material]
reflects that [he] suffered substantial harm as a result of not

17

receiving CPAP treatment.

Thus, whatever deficiencies there may

have been in [his] treatment, if any, certainly do not rise to the
level of establishing deliberate indifference . . . .”

Washington

v. Thomas, No. 00-20981, 264 F.3d 1140 (table), 2001 WL 822443, at
*1 (5th Cir. June 18, 2001) (unpublished); accord Boles v. Newth,
479 F. App’x 836, 840 (10th Cir. 2012) (affirming dismissal where
the plaintiff “d[id] not allege . . . that being deprived of the
devices [for treating sleep apnea] for several days would place
[him] in imminent harm rather than the theoretical possibility of
such harm”); Pennington v. Mayor of Pike Cnty., No. 2:11CV781TMH,
2011 WL 5102041, at *3 (M.D. Ala. Sept. 30, 2011) (unpublished)
(deeming claim for denial of CPAP machine frivolous and observing
that, “[w]hile [the] [p]laintiff’s sleep without a CPAP machine may
not be as comfortable as it is with one, he has not shown that
[the]

[d]efendants

acted

with

deliberate

indifference

to

his

serious medical needs . . . [because] [h]is factual allegations
fail to establish that [the] [d]efendants were aware of facts from
which an inference of substantial risk of serious harm could be
drawn; that they actually drew that inference; and that their
response indicated that they subjectively intended that harm occur”
(citing Farmer, 511 U.S. at 837)), recommendation adopted, 2011 WL
5101977 (M.D. Ala. Oct. 27, 2011) (unpublished).9

9

In other words, as with Plaintiff Angela Lore’s asthmamedication claim (see Docket Entry 3 at 4), the Complaint merely
(continued...)
18

As a final matter, the Complaint alleges that, while detained
during the week of March 23-30, 2011, Plaintiff David Lore “was
subject to being held in an isolated cell with minimum time outside
of his cell (2 hours per day) and was denied personal grooming
materials required to be provided to prisoners.”

(Docket Entry 3

at 6.) These allegations fail to state a claim, particularly given
the Complaint’s lack of factual matter indicating that he suffered
any harm (see id.).

See, e.g., Harris v. Fleming, 839 F.2d 1232,

1234-35 (7th Cir. 1988) (affirming rejection of constitutional
claim for denial of “basic human needs,” despite fact that the
plaintiff “was not provided with toilet paper for five days . . .
and that he lacked soap, toothbrush, and toothpaste for ten days,”
because “[a]lthough [he] experienced considerable unpleasantness,
he suffered no physical harm”); Kinser v. County of San Bernardino,
No. ED CV 11–0718–RGK (PJW), 2011 WL 4801899, at *4 (C.D. Cal. Aug.
25, 2011) (unpublished) (“[The plaintiff] alleges that she has been
confined to her cell more than 22 hours a day and that she has had

9

(...continued)
asserts in conclusory fashion that the CPAP machine was “medically
necessary” (id. at 5, 6). Bald assertions of that sort do not
suffice. See Iqbal, 556 U.S. at 678. Nor does the Complaint state
a viable claim based on the allegation that, on April 6, 2011,
Plaintiff David Lore “was subject to a variety of threat [sic] made
by other inmates in the presence of [Defendant] John Doe #15
related to his severe sleep apnea . . . [and that Defendant] John
Doe #15 ignored the threats” (Docket Entry 3 at 6), particularly
given that the Complaint lacks any allegation that any inmate ever
acted on any such threat (see id.). See Wilson v. McKeller, 254 F.
App’x 960, 961 (4th Cir. 2007) (“[M]ere threats or verbal abuse,
without more, do not state a cognizable claim under § 1983.”).
19

to eat all her meals in her cell in close proximity to her toilet.
These allegations by themselves do not state a Fourteenth Amendment
conditions of confinement claim.”), recommendation adopted, 2011 WL
4802850

(C.D.

Cal.

Hillsborough

Cnty.

5077001,

*4

at

Oct.

11,

Dep’t

(D.N.H.

2011)

of

Corr.,

Nov.

24,

(unpublished);
No.

O’Mara

08–cv–51–SM,

2008)

2008

(unpublished)

v.
WL

(“[The

plaintiff’s] allegations are insufficient to state a cognizable
constitutional claim.

His complaint that he was afforded only two

hours

time

of

out-of-cell

a

day

does

not

state

a

claim

of

constitutional dimension.”).
Excessive Bail
The United States Constitution states that “[e]xcessive bail
shall not be required . . . .”

U.S. Const. amend VIII.10

The

Complaint alleges that, on March 23, 2011, Defendant Jones set too
high of a secured bond for Plaintiffs.

(Docket Entry 3 at 5-6.)

However, elsewhere, the Complaint makes clear that Plaintiffs’
detention on such bonds ended on March 30, 2011.

(See id. at 4-

5.)11 Plaintiffs thus cannot secure declaratory relief. See Mixson
v. Lombard, C/A No. 2:11-1468, 2011 WL 7052716, at *1-2 (D.S.C.
Aug. 12, 2011) (unpublished) (concluding that, where the complaint

10

“[T]he Eighth Amendment’s proscription of excessive bail
has been assumed to have application to the States through the
Fourteenth Amendment.” Schilb v. Kuebel, 404 U.S. 357, 365 (1971).
11

Moreover, as discussed in a preceding subsection, the Court
properly may take judicial notice that Plaintiffs’ underlying state
criminal cases have concluded with convictions.
20

acknowledged that the plaintiff no longer remained in pretrial
custody on charges as to which the state magistrate allegedly had
set an excessive bail, “[the] [p]laintiff is not entitled to the
declaratory relief that he seeks . . . because he does not ask the
court to define the parties’ rights in the future, he seeks merely
a declaration from the court that [the state magistrate] violated
his rights in the past”), recommendation adopted, 2012 WL 137871
(D.S.C. Jan. 18, 2012) (unpublished); Mack v. Fox, No. 1:07CV760,
2008 WL 4832995, at *2 (M.D.N.C. Nov. 4, 2008) (unpublished)
(deeming request for declaratory relief as to actions of state
magistrates moot where underlying state charges no longer stood),
recommendation adopted, 2008 WL 7674789 (M.D.N.C. Dec. 10, 2008)
(unpublished).

Further, “[a]s judicial officers, magistrates are

entitled to absolute immunity for acts performed in their judicial
capacity.”

Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987).

The setting of bond constitutes such action and thus Defendant
Jones possesses absolute immunity from damages as to the instant
claims.

See, e.g., El-Bey v. City of Thomasville, No. 1:11CV413,

2012 WL 1077896, at *1-2 (M.D.N.C. Mar. 30, 2012) (unpublished)
(describing state magistrate’s establishment of bond as action
taken in “official judicial capacit[y] . . . [thus] entitl[ing]
[her]

to

absolute

immunity

against

damages”),

recommendation

adopted, 2013 WL 5461819 (M.D.N.C. Sept. 30, 2013) (unpublished).

21

Official Capacity Claims
Plaintiffs’

official

capacity

claims

against

Defendants

Wilkes, Auten, and Martin (see Docket Entry 3 at 6-7) constitute
claims “against the governmental entity employing [each of them],”
Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006), i.e., the
Rowan County Department of Social Services, the Office of Sheriff
of Rowan County, and the Rowan County Animal Control entity,12
respectively.

The Complaint similarly names the Rowan County

Magistrates Office in its “official capacity.”
7.)

(Docket Entry 3 at

Assuming for purposes of discussion only that the foregoing

entities each qualify as a person subject to suit under § 1983, “it
must

be

shown

that

the

actions

of

[their

employees]

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) (citing Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 690–92 (1978)); accord Board of Cnty.
Comm’rs of Bryan Cnty., Okla., 520 U.S. 397, 403 (1997) (“[L]ocal
governmental bodies . . . may not be held liable under § 1983
solely because [they] employ[ed] a tortfeasor. . . .

Instead, in

Monell and subsequent cases, [the Supreme Court] ha[s] required a

12

North Carolina law provides that “[a] county may appoint one
or more animal control officers and may fix their salaries,
allowances, and expenses.” N.C. Gen. Stat. § 67–30. It appears
that, for purposes of organization, counties often place such
officers within county health departments. See, e.g., Hearne v.
Sherman, 350 N.C. 612, 613-14, 516 S.E.2d 864, 865 (1999).
22

plaintiff seeking to impose liability on a [local governmental
body] under § 1983 to identify a [local governmental] ‘policy’ or
‘custom’ that caused the plaintiff’s injury.”).
For reasons stated in the preceding subsections, the Complaint
lacks factual matter showing unconstitutional actions by employees
of the entities in question.

Further, the Complaint fails to

allege facts which (if accepted as true) would establish that any
constitutional violations occurred pursuant to a custom or policy
of such entities.

(See Docket Entry 3 at 1-8.)

To the contrary,

the Complaint expressly asserts that “[Defendants] Sapper, Brindle,
Jones, and John & Jane Does [## 1-16] . . . violate[d] their own
department’s [sic] regulations and internal policies.” (Id. at 8.)
Plaintiffs’ official capacity claims thus fail as a matter of law.
CONCLUSION
The Court should dismiss Plaintiffs’ Complaint for frivolity,
failure to state a claim, and pursuit of damages from a Defendant
with immunity from such relief.
IT IS THEREFORE ORDERED that Plaintiffs’ Applications for
Leave to Proceed In Forma Pauperis (Docket Entries 1, 2) are
GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER
A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) as frivolous, for failure to state a claim,

23

and due to its pursuit of damages from a Defendant with immunity
from such relief.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 1, 2013

24