DUPREE v. CITY OF LEXINGTON POLICE DEPARTMENT
Filing
4
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, signed by MAG/JUDGE L. PATRICK AULD on 5/17/2012; Ordering that Plaintiff's instant 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. Recommending that this action be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(e)(2), as frivolous, for failing to state a claim, and due to the immunity of a Defendant. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANTHONY DUPREE, JR.,
Plaintiff,
v.
CITY OF LEXINGTON POLICE DEPT.,
et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
1:12CV345
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 with
Plaintiff’s pro se form Complaint (Docket Entry 2). The Court will
grant Plaintiff’s request to proceed as a pauper for the limited
purpose of recommending dismissal of this action, under 28 U.S.C.
§ 1915(e)(2), as frivolous, for failing to state a claim, and/or
due to the immunity of a defendant.
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 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).
In
assessing such matters, this Court may “apply common sense.”
Nasim, 64 F.3d at 954; see also Nagy, 376 F.3d at 256-57 (“The word
‘frivolous’
is
inherently
categorical definition.
elastic
. . .
and
not
susceptible
to
The term’s capaciousness directs
lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.” (some internal quotation marks omitted)).
2
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
Twombly, 550 U.S. 544, 570 (2007)).
Bell
Atlantic
Corp.
v.
“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.”
1
Id.1
Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (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
The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B)
generally applies when doctrines established by the United States
Constitution
or
at
common
law
immunize
governments
and/or
government personnel from 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 common-law immunity doctrines, such as
judicial, legislative, and prosecutorial immunity).
DISCUSSION
At various points, Plaintiff’s Complaint names as Defendants:
1) the “City of Lexington Police Dept.” and three of its
officers (“Officer Matthew White,” “Officer Fritz,” and “Officer
English”) (Docket Entry 6 at 1-3, 5, 6, 23, 24);
2) “Calicutt Realty, Inc.” (id. at 1, 2, 6, 23);
3) the “Davidson County Magistrate Office” (id. at 6);
4) the “City of Lexington Sheriff Dept.” (id. at 1, 2, 5, 23);
5) “Carrol C. Wall, Attorney” (id. at 1, 2, 6, 23);
6) various media entities (id. at 1, 2, 5, 6, 23); and
7) the “City of Lexington Sanitation Dept.” and a supervisor
in that Department (“Jeff Everhart”) (id. at 1, 2, 5, 23).
Under the heading “STATEMENT OF CLAIM,” the type-written
instructions on the form Complaint direct:
as possible the FACTS of your case.
4
“State here as briefly
Do this by identifying the
alleged legal wrong and by describing how each defendant . . . is
personally responsible for depriving you of your rights.
relevant times, dates, and places.”
Include
(Id. at 4.)
In the space beneath that admonition, the Complaint makes
references to 42 U.S.C. §§ 1983 and 1985, as well as the United
States Constitution, and appears to identify “the alleged legal
wrongs”
committed
suppression
of
due
by
Defendants
process,
as
“rational
deprivation
[sic]
basis
of
test[,]
character,
slander, libel, harrassment [sic], [and] inflicting mental and
spiritual injury upon a sick person.”
(Id.)2
It then states:
It is obvious that the officials and their networking
sources shuns [sic] the idea of fairness, sympathy and
empathy in administering the sacred laws of the land,
principles and laws that many of my military comrades &
I have fought and given their [sic] lives to protect and
defend.
The City of Lexington and their officials has [sic] made
it apparent, that their interest is not the fulfillment
of justice, but to continue to stall and delay and
postpone until they can devise other malicious and wicked
lies and schemes in which they purport to the various
vehicles of the media without any evidence and conviction
whatsoever.
They have violated every area of our court’s [sic]
standards and procedures – using their court appointed
attorneys as Judas Goats.
Therefore it is impossible to receive a fair and
impartial trial. One in which they know all too well has
trump [sic] up and fabricated by false arrest and
2
The hand-written portions of the Complaint do not take a
consistent approach to capitalization. (See Docket Entry 2 at 125.) In quoting the Complaint, this Memorandum Opinion utilizes
standard capitalization conventions for ease of reading.
5
harassment by their law-enforcement officials because of
[Plaintiff’s] political, socio-economic and cry of
injustice toward the home-less.
I seek removal because of these blatant facts.
For a list of tort-feasors[,] please see attached.
(Id. at 4, 22.)3
The Complaint’s above-quoted, generalized assertions of wrongdoing do not suffice to state a claim against any named Defendant
under the previously-described standard set by Twombly and Iqbal.4
Nor,
as
the
analysis
that
follows
shows,
do
the
additional
allegations offered by Plaintiff in his attached “list of tortfeasors” set forth adequate factual matter to sustain any of the
purported cause(s) of action as to any named Defendant.
“City of Lexington Police Dept.”/Officers White, Fritz, and English
As to the “City of Lexington Police Dept.” and its three named
officer-Defendants, the attachments to the Complaint allege:
1) “[t]his Department holds the responsibility as to how their
employees should conduct themselves” (Docket Entry 2 at 7);
3
In the docketed version of the Complaint, Plaintiff’s
attached “list of tort-feasors” (as well as other attachments)
appear between the two pages of the form Complaint dedicated to the
“STATEMENT OF CLAIM” (see Docket Entry 6 at 4-22) and thus the
above-quoted language falls on non-consecutive pages.
4
To the extent Plaintiff seeks to remove any state criminal
case(s) to federal court, the allegations of his Complaint do not
support such action. See North Carolina v. Peggs, No. 1:11CR331,
2012 WL 1392353, at *2-3 (M.D.N.C. Apr. 23, 2012) (unpublished)
(discussing limited federal statutory authority for such removals).
6
2) “Lexington Police Dept. has made news over a period of
years about their harsh, cruel and sadistic way in which they
handle their constituents” (id.);
3) “[t]he Dept. was well aware that their officers, Fritz and
White[,]
were
harassing
[Plaintiff]
about
[his]
dogs
on
a
continuous basis starting from 9/11 when the city ordinances about
animals was [sic] passed up to December 2011 . . . [by] writing
false citations and arresting [Plaintiff] at will [and] never
Mirandiz[ing] [Plaintiff] on any of these occasions” (id.);
4) the citations written by Officer White for “violation[s]
like, no water, no food or no shelter . . . [were false because] he
always seem [sic] to show up when [Plaintiff’s] dogs had finish
[sic] feeding[,] . . . [because, Plaintiff] kept [his] dogs in the
house most of the time, but when [Plaintiff] would let them out to
relieve themselves, [Officer White] would ask and state that the
dogs had no shelter – then write an offense for it . . . [and
because] when [Plaintiff’s] dog would get off the chain, it would
be because kids in the neighborhood would throw rocks & bottles at
them
[sic]
when
[Plaintiff]
would
be
on
[sic]
a
doctor’s
appointment or on domestic errands” (id. at 7-8);5
5) “[Officer] White kept up his surveillance and harassment
. . . by sending others [sic] officers, his subordinates, mainly
5
The Complaint further alleges that “[t]here are pictures
. . . showing the excellent health of [Plaintiff’s] dogs” and “[the
bottles and rocks] in [his] yard.” (Docket Entry 2 at 8.)
7
[Officer] Fritz, to nic-pic [sic] about some violation – water
bucket turned over, no food in bowl, dog chain too short [or] too
long – a number of ridiculous things” (id. at 8);
6) “[Officer] White, when informed by other officers that
[Plaintiff’s] Rottweilers had died . . ., broke into [Plaintiff’s]
house, took [Plaintiff’s] other dog . . . and let [sic] a search
warrant giving [Officer White] the right to take [Plaintiff’s
animals . . . because [Officer White] felt [Plaintiff’s] dog was
left to starve” (id. at 9);6
7) “around 1/13/2012,” Officer English arrested Plaintiff at
his home and, when Plaintiff “asked for the privilege of seeing the
warrant, [Officer English] stated that it was down at the police
station” (id. at 9-10);
8) at the police station, Officer English “made the bond
$5,000.00 secured after which [Officer] White can [sic] in trying
to make [Plaintiff] sign papers giving [his] dog to the Police
Department and the Human [sic] Society” (id. at 10); and
9) when Plaintiff “told Officer White that he knows these
actions don’t make any sense, [Officer White] stated ‘If I were
you, I’d leave town’” (id. at 11).
6
The Complaint notes that, with the search warrant, Officer
White “left a long drawn out letter as to him checking with the
utility department, that he’s checked and little utility was being
used, so [Plaintiff] must have abandoned the place.” (Docket Entry
2 at 9.) According to the Complaint, Plaintiff had low utility
usage because he “was leaving early in the morning for job
searches.” (Id.)
8
Officer English
As to Officer English, the Complaint thus alleges only that he
arrested Plaintiff without physical possession of an arrest warrant
and requested a $5,000.00 secured bond for Plaintiff.
Such
allegations, even if accepted as true, fail to state a claim for
any constitutional violation (potentially actionable via 42 U.S.C.
§
1983),
including
the
Fourteenth
Amendment’s
mandates
that
governments (and government officials) provide due process of law
and
possess
a
rational
basis
for
similarly-situated individuals.
differential
treatment
of
See Dawkins v. Richmond Cnty.
Sch., No. 1:12CV414, 2012 WL 1580455, at *4 (M.D.N.C. May 4, 2012)
(unpublished) (outlining standard for Fourteenth Amendment Equal
Protection Clause-based claims as to matters other than race,
national origin, alienage, sex, and illegitimacy);7 North Carolina
v. McKenna, 289 N.C. 668, 678-79, 224 S.E.2d 537, 545 (“The usual
practice, and the better practice in our view, is to serve [a]
defendant promptly with the arrest warrant. . . .
Such service,
however, is not a constitutional requirement of due process.”),
vacated in part on other grounds, 429 U.S. 912 (1976); Moore v.
Evans, 124 N.C. App. 35, 50-51, 476 S.E.2d 415, 426 (1996) (“[I]n
7
Notably, as to any “rational-basis” claim, the Complaint
does not assert (even generally much less with supporting factual
allegations) that Officer English’s failure to serve Plaintiff with
a warrant upon arrest represented differential treatment from that
received by other similarly-situated arrestees or that Officer
English requested a higher bond for Plaintiff than for other
similarly-situated arrestees.
9
the light most favorable to [the plaintiff], the evidence tends to
show that [the defendant-officer] requested the magistrate to set
[the plaintiff’s] bond high . . . .
However, it is the magistrate,
and not [the defendant-officer], who is responsible for setting
[the
plaintiff’s]
bail;
therefore,
this
contention
[that
the
defendant-officer’s request for a high bail violated the United
States Constitution] is without merit.”).
Nor, if credited, would such factual allegations show that
Officer English contravened 42 U.S.C. § 1985.
See Clark v.
Russell, No. 1:11CV526, 2012 WL 601868, at *4 (M.D.N.C. Feb. 23,
2012) (unpublished) (“Section 1985(1) relates to interference in
the performance of a plaintiff’s official duties. . . .
Section
1985(2) addresses acts involving either force, intimidation, or
threat to obstruct justice or obstruction of justice aimed at
undermining equal protection of the law . . . .
Section 1985(3)
requires proof of some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.”
(internal quotation marks omitted)).
The factual matter in the
Complaint regarding Officer English similarly fails to provide a
viable claim that he committed any recognized defamation/emotional
distress-related state tort.
See Hugger v. Rutherford Inst., 63
Fed. Appx. 683, 690 (4th Cir. 2003) (ruling that, under North
Carolina law, emotional distress torts require showing of “severe
emotional distress,” i.e., something “no reasonable man could be
10
expected to endure”);8 Tyson v. L’eggs Prods., Inc., 84 N.C. App.
1, 10-11, 351 S.E.2d 834, 840 (1987) (“In order to recover for
defamation, a plaintiff must allege and prove that the defendant
made false, defamatory statements of or concerning the plaintiff,
which were published to a third person, causing injury to the
plaintiff’s reputation.”); see also McLean v. Patten Communities,
Inc., 332 F.3d 714, 719 (4th Cir. 2003) (stating that “harassment”
does not constitute a “common law tort[] in North Carolina”).
Officers White and Fritz
The contention that Officers White and Fritz wrote citations
Plaintiff considers unjustified (due to various explanations he has
for any cited lack of food, water, shelter, or proper restraint for
his dogs) similarly fails to state a viable constitutionally-based
cause of action.
First, “[t]he Supreme Court has rejected the
proposition
a
that
defendant
possesses
a
liberty
interest
[protected by the Due Process Clause] in avoiding prosecution upon
less than probable cause.
And, the Fourth Amendment provides all
of the pretrial process that is constitutionally due to a criminal
defendant . . . .”
Brooks v. City of Winston-Salem, N.C., 85 F.3d
178, 184 (4th Cir. 1996) (internal citation omitted).
8
The Complaint does not allege any emotional distress caused
by Officer English (see Docket Entry 2 at 10-11) and, more
generally, only identifies alleged harm to Plaintiff’s mental
health from all events in the Complaint in a conclusory fashion
that falls far short of satisfying the severity element of an
emotional distress claim under North Carolina law (see id. at 25).
11
In addition, the Complaint fails to allege factual matter
showing that the citations at issue “w[ere] not supported by
probable cause and that the criminal proceedings terminated in
[Plaintiff’s] favor [so as] sufficient[ly] to state a § 1983
malicious prosecution claim alleging a seizure that was violative
of the Fourth Amendment.”
Id. at 183-84; see also Sennett v.
United States, 667 F.3d 531, 536 (4th Cir. 2012) (“The test [for
probable cause] is not whether the conduct under question is
consistent with innocent behavior; law enforcement officers do not
have to rule out the possibility of innocent behavior.” (internal
quotation marks omitted)).9
Nor does the Complaint assert that
Officers White and Fritz declined to write citations for others
similarly-situated to Plaintiff, as required to state a claim under
the Equal Protection Clause.
See Dawkins, 2012 WL 1580455, at *4.
9
The Complaint also lacks any allegation that Officers White
and Fritz ever questioned Plaintiff upon arrest (much less that he
gave answers later used against him in a criminal case), such that
any lack of Miranda warnings affords no basis for a constitutional
claim. See Reaves v. Richardson, C/A No. 4:09-820-TLW-SVH, 2011 WL
2119318, at *3 (D.S.C. Mar. 1, 2011) (unpublished) (“Plaintiff’s
allegations fail to set forth a claim because: (1) Plaintiff made
no self-incriminating statements which were used against him in a
criminal case; and (2) the mere alleged violation of Miranda cannot
support a § 1983 claim.” (citing Chavez v. Martinez, 538 U.S. 760,
770 (2003) (plurality), and Burrell v. Virginia, 395 F.3d 508, 51314 (4th Cir. 2005))), recommendation adopted, 2011 WL 2112100
(D.S.C. May 27, 2011) (unpublished); Ervin v. Hammond, No.
3:05CV59-MKR-DCK, 2007 WL 5060411, at *11 (W.D.N.C. Dec. 12, 2007)
(unpublished) (“[P]olice officers’ questioning of a plaintiff in
custody without providing Miranda warnings will provide a basis for
a § 1983 claim, if at all, only where the plaintiff’s statements
were used against him in the criminal proceeding.” (citing Chavez
and Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003))).
12
So
too,
Plaintiff’s
attempt
to
convert
Officer
White’s
execution of a search warrant into a constitutional tort falls
short as a matter of law, given that the Complaint alleges neither
that the warrant application lacked probable cause and/or contained
intentional/reckless falsehoods nor that Officer White engaged in
differential treatment of similarly-situated individuals.
See
Malley v. Briggs, 475 U.S. 335, 343-45 & n.6 (1986) (making clear
that Fourth Amendment standards apply to Section 1983 claims as to
search warrants); Franks v. Delaware, 438 U.S. 154, 165 (1978)
(“[Pursuant to the Fourth Amendment, a] warrant affidavit must set
forth particular facts and circumstances underlying the existence
of probable cause . . . .
Because it is the magistrate who must
determine independently whether there is probable cause, it would
be an unthinkable imposition upon his authority if a warrant
affidavit, revealed after the fact to contain a deliberately or
reckless
false
statement,
were
to
stand
beyond
impeachment.”
(internal citations omitted));10 Dawkins, 2012 WL 1580455, at *4.
Further, Officer White’s alleged effort to “make” Plaintiff
“sign over” his dog and Officer White’s supposed suggestion that
Plaintiff consider “leav[ing] town” create no constitutionallybased cause of action.
As to the former, the Complaint does not
10
At most, the Complaint offers alternative explanations for
some evidence apparently submitted in the warrant application.
Such attempted parrying of an officer’s showing does not establish
a lack of probable cause. See Sennett, 667 F.3d at 536.
13
describe what Officer White did (such that it lacks sufficient
“factual matter” to state a claim under Iqbal and Twombly)11 and,
as to the latter, Officer White’s reported remarks would violate
standards of professionalism, but not the Constitution, see, e.g.,
Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (“As a rule,
mere threatening language and gestures of a custodial officer do
not, even if true, amount to a constitutional violation.” (internal
brackets
and
quotation
Defuniak
Springs,
891
marks
F.
omitted));
Supp.
1548,
Crenshaw
1555
v.
(N.D.
City
Fla.
of
1995)
(“[C]itizens do not have a constitutional right to courteous
treatment by the police. . . . [V]erbal harassment and abusive
language, while unprofessional and inexcusable, are simply not
sufficient to state a constitutional claim under Section 1983.”
(internal quotation marks omitted)); Jermosen v. Coughlin, 878 F.
Supp.
444,
449
(N.D.N.Y.
1995)
(“Although
indefensible
and
unprofessional, verbal threats or abuse are not sufficient to state
a constitutional violation cognizable under § 1983.”).
11
To the extent the Complaint elsewhere implies that Officer
White made a “threat about keeping [Plaintiff] indefinitely if [he]
didn’t sign [his] dog over” (Docket Entry 2 at 15 (setting out
comments Plaintiff allegedly made to state judge in section of
Complaint addressing purported liability of “City of Lexington’s
Sheriff Department”)), the Court declines to construe the Complaint
as asserting such an allegation against Officer White in light of
the above-quoted, conflicting allegations in the portion of the
Complaint specifically targeted at the “City of Lexington Police
Dept.” and Officers White, Fritz, and English that: (1) Officer
English submitted a bond recommendation; and (2) Officer White
indicated Plaintiff should leave town.
14
Further, the Complaint lacks the requisite allegations of
interference
in
Plaintiff’s
performance
of
official
duties,
obstruction of justice aimed at frustration of equal protection
rights, or racial or other class-based discrimination needed to
sustain a Section 1985 claim against Officers White and Fritz. See
Clark, 2012 WL 601868, at *4. Finally, the recognizable state tort
claims identified in the Complaint do not lie against Officers
White and Fritz given the absence of any factual allegation showing
that they made false defamatory statements about Plaintiff or
otherwise intentionally or negligently caused Plaintiff severe
emotional distress.
See Hugger, 63 Fed. Appx. at 690; Tyson, 84
N.C. App. at 10-11, 351 S.E.2d at 840.
“City of Lexington Police Dept.”
Given that the Complaint fails to state a cognizable claim
against Officers White, Fritz, and English, Plaintiff has no claim
against the “City of Lexington Police Dept.” (or, for that matter,
the City of Lexington)12 based on the notion that “[t]his Department
holds the responsibility as to how their employees should conduct
themselves” (Docket Entry 2 at 7). Moreover, Section 1983 does not
permit such respondeat superior liability, see Love–Lane v. Martin,
12
It appears that, as a mere component of a municipality, a
municipal police department lacks the capacity to sue or be sued.
See Fields v. Tucker, No. 1:10CV844, 2011 WL 4345306, at *1 n.1
(M.D.N.C. Sept. 15, 2011) (unpublished), recommendation adopted in
relevant part, 2012 WL 174820, at *1-2 (M.D.N.C. Jan. 20, 2012)
(unpublished).
15
355 F.3d 766, 783 (4th Cir. 2004) (citing Monell v. Department of
Soc. Servs., 436 U.S. 658, 691 (1978)), and, in fact, a plaintiff
must offer more than conclusory allegations of prior unspecified
misconduct by municipal officials to show the existence of a policy
or custom, as well as the proximate causation therefrom, required
to state a Section 1983 claim against a municipality, see Revene v.
Charles Cnty. Comm’rs, 882 F.2d 870, 875 (4th Cir. 1989).
“Calicutt Realty, Inc.”
According to the attached pages of the Complaint, “Calicutt
Realty, Inc.” (a business operated by Bob Calicutt from which
Plaintiff rented a house) “is primarily responsible and is a
primary component for orchestrating the harassment and vicious
attacks
[on
Lexington.”
Plaintiff]
by
the
law
enforcement
(Docket Entry 2 at 18.)
agencies
in
More specifically, the
Complaint asserts that, due to Plaintiff’s complaints about the
condition
of
his
rental
property,
“when
Calicutt
would
see
[Plaintiff] leave the premises, he would call the officials to
conjure up some bogus infractions.”
(Id. at 18-19.)
Because (for
reasons discussed in the preceding subsections) the Complaint lacks
sufficient factual allegations to support any cause of action
against the “City of Lexington Police Dept.” and Officers White,
Fritz, and English, any attempt to proceed against “Calicutt
Realty, Inc.” (or, for that matter, Bob Calicutt) based on some
theory of joint liability similarly must fail.
16
“Davidson County Magistrate Office”
Within its attachments, the Complaint alleges that Plaintiff
“[is] totally appalled at the way that the Office of Magistrate
operates in Davidson County.”
(Docket Entry 2 at 20.)
More
specifically, the Complaint offers these factual assertions:
1) when Plaintiff came “before these magistrates, the police
d[id] all the talking, [he was] in handcuffs [and] the police ha[d]
the summons typed up from upstairs by a form that ha[d] the
magistrate [sic] name already type [sic] in” (id.);
2) often the name of the magistrate on the summons differed
from the actual magistrate before whom Plaintiff appeared (id.);
3) in some instances, “magistrates . . . never inquired of
[Plaintiff whether he] underst[oo]d the allegation” (id.);
4) magistrates “automatically take the word of these [police]
officers, totally ignoring [Plaintiff’s] presence” (id.); and
5) Plaintiff “never had an opportunity to understand or refute
any
allegations
.
.
.
[but
instead
was]
[j]ust
released
if
unsecured bond [wa]s granted, or jailed if [a] secured [bond was
ordered] and [Plaintiff was] unable to make bond” (id. at 21).
Plaintiff cannot pursue in this action any claim against the
“Davidson County Magistrate Office” based on these allegations.
First, it does not appear that the “Davidson County Magistrate
Office” constitutes a proper party to a federal lawsuit.
See Mack
v. Fox, No. 1:07CV760, 2008 WL 4832995, at *6 n.4 (M.D.N.C. Nov. 4,
17
2008) (unpublished) (stating that “the ‘Orange County Magistrate’s
Office’ does not appear to be an entity capable of being sued under
North Carolina law” and citing Fed. R. Civ. P. 17(b) and Avery v.
Burke, 660 F.2d 111, 113-14 (4th Cir. 1981), for proposition that
state
law
determines
an
entity’s
amenability
to
federal
litigation), recommendation adopted, 2008 WL 7674789 (M.D.N.C. Dec.
10, 2008), aff’d, 326 Fed. Appx. 251 (4th Cir. 2009).
Second, any
such claim does not share common questions of law or fact with the
above-discussed claims against the “City of Lexington Police Dept.”
and Officers White, Fritz, and English.
See Fed. R. Civ. P.
20(a)(2)(B) (requiring common issues of law or fact for joinder of
defendants), 21 (authorizing courts to sua sponte “drop a party” to
address misjoinder).
Third, “magistrates are entitled to absolute
immunity for acts performed in their judicial capacity.”
Pressly
v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987); accord Mack, 2008 WL
4832995, at *5 n.2 (“Judicial immunity includes immunity from
damages as well as prospective injunctive relief.”).
“City of Lexington Sheriff Dept.”
The Complaint, in its attached pages, alleges that, following
Plaintiff’s arrest in January 2012, “[t]he Sheriff Department
conjured up fictitious lies about [Plaintiff] being wanted in 5 or
6 states which delayed [his] bondsman from posting bail.”
Entry 2 at 14.)
(Docket
It elaborates, in relevant part, only as follows:
[Plaintiff’s bondsman] was going to post [Plaintiff’s]
bail on Friday [i.e., the day after his arrest], but was
18
told by the Sheriff Department that there was a hold on
[Plaintiff] by 5 or 6 states, so [Plaintiff] had to wait
over the weekend to go before the judge . . . . The next
January
2012,
Tuesday,
day
which
was
the
16th
[Plaintiff’s] lawyer, Carroll C. Walls came to see
[Plaintiff] with the same papers [regarding surrender of
his dog] that [Plaintiff] refused to sign for [Officer]
White. That same day [Plaintiff’s] bond was reduced from
$5,000.00 secured, to $1000.00. [Plaintiff] was finally
released on January 21, 2012, Saturday.
(Id. at 14-15.)
According to the Complaint, “[t]hat’s 7 days that
[Plaintiff] was kidnapped by the Sheriff Department.” (Id. at 15.)
The Court thus construes this portion of the Complaint as asserting
a Section 1983 claim for unconstitutional seizure.
In assessing this claim, the Court initially notes that it
does not appear an entity called the “City of Lexington Sheriff
Dept.”
exists.
“[I]n
North
Carolina,
counties
constitute separate political subdivisions . . . .”
and
cities
Hall El v.
Craven, No. 1:12CV246, 2012 WL 1067627, at *6 n.6 (M.D.N.C. Mar.
30,
2012)
(unpublished)
(internal
parentheticals
omitted).
Moreover, North Carolina law provides that “[i]n each county a
sheriff shall be elected by the qualified voters thereof . . . and
shall hold his office for four years.”
(emphasis added).
N.C. Gen. Stat. § 162-1
By statute, “[t]he sheriff shall have the care
and custody of the jail in his county; and shall be, or appoint,
the keeper thereof.”
N.C. Gen. Stat. § 162-22 (emphasis added).
Because “the City of Lexington [is] the county seat of
Davidson County,” Lambeth v. Board of Comm’rs of Davidson Cnty.,
N.C., 407 F.3d 266, 267 (4th Cir. 2005), it seems likely that the
19
Complaint actually seeks to lodge the instant claim against the
governmental entity that operates the jail facility in Davidson
County.
Under North Carolina law (as noted), the Sheriff of
Davidson
County
Davidson County.
has
responsibility
for
the
jail
facility
in
However, “[s]ome uncertainty exists as to the
proper nomenclature for the local governmental entity associated
with North Carolina sheriffs and their personnel and as to the
capacity of any such entity to be sued.”
McNeil v. Guilford Cnty.
Sheriff Dep’t, No. 1:09CV999, 2010 WL 377000, at *3 n.3 (M.D.N.C.
Jan.
25,
2010)
(unpublished)
(citing
cases
taking
apparently
conflicting positions as to whether various “sheriff”-related
entities constitute proper parties).
To the extent Plaintiff purports to sue the “City of Lexington
Sheriff Dept.” under Section 1983 for unconstitutional seizure for
actions that delayed his release on bond, “[b]ecause Plaintiff has
failed to allege that any entity or policy-maker [affiliated with
the Sheriff of Davidson County] maintained any policy or custom
that caused Plaintiff’s claimed injury, the Court need not attempt
to conclusively determine the identity and/or capacity to be sued
of the entity that Plaintiff expressly or by implication has named
or that he might have named instead.”
Id.; see also Walker v.
Prince George’s Cnty., Md., 575 F.3d 426, 431 (4th Cir. 2009)
(affirming dismissal of Section 1983 claim against local government
where plaintiffs failed to identify “policy, or custom that caused
20
their injury” (internal brackets and quotation marks omitted));
Love-Lane, 355 F.3d at 782 (“To hold a [local government] liable
for a single decision (or violation), the decisionmaker must
possess ‘final authority to establish [governmental] policy with
respect to the action ordered.’” (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 481 (1986))).13
“Carrol C. Wall, Attorney”
The allegations within the attachments to the Complaint about
Attorney Wall (whom said attachments label as Plaintiff’s “state
appointed attorney”) consist of the following:
1) “when [Plaintiff] made bail and made [his] court date on
January 31, 2011, [Attorney Wall] told the judge that [Attorney
Wall] wanted off [Plaintiff’s] case . . . [because Attorney Wall]
doesn’t handle felony cases” (Docket Entry 2 at 16);14
2)
“[o]bviously [Attorney Wall] knew that the D.A.’s Office
was prosecuting [Plaintiff] for the death of [his] dogs without
proof” (id.);
13
In addition, the Court should not allow any such Section
1983 claim (as well as any other claim Plaintiff may seek to assert
against the “City of Lexington Sheriff Dept.” based on the
circumstances surrounding the delay in his release on bond) to go
forward in this action because of the absence of any common issues
of law and fact shared by such a claim and the claims against the
“City of Lexington Police Dept.” and Officers White, Fritz, and
English. See Fed. R. Civ. P. 20(a)(2)(B), 21.
14
Given other allegations in the Complaint as to the dates of
the relevant events (see Docket Entry 2 at 8-10, 14, 15, 18), it
appears that the above-referenced court appearance on “January 31,
2011,” actually would have occurred in 2012.
21
3) Plaintiff “requested a speedy trial of [Attorney Wall] and
the new appointed attorney” (id.); and
4) Plaintiff is “ready” for trial, but “[his] attorneys [are]
waiting for the prosecution to prepare” (id.).
Based
on
these
assertions,
the
Complaint
concludes
that
Attorney Wall “hindered [Plaintiff’s] right to due process” (id.).
Given that the allegations in the Complaint reflect that the state
court released Attorney Wall from Plaintiff’s state criminal case
shortly after it began, it does not appear that Plaintiff has any
basis to blame Attorney Wall for any delay in the trial of said
case.
Regardless of that fact, Plaintiff cannot pursue any due
process-based claim against Attorney Wall because he does not
qualify as a state actor (notwithstanding any court appointment).
See Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980).
Various Media Entities
In its attached pages, the Complaint alleges that the “News
Dispatch of Lexington” printed “[s]landering and defaming articles
[that] were written by Darrick Ignasiak on January 15 & 26[,] 2012
. . . .”
(Docket Entry 2 at 13.)
The Complaint, however, does not
identify in any way any factual matter showing any allegedly false
and defamatory statements in the referenced articles.
13-14.)
(See id. at
As such, the Complaint fails to state a defamation claim
under North Carolina law, see Tyson, 84 N.C. App. at 10-11, 351
S.E.2d at 840, as judged by the Twombly and Iqbal standard, see
22
Mayfield v. National Ass’n for Stock Car Auto Racing, Inc., 674
F.3d 369, 377-78 (4th Cir. 2012) (ruling that defamation claim
could not survive motion to dismiss where complaint contained only
“conclusory allegation — a mere recitation of the legal standard”);
Councell v. Homer Laughlin China Co., 823 F. Supp. 2d 370, 383
(N.D.W. Va. 2011) (“[T]he plaintiffs allege nothing more than broad
legal conclusions that ‘inaccuracies’ existed in [the] personnel
file and ‘scandalous’ and ‘defamatory’ statements were made. . . .
These conclusions are insufficient to support [a defamation claim]
under the Twombly and Iqbal standards . . . .”); Smith v. McGraw,
No. 10CV2310AW, 2011 WL 1599579, at *8 (D. Md. Apr. 27, 2011)
(unpublished) (“In order for the Court to determine whether a
statement is defamatory, it is essential for the plaintiff to
describe the actual statements or conduct that give rise to the
claims.
In reviewing a motion to dismiss, the Court must defer to
the well-pleaded facts in the Complaint, but not to the legal
conclusions or unsupported factual inferences Plaintiff attempts to
draw.
Thus, a defamation complaint must contain more than the
plaintiff’s
personal
conclusion
that
she
was
the
victim
of
defamatory statements.” (internal citation omitted)); Skilstorm,
Inc. v. Electronic Data Sys., LLC, 666 F. Supp. 2d 610, 619-20
(E.D. Va. 2009) (“[The plaintiff’s] pleading of its defamation
claim is exactly the type of pleading that Iqbal and Twombly sought
to foreclose. Here, [the plaintiff] alleges that it was defamed by
23
[the defendant], but [the plaintiff] makes no direct allegations
nor pleads any facts that allow the Court to plausibly infer that
[the plaintiff] was, in fact, defamed.”).
Similarly, although the
attached pages of the Complaint assert that numerous other media
entities “printed slanderous and defamatory information without
facts,” “aired news releases that were slanderous and detrimental
to [Plaintiff’s] character,” and “aired and released erroneous
information
that
was
and
is
slanderous
and
detrimental
to
[Plaintiff’s] character & psyche” (Docket Entry 2 at 14, 17, 18),
those claims also fall short under Twombly and Iqbal (in light of
the above-cited authority), because the Complaint fails even to
describe in a general sense any allegedly false and defamatory
statements disseminated by such media outlets (see id.).
“City of Lexington Sanitation Dept.” and “Jeff Everhart”
The attachments to the Complaint offer these allegations about
the “City of Lexington Sanitation Dept.” and “Jeff Everhart”:
1) “[Plaintiff] worked for this Depart. about 3½ years on a
temporary basis . . . [e]very year around October [when] leaf
season begans [sic]” (id. at 11);
2) Plaintiff did “an exceptional job [and] [his] attendance
record was impeccable” (id.);
3) “around Oct 13 or 14 of 2011, [Plaintiff] saw members of
the Trash Department, . . . asked them when would leaf season began
[sic], [and] they told [Plaintiff] soon” (id. at 11-12);
24
4) “[Plaintiff] then asked [a member of the Trash Department]
to call Jeff Everhart, the supervisor that [Plaintiff] had worked
for because [Plaintiff] didn’t have his number” (id. at 12);
5)
the
Trash
Department
member
“dialed
the
number
and
[Plaintiff] spoke with [Everhart] . . . [who said] he remember[ed]
[Plaintiff]” (id.);
6)
“[Plaintiff]
told
[Everhart]
that
[Plaintiff]
was
interested in working the leaf season . . . [and Everhart] said go
back to . . . the [temporary employment] agency that his department
was registered with . . . and get re-registered, get [a] background check done and that he would hire [Plaintiff]” (id.);
7) after Plaintiff “did that [and] pass[ed] the back-ground
check, [he] called [Everhart] to let him know . . . [and Everhart]
said he would let [Plaintiff] know when to start” (id.);
8) “[s]everal days later . . . [Plaintiff] called [Everhart]
again, only to be told that they were not ready yet” (id.);
9) “[a] week later . . . [Plaintiff] called [Everhart] again
and he told [Plaintiff] all positions had been filled” (id.); and
10)
“[Plaintiff]
felt
betrayed
and
disheartened
because
reality finally set in, [Plaintiff] knew as a general practice,
that Department hired no more than 2 minority [sic] regardless of
national origin . . . [and was] convinced that that quote [sic] had
been filled” (id.).
25
Accordingly, it appears that Plaintiff seeks to assert a claim
of
race-based
Lexington
employment
Sanitation
discrimination
Dept.”
and
a
against
supervisor
the
“City
within
of
said
Department.
That claim cannot proceed in this action for a number
of reasons.
First, given that a municipal sanitation department
constitutes only a component of a municipality, such a department
likely would not qualify as a proper party.
See Fields v. Tucker,
No. 1:10CV844, 2011 WL 4345306, at *1 n.1 (M.D.N.C. Sept. 15, 2011)
(unpublished), recommendation adopted in relevant part, 2012 WL
174820, at *1-2 (M.D.N.C. Jan. 20, 2012) (unpublished); see also
Mack, 2008 WL 4832995, at *6 n.4.
Second, the instant employment-
related, racial discrimination claim fails to present questions of
law or fact common to any of the previously-discussed claims.
See
Fed. R. Civ. P. 20(a)(2)(B) (requiring common issues of law or fact
for joinder of defendants), 21 (authorizing courts to sua sponte
“drop a party” to address misjoinder).
Third, the Complaint lacks
any factual allegations that would support an inference that race
played any part in Everhart’s actions and, instead, relies only on
a bald assertion that the “City of Lexington Sanitation Dept.”
utilizes a racial quota system; as a result, this claim does not
pass muster under the Twombly and Iqbal pleading standard.
CONCLUSION
The Complaint in this case fails to state a viable cause of
action against any named Defendant, includes as Defendants entities
26
not amenable to suit in federal court, purports to join Defendants
despite the absence of required common issues of law or fact, and
(in
at
least
one
instance)
established immunity doctrine.
pursues
a
claim
precluded
by
an
Indeed, the Complaint so lacks an
arguable basis in law and fact as to qualify as frivolous.
IT IS THEREFORE ORDERED that Plaintiff’s instant 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 this action be DISMISSED WITHOUT
PREJUDICE under 28 U.S.C. § 1915(e)(2), as frivolous, for failing
to state a claim, and due to the immunity of a Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 17, 2012
27
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