FULLER v. STATE OF NORTH CAROLINA et al

Filing 5

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/29/2013 as set out herein. ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR 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) because it is frivolous, because it fails to state a claim on which relief may be granted, and because it seeks monetary damages from Defendants with immunity from such relief.(Taylor, Abby)

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

MELISSA FULLER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
STATE OF NORTH CAROLINA,
et al.,
Defendants.

1:12CV1198

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 Amended Complaint (Docket Entry
4).

The Court will grant Plaintiff’s request to proceed as a

pauper for the limited purpose of recommending dismissal of this
action

pursuant

to

28

U.S.C.

§

1915(e)(2)(B)

because

it

is

frivolous, because it fails to state a claim on which relief may be
granted, and because it seeks monetary damages from Defendants 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
1

Plaintiff’s pauper application lists monthly income totaling
$3,000 and monthly expenses totaling $2,335, suggesting she likely
could afford to pay the filing fee. (See Docket Entry 1 at 1-3.)
However, in light of the recommendation of dismissal, no need
exists to address this matter further.

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.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

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

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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.”

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

quotation marks omitted). The Supreme Court further has identified
factually frivolous complaints as ones involving “allegations that
are fanciful, fantastic, and delusional.

As those words suggest,

a finding of factual frivolousness is appropriate when the facts
alleged

rise

to

the

level

of

the

irrational

or

the

wholly

incredible, whether or not there are judicially noticeable facts
available to contradict them.”

Denton v. Hernandez, 504 U.S. 25,

32-33 (1992) (internal citations and 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-defendant-

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unlawfully-harmed-me accusation.”

Id.

In other words, “the tenet

that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.

Threadbare

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

Id.2

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 monetary
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

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
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)).
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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
Plaintiff’s Amended Complaint names six Defendants: the State
of North Carolina, the North Carolina Office of State Personnel,
the State Highway Patrol, State Trooper A C Ward No. 2654, the
Guilford County District Court, and the Guilford County District
Attorney.

(Docket Entry 4 at 1.)3

3

The Amended Complaint describes

Plaintiff additionally names as Defendants “Guilford County
District Court Citation # F979004” and “John Does 1-100.” (Docket
Entry 4 at 1.)
A traffic citation does not represent a proper
Defendant.
Cf. Sierra Club v. Morton, 405 U.S. 727, 742 & n.2
(1972) (Douglas, J., dissenting) (discussing limited circumstances
in which “[i]nanimate objects are sometimes parties in litigation,”
such as some actions in rem). Unlike an action in rem, the traffic
citation here does not reflect disputed property which Plaintiff
hopes to obtain.
Nor could one reasonably consider a traffic
citation as a “person” for purposes of an action brought pursuant
to 42 U.S.C. § 1983.
The Amended Complaint further lacks
identifying details for or allegations against any John Doe
Defendants. (Docket Entry 4 at 1-12.) “John Doe suits are not
favored in federal courts.” Sullivan v. Cannady, No. 7:12CV69D,
2012 WL 4829616, at *1 n.1 (E.D.N.C. Oct. 10, 2012) (unpublished).
In accordance with this principle, the courts should allow John Doe
suits to proceed only against “real, but unidentified, defendants.”
Schiff v. Kennedy, 691 F. 2d 196, 197 (4th Cir. 1982). “Thus, if
it does not appear that the true identity of an unnamed party can
be discovered through discovery or through intervention by the
court, the court could dismiss the action without prejudice.” Id.
at 198 (footnote omitted). The Amended Complaint neither includes
facts to support an inference that the 100 John Does named
represent real, identifiable Defendants (Docket Entry 4 at 1-12),
(continued...)
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this action as a suit “for damages brought for violations of 18 USC
241, CONSPIRACY

AGAINST

THE

RIGHTS

OF

CITIZENS,

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW[.]”

18

USC 242,

(Id. at 2.)

It

further alleges that Plaintiff suffered deprivations of various
federal constitutional rights during a traffic stop by a state
trooper.

(Id. at 3-11.)

To support these claims, the Amended

Complaint offers the following factual allegations:
1) Trooper Ward pulled Plaintiff over and without identifying
himself, “got out of the vehicle and demanded to see papers that he
thought [Plaintiff] might have in [her] possession, such as a
driver’s license,

vehicle

registration,

and

etc.

. .

.

[and

Plaintiff] asked [Trooper Ward] . . . for his picture ID such as a
driver’s license, and etc.”

(Id. at 3.);

2) “[Trooper Ward] became enraged . . . [,] refused to show
[Plaintiff] a picture ID or in fact any ID[,] [and] [h]e threatened
to put [Plaintiff] in jail.”

(Id. at 4.);

3) “[Plaintiff] asked [Trooper Ward] if [she] was under
arrest, and he said, ‘No.’

[Plaintiff] asked him if [she] was not

under arrest why would he put [her] in jail.

This only enraged him

further and he accused [Plaintiff] of being a ‘smart ass’ and other
such objectionable labels.”

(Id.);

3

(...continued)
nor appears to contemplate any recovery from these Defendants, as
Plaintiff’s formula for damages omits them (id. at 11). For these
reasons, Plaintiff’s claims against the District Court Citation and
the John Doe Defendants should be dismissed.
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4) “[Trooper Ward] appeared to be carrying a firearm . . . and
since he was becoming very angry [Plaintiff] supplied him with the
papers he demanded under fear and threat of duress and/or personal
injury.”
5)

(Id.);
“[Trooper

Ward]

breaking some laws.

periodically

accused

[Plaintiff]

of

[Plaintiff] told him if [she] had broken any

laws that he had recourse.”

(Id.);

6) “[Trooper Ward] went back to [his] vehicle, and shortly
returned to [Plaintiff’s] vehicle . . . .

He showed [Plaintiff] a

print out from his vehicle that appeared to be full of some sort of
vouchers.”

(Id.);

7) “Without explaining the conditions of the contract and
without

making

any

attempt

at

full

disclosure,

[Plaintiff] to put [her] signature on a presentment.

he

wanted

[Plaintiff]

asked him if it was mandatory or voluntary that [she] sign the
presentment.

He said it was voluntary.

[she] would not sign the presentment.”

[Plaintiff] informed him
(Id.); and

8) “[Trooper Ward] assured [Plaintiff] that [she] must pay
money to the court (?) for the ‘charges’ on the paper that he
presented.

That [Plaintiff] could be held liable for a contract

that [she] had not been a party to confused [her].

It appears that

[Trooper Ward] is under the false presumption that [Plaintiff]
became the liable party.
injured.”

That is fraud.

(Id. at 5.)

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[Plaintiff] has been

Based on the foregoing allegations, the Amended Complaint
“demands judgment for statutory damages[,] fees, and costs against
each and every Defendant.”

(Id. at 11 (emphasis in original).)

Specifically, it seeks damages totaling $12,180,000, calculated
according to the formula “one-hundred seventy-four (174) listed
Constitutional and Bill of Rights violations valued at $10,000 per
violation times seven (7) Debtors.”

(Id.)

The Court should dismiss this action.

As an initial matter,

Plaintiff’s Complaint brings her claim under a pair of criminal
statutes, 18 U.S.C. §§ 241 and 242, which do not create a private
cause of action.

Bey v. State of N.C., No. 3:12CV454, 2012 WL

3528005, at *1 (W.D.N.C. Aug. 14, 2012) (unpublished); Shahin v.
Darling, 606 F. Supp. 2d 525, 538 (D. Del. 2009).

As a general

matter,

for

Plaintiff

may

assert

a

damages

action

constitutional violations under 42 U.S.C. § 1983.

federal

Randall v.

Prince George’s Cnty., Md., 302 F.3d 188, 202 (4th Cir. 2002).
However, in the instant case, Plaintiff has not alleged facts
sufficient

to

support

an

inference

that

she

suffered

any

deprivation of her federal constitutional rights.
Plaintiff’s Amended Complaint appears to describe a routine
traffic stop, which resulted in Trooper Ward giving her a traffic
citation.

(Docket

Entry

4

at

3-5.)

Routine

traffic

stops

authorized by state law and based on an officer’s reasonable
suspicion of a traffic violation do not violate the United States

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Constitution.

See Hiibel v. Sixth Judicial Dist. Court, 542 U.S.

177, 184-86 (2004).

Although the Amended Complaint does not

disclose Trooper Ward’s basis for stopping Plaintiff or the nature
of the traffic citation given, it also does not allege the absence
of reasonable suspicion for the stop.

(Docket Entry 4 at 3-11.)4

Nor does the factual matter set forth in the Amended Complaint, if
accepted as true, establish any of the 174 alleged constitutional
violations listed in the Amended Complaint.
Amended

Complaint

asserts

that

Trooper

For instance, the
Ward’s

request

Plaintiff’s driver’s license violated the Fourth Amendment.
Docket Entry 4 at 6.)

for
(See

However, a police officer’s request for

identification in the context of a traffic stop does not violate
the Fourth Amendment.

See Hiibel, 542 U.S. at 186-88 (“Our

decisions make clear that questions concerning a suspect’s identity
are a routine and accepted part of many Terry stops.”).
The other asserted constitutional violations in the Amended
Complaint similarly lack a reasonable relationship to Plaintiff’s

4

In addition, the Amended Complaint does not allege that the
traffic stop violated state law. (See Docket Entry 4 at 1-12.)
See also N.C. Gen. Stat. § 20-183(a) (“It shall be the duty of the
law-enforcement officers of the State and of each county, city, or
other municipality to see that the provisions of this Article are
enforced within their respective jurisdictions, and any such
officer shall have the power to arrest on sight or upon warrant any
person found violating the provisions of this Article.
Such
officers within their respective jurisdictions shall have the power
to stop any motor vehicle upon the highways of the State for the
purpose of determining whether the same is being operated in
violation of any of the provisions of this Article.”).
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alleged facts. For example, the Amended Complaint identifies seven
unique violations of the Thirteenth Amendment - abolishing slavery
and involuntary servitude - in the course of her traffic stop. (See
Docket Entry 4 at 6-11.)

The suggestion that Trooper Ward’s

requests for Plaintiff to remain in her car and provide her
driver’s license (see id. at 6-7) amount to slavery or involuntary
servitude qualifies as frivolous.

See Herndon v. Chapel Hill-

Carrboro City Bd. of Educ., 89 F.3d 174, 180-81 & n.3 (4th Cir.
1996) (holding that Thirteenth Amendment prohibits only compulsory
labor “akin to African slavery”). Similarly, the Amended Complaint
six times cites to Article I, § 10’s prohibition of bills of
attainder and ex-post-facto laws for the proposition that “no state
shall allow any person or group to make a law, judge on it, and
punish under it.”

(Docket Entry 4 at 6-11.)

The Amended Complaint

does not specify whether Plaintiff finds a particular state law such as N.C. Gen. Stat. § 20-183(a), authorizing traffic stops invalid, all state laws invalid, or alleges that someone else
besides the state legislature enacted the challenged state law(s).
(See Docket Entry 4 at 1-12.)

Regardless, the Amended Complaint

offers no factual matter that calls into question the validity of
any state law authorizing the subject traffic stop.

(See id. at 3-

5.)
In addition, Plaintiff’s Amended Complaint reflects other
material pleading defects.

First, the Amended Complaint contains

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no dates or locations (see id. at 1-12), which Federal Rule of
Civil

Procedure

9(f)

considers

sufficiency of a pleading.”

“material

when

testing

the

Further, it contains no factual

allegations against either the Guilford County District Court or
the Guilford County District Attorney.

(See Docket Entry 4 at 1-

12.) In sum, Plaintiff’s Amended Complaint fails to state a claim,
often to the point of frivolousness.
As to this latter point, Plaintiff’s Amended Complaint falsely
feigns confusion as to the identity and authority of the state
trooper and the fact of the traffic stop itself.

For instance, the

Amended Complaint alleges that Plaintiff had no awareness of
Trooper Ward’s identity as a law enforcement officer (see id. at 35), yet it clearly identifies Trooper Ward by his position and
badge number in the caption (id. at 1).

Similarly, the Amended

Complaint alleges Plaintiff’s bewilderment when Trooper Ward handed
her a “presentment” (id. at 4-5), but Plaintiff names the same
document as a party to this suit, referring to it as a “District
Court Citation” (id. at 1).

These circumstances warrant dismissal

of the Amended Complaint as frivolous.
Moreover, sovereign immunity bars any § 1983 claim against at
least four of the named Defendants.

“Section 1983 provides a

federal forum to remedy many deprivations of civil liberties, but
it does not provide a federal forum for litigants who seek a remedy
against a State for alleged deprivations of civil liberties.

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The

Eleventh Amendment bars such suits . . . .”
of State Police, 491 U.S. 58, 66 (1989).

Will v. Michigan Dep’t

States and state agencies

thus do not constitute “persons” subject to suit under § 1983, id.
at

67-71,

and,

for

this

reason,

the

Court

should

dismiss

Plaintiff’s claims against the State of North Carolina, the North
Carolina Office of State Personnel, and the State Highway Patrol.
In addition, because the North Carolina district courts operate as
part of the state’s unified court system, see N.C. Gen. Stat. § 7A4, the Guilford County District Court also constitutes a state
agency entitled to dismissal.

Along similar lines, to the extent

that Plaintiff’s Amended Complaint asserts claims for damages
against Trooper Ward and the Guilford County District Attorney in
their official capacities, the Court should dismiss such claims
because any judgment against them would impose liability on the
state, which the Eleventh Amendment would bar.

See Will, 491 U.S.

at 70-71; see also Brandon v. Holt, 469 U.S. 464, 471-72 (1985)
(making clear that “a judgment against a public servant ‘in his
official

capacity’

imposes

liability

on

the

entity

that

he

represents”).
As a final matter, in the absence of allegations that the
state criminal

proceedings

resulting

from

Plaintiff’s

traffic

citation terminated in her favor (see Docket Entry 4 at 1-12), Heck
would bar Plaintiff’s claims because they would call a criminal
conviction into question. See Heck v. Humphrey, 512 U.S. 477, 486-

-12-

87

(1994)

(“[I]n

order

to

recover

damages

for

allegedly

unconstitutional conviction or imprisonment, or for other 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

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.” (footnote omitted)).
In the event that such criminal process has not terminated, this
Court should abstain.

See Younger v. Harris, 401 U.S. 37, 41-43

(1971) (ruling that federal courts should ordinarily abstain from
interfering with pending state-court criminal proceedings).
CONCLUSION
Plaintiff’s Amended Complaint is frivolous, fails to state a
claim, and seeks monetary damages from Defendants with immunity
from such relief.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.

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IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) because it is frivolous, because it fails to
state a claim on which relief may be granted, and because it seeks
monetary damages from Defendants with immunity from such relief.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 29, 2013

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