HOLMES v. BRYANT et al
Filing
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MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 06/19/2014; that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation. FURTHER that within twenty (20) days from the date of this Order Plaintiff make an initial filing fee payment of $4.50. FURTHER that Plaintiff's trust officer shall be directed to pay to the Clerk of this Court 20% of a ll deposits to his account starting with the month of July, 2014, and thereafter each time that the amount in the account exceeds $10.00 until the $400.00 filing fee has been paid. If an inmate has been ordered to make Prison Litigation Reform Act payments in more than one action or appeal in the federal courts, the total amount collected for all cases cannot exceed 20 percent of the inmate's preceding monthly income or trust account balance, as calculated under 28 U.S.C. 67; 1915(b)(2). RECOMMENDED that the Complaint [Doc. # 2 ] be dismissed pursuant to 28 U.S.C. § 1915A(b) because it fails to state a claim on which relief may be granted and seeks damages from defendants who are immune from such relief. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANTONE A. HOLMES,
Plaintiff,
v.
SGT WILLIS RICHARD BRYANT, et al.,
Defendant(s).
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1:14CV418
MEMORANDUM OPINION, ORDER,
AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Antone A. Holmes, submitted a pro se Complaint [Doc. #2] under 42 U.S.C.
§ 1983 and requests permission to proceed in forma pauperis pursuant to 28 U.S.C. § l915(a).
Plaintiff names four Salisbury, North Carolina, police officers and two Rowan County, North
Carolina, Magistrates as Defendants. (Complaint, § IV(B).) The Complaint alleges that the
officers investigated a shooting incident, and that following the investigation one of the
Defendants obtained an arrest warrant for Plaintiff for possession of a firearm by a felon and
Defendant Shulenburger obtained an arrest warrant for Plaintiff for assault with a deadly
weapon on a government official. (Id., § V.) The Magistrates named as Defendants issued
those warrants. (Id.) Plaintiff raises several points contesting the evidence gathered by the
officers and claims that the warrants and, therefore, his arrests were improper in light of the
evidence. He seeks the dismissal of the charges against him, an investigation of the officers
and Rowan County, and $10,000 from each of the Defendants in both their individual and
official capacities. (Id., § IV.)
Because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer
or employee of a governmental entity,” this Court has an obligation to “review” his new
claims. 28 U.S.C. § 1915A(a). “On review, the court shall . . . dismiss the complaint, or
any portion of the complaint, if [it] – (1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a defendant who is immune
from such relief.” 28 U.S.C. § 1915A(b).
Applicable here, a plaintiff “fails to state a claim upon which relief may be granted,”
28 U.S.C. § 1915A(b)(1), 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)). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id.1 The Court may also anticipate affirmative
1
Although the Supreme Court has reiterated that “[a] document filed pro se is to be liberally construed and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation marks omitted), the United States
Court of Appeals for the Fourth Circuit has “not read Erickson to undermine Twombly’s requirement that a pleading
contain more than labels and conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal
quotation marks omitted) (applying Twombly standard in dismissing pro se complaint); accord Atherton v. District of
Columbia Off. of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent
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defenses that clearly appear on the face of the complaint. Nasim v. Warden, Md. House of
Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc).
In addition, dismissal is appropriate under 28 U.S.C. § 1915A(b)(2) in 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 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”).
For the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C.
§ 1915A(b) because it fails to state a claim on which relief may be granted and seeks
damages from defendants who are immune from such relief.
In undertaking this review, the Court initially notes that two of Plaintiff’s three
requests for relief are improper. He first seeks the dismissal of his state court criminal
charges, but § 1983 is not the proper vehicle for attacking pending criminal charges in state
1
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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 697, respectively)).
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court. Instead, Plaintiff would have to proceed, if at all, by filing a petition for a writ of
habeas corpus under 28 U.S.C. § 2241. However, Plaintiff should be aware that it is not
ordinarily proper for this Court to intervene in ongoing state criminal proceedings. Such
intervention could only occur in instances of bad faith, irreparable injury beyond the burden
of defending the criminal action, or a lack of available state court remedies. See Younger
v. Harris, 401 U.S. 37 (1971); Gilliam v. Foster, 75 F.3d 881, 904-905 (4th Cir. 1996).
Plaintiff does not make such a showing here. Instead, he raises the types of issues that
typically can be raised during a state criminal proceeding. Unless Plaintiff can meet the
requirements set out above, he should litigate the issues he raises in his state court criminal
case.
Plaintiff also seeks an investigation of the Defendant officers and Rowan County.
However, the Court does not conduct investigations, and investigations are not an obtainable
form of relief in a civil lawsuit.
To the extent Plaintiff has asserted a claim for damages, two Defendants in the case
are immune from damages. Plaintiff names two state Magistrates, R.T. Wyrick and L.A.
Stone, as Defendants because they issued warrants in his case. However, judges have
absolute immunity for their judicial actions. Stump v. Sparkman, 435 U.S. 349 (1978).
Therefore, Defendants Wyrick and Stone are immune from Plaintiff’s request for damages
and his claims against them should be dismissed.
Plaintiff’s remaining claims are against four Salisbury police officers, Willis Richard
Bryant, A. L. Bouk, J. N. Wilson, and T. B. Shulenburger. Plaintiff does not identify the
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exact nature of his claims, but the claims appear to be for false arrest or false imprisonment.
Claims of false arrest or imprisonment constitute common law torts, the elements of which
are used to define a claim under § 1983 based on the Fourth Amendment to the United States
Constitution. Lambert v. Williams, 223 F.3d 257, 261 (4th Cir. 2000). However, the facts
Plaintiff alleges do not support such claims. “In Brooks v. City of Winston–Salem, 85 F.3d
178 (4th Cir.1996), [the United States Court of Appeals for the Fourth Circuit] held that a
public official cannot be charged with false arrest when he arrests a defendant pursuant to
a facially valid warrant. At most, such an official can be pursued through a cause of action
for malicious prosecution.” Porterfield v. Lott, 156 F.3d 563, 568 (4th Cir. 1998). Here, the
Complaint makes it clear that Plaintiff’s arrest occurred pursuant to warrants for possession
of a firearm by a felon and assault with a deadly weapon on a government official.
Therefore, his claim must be one for malicious prosecution, rather than false arrest or
imprisonment. A malicious prosecution claim requires that a plaintiff “allege and prove a
termination of the criminal proceedings favorable to [the plaintiff].” Brooks, 85 F.3d at 183.
Plaintiff does not allege any favorable termination of the charges against him and, in fact,
seeks dismissal of the still pending charges as relief. Plaintiff thus does not state any claim
for malicious prosecution.
Construing Plaintiff’s claims in the light most favorable to him, he may also be
alleging that the warrants for his arrest were not facially valid or that officers did not use
good faith or believe when procuring the warrant that probable cause existed to charge
Plaintiff with possession of a firearm by a felon and assault with a deadly weapon on a
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government official. If so, this attempt to state a claim is foreclosed by Plaintiff’s own
allegations.
“Probable cause to justify an arrest arises when ‘facts and circumstances within the
officer’s knowledge ... are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.’” Porterfield, 156 F. 3d at 569 (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37(1979)). Probable cause “‘is an objective standard
of probability that reasonable and prudent persons apply in everyday life’ and that “requires
more than ‘bare suspicion’ but requires less than evidence necessary to convict.” Id. (quoting
United States v. Gray, 137 F.3d 765, 769 (4th Cir.1998)).
Plaintiff alleges in the factual portion of his Complaint (§ V) that the police officer
Defendants investigated an incident in which someone allegedly fired a handgun at an officer
from the yard of a residence as the officer attempted to make a traffic stop. The officers
searched the residence and premises and located a black handgun with a brown handle in the
backyard. Two witnesses spoke to the police and reported that Plaintiff was present when
the shots were fired and that he possessed a gun similar to the one found in the yard.
However, both said they did not see him actually fire the shots. Based on this information,
one of the Defendants, possibly Defendant Bryant, went to Defendant Wyrick and obtained
a warrant for Plaintiff’s arrest on the felon in possession charge.2 Later, Defendant
2
Plaintiff does not allege that he has prior felony convictions in his Complaint, but the records of the North
Carolina Department of Public Safety indicate that “Antone A. Holmes” has a lengthy felony record that includes
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Shulenburger interviewed a third witness who previously stated that she did not see the
shooting. Plaintiff alleges that Shulenberger told the witness that he did not believe her, that
this was a serious crime, and that she needed to tell the truth. She then stated that she did see
the shooting and that Plaintiff fired the shots. Shulenberger used her statement to obtain the
assault warrant from Defendant Stone.
Looking at the totality of the circumstances described in the information presented by
Plaintiff, the officers had probable cause to seek the arrest warrants against Plaintiff for
possession of a firearm by a felon and assault with a deadly weapon on a government official.
Plaintiff has a lengthy felony record and multiple witnesses viewed him in possession of a
handgun on the night in question. A handgun similar to the one they described was also
recovered. Multiple witnesses reported that he was present at the time of the shooting and
one identified him as the shooter. All of this provides probable cause for his arrest. Plaintiff
points out that no fingerprints or DNA were recovered from the gun, states that witnesses had
motives to lie or changed their stories, and argues that Shulenburger pressured the witness
to implicate him in the shooting. These are all points that can be pursued during Plaintiff’s
criminal defense in state court. However, they do not negate the existence of probable cause.
This conclusion does not imply that Plaintiff will ultimately be convicted, only that
information existed to establish more than a “bare suspicion” for the charges against Plaintiff.
2
(...continued)
multiple felony convictions. See http://www.doc.state.nc.us/offenders (search for “Antone A. Holmes” last completed
June 13, 2014).
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He does not state any claim for relief based on false arrest, false imprisonment, or malicious
prosecution. Therefore, his Complaint should be dismissed.
As a result, Plaintiff’s request to proceed in forma pauperis should not be approved,
with the exception that in forma pauperis status shall be granted for the sole purpose of
entering this Order and Recommendation. Plaintiff has submitted the Complaint for filing,
however, and, notwithstanding the preceding determination, § 1915(b)(1) requires that he
make an initial payment of $4.50.
IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole
purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that within twenty (20) days from the date of this Order
Plaintiff make an initial filing fee payment of $4.50.
IT IS FURTHER ORDERED that Plaintiff’s trust officer shall be directed to pay to
the Clerk of this Court 20% of all deposits to his account starting with the month of July,
2014, and thereafter each time that the amount in the account exceeds $10.00 until the
$400.00 filing fee has been paid.
If an inmate has been ordered to make Prison Litigation Reform Act payments in more
than one action or appeal in the federal courts, the total amount collected for all cases cannot
exceed 20 percent of the inmate’s preceding monthly income or trust account balance, as
calculated under 28 U.S.C. § 1915(b)(2).
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IT IS RECOMMENDED that the Complaint [Doc. #2] be dismissed pursuant to 28
U.S.C. § 1915A(b) because it fails to state a claim on which relief may be granted and seeks
damages from defendants who are immune from such relief.
This, the 19th day of June, 2014.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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