RANKIN v. SYKES et al
Filing
4
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/15/2019; that Plaintiff's Applications for Leave to Proceed In Forma Pauperis (Docke t Entry 1 ) are GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that the federal claims in these actions be dismissed pursuant to 28 U.S.C. § 1915(e)(2), and the state claims in these actions be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NIGEL MARQUELL RANKIN,
Plaintiff,
v.
RUFFIN SYKES, et al.,
Defendants.
NIGEL MARQUELL RANKIN,
Plaintiff,
v.
RUFFIN SYKES, et al.,
Defendants.
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1:18cv353
1:18cv550
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
These cases come before the Court on Plaintiff’s Applications
to Proceed In Forma Pauperis (the “Applications”) filed in Case
Numbers 1:18cv353 and 1:18cv550 (Docket Entry 1) in conjunction
with his pro se Complaints (Docket Entry 2).1
For the reasons that
follow, the Court will grant Plaintiff’s instant Applications for
the limited purpose of recommending dismissal of these actions
1
The Applications and Complaints in both cases bear the same
Docket Entry numbers.
under 28 U.S.C. § 1915(e)(2) as frivolous, for failing to state a
claim, and as barred by various immunity doctrines.
LEGAL STANDARD
“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.”
Cir.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
quotation
however,
[is]
marks
not
omitted).
without
its
problems. . . . 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.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To address this
concern, the in forma pauperis statute provides that “the [C]ourt
shall dismiss the case at any time if the [C]ourt determines . . .
the action . . . (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, “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
-2-
fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
‘frivolous’
is
inherently
elastic
and
not
“The word
susceptible
to
categorical definition. . . . 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.”
Nagy, 376 F.3d at 256–57 (some internal
quotation marks omitted).
In determining frivolousness, the Court
may “apply common sense.”
Nasim, 64 F.3d at 954.
As to the second ground, a plaintiff “fails to state a claim
on 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) (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
relief.”’”
possibility
and
plausibility
of
“entitlement
Id. (quoting Twombly, 550 U.S. at 557).
to
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.
-3-
Threadbare recitals of the
elements of
a
cause
of
action, supported
statements, do not suffice.”
by
mere
conclusory
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 government
entities and/or government personnel from liability for damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984) (discussing eleventh-amendment immunity of states and state
officials);
Pierson
v.
Ray,
386
U.S.
547
(1967)
(describing
interrelationship between 42 U.S.C. § 1983 and common-law immunity
doctrines); 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
2
Although “[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) (citation
and internal 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 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.’” (first quoting Erickson, 551
U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).
-4-
severely
limit
the
damage
remedy”
(internal
quotation
marks
omitted)).
INTRODUCTION
Plaintiff initiated the first action against six defendants:
(1) “Ruffin Sykes” (“ADA Sykes”), (2) “Martin McGhee” (“Judge
McGhee”), (3) “Patrice Hennit” (“Judge Hennit”), (4) “Catherine
McCormick” (“Attorney McCormick”), (5) “Valerie Thomas” (“Deputy
Clerk Thomas”), and (6) “Abigail Smith” (“Deputy Clerk Smith”).
(Rankin v.
Sykes,
No.
1:18cv353,
Docket Entry
Complaint”) at 1 (M.D.N.C. Apr. 30, 2018).)
2
(the
“First
In the second action,
Plaintiff again named the original six defendants and added eight
other defendants: (7) “Susan Frye” (“Clerk Frye”), (8) “Kalesha
Barrino”
(“Bondsman
Barrino”),
(9)
“Officer
Ferguson,
P.D.”
(“Officer Ferguson”), (10) “Forsyth County Hall of Justice” (the
“Hall of Justice”), (11) “City of Winston-Salem” (“Winston-Salem”),
(12) Forsyth County District Attorney’s Office,” (13) “The Superior
Court Clerk of Courts [sic] office” (the “Clerk’s Office”), and
(14) “personal capacity defendants [sic] bond insurer companies”
(the “Insurance Companies”).
(Rankin v. Sykes, No. 1:18cv550,
Docket Entry 2 (the “Second Complaint”) at 1 (M.D.N.C. June 25,
2018).)3
The
Second
Complaint
3
effectively
incorporates
the
The Second Complaint includes “Forsyth County” in its list
of “PARTIES,” but not in the caption.
(Compare Rankin, No.
1:18cv550, Docket Entry 2 at 3; and id. at 1. Therefore, “Forsyth
County” does not qualify as a defendant. See Fed. R. Civ. P. 10(a)
(requiring a complaint’s caption to “name all the parties”); see
-5-
allegations
of
the
First
Complaint.
(Compare
Rankin,
No.
1:18cv353, Docket Entry 2 at 3-14, with Rankin, No. 1:18cv550,
Docket Entry 2 at 1-17.)4
DISCUSSION
Although often hard to understand, the Complaints’ allegations
apparently
relate
to
“[e]vents,
occurrences,
and
transactions
. . . [Plaintiff] affirms took place in Forsyth County in February,
March, May and June of 2018 that give rise to [Plaintiff’s] cry and
supplication” (Docket Entry 2 at 2); more specifically, events that
occurred in Forsyth County Superior Court on February 5, 2018, and
March 26, 2018, and events leading up to and including Plaintiff’s
subsequent “arrest[s] and detainment on March 2, 2018, and June 1,
also Doe v. North State Aviation, LLC, No. 1:17cv346, 2017 WL
1900290, at *1 (M.D.N.C. May 9, 2017) (unpublished) (refusing to
address party not identified in caption). In any event, any claim
against Forsyth County in the Second Complaint fails as a matter of
law because it rests on the erroneous premise that Forsyth County
constitutes “the Employer of Susan Frye, Ruffin Sykes, [and the
Forsyth County District Attorney],” as well as the entity
“responsible for the policies, practices, and customs of the
Forsyth [C]ounty [H]all of Justice and the Forsyth County District
[A]ttorney’s Office, [and t]he Forsyth [C]ounty Superior Court
Clerk of Courts [sic] Office.” (Rankin, No. 1:18cv550, Docket Entry
2 at 3.) For reasons explained in the Discussion section below,
the State of North Carolina employs Clerk Frye, ADA Sykes, and the
Forsyth County District Attorney, and the Hall of Justice, District
Attorney’s Office, and Clerk’s Office in Forsyth County all qualify
as state agencies.
4
Accordingly, the Discussion that follows focuses on the
Second Complaint and parenthetical citations that follow refer to
the Second Complaint unless they include a specific reference to
case number 1:18cv353.
-6-
2018” (id. at 11).
The Court “cannot shoulder the full burden of
fashioning a viable complaint for a pro se plaintiff,” Simon v.
Shawnee Corr. Ctr., Civ. Action No. 13-521-GPM, 2013 WL 3463595, at
*1 (S.D. Ill. July 9, 2013) (unpublished), but liberal construction
permits the conclusion that the Complaints seek relief, pursuant to
18 U.S.C. §§ 241, 242 and 42 U.S.C. §§ 1983, 1985, for Defendants’
alleged
conspiracy
constitutional rights.
which
deprived
(See, e.g.,
Plaintiff
of
certain
Docket Entry 2 at 2, 6-12.)5
Even liberally construed, however, Plaintiff’s claims fail as a
matter of law.
A. Sections 241 and 242 Claims
As an initial matter, two of the statutes on which Plaintiff
relies - Sections 241 and 242 - do not provide for a private cause
of action. Any claims predicated on Sections 241 and 242 thus fail
as a matter of law, because “[o]nly the United States as prosecutor
can bring a complaint under 18 U.S.C. §§ 241-242 (the criminal
analogue of 42 U.S.C. § 1983),” Cok v. Cosentino, 876 F.2d 1, 2
5
The First Complaint also contains a vague reference to
“crime remove to federal court under 28 USC 1443(1)” (Rankin,
18cv353, Docket Entry 2 at 14). To the extent Plaintiff seeks to
remove a state criminal case under Section 1443(1), that endeavor
fails, because Section 1443(1) applies only upon a showing that the
state court would deny Plaintiff a right “aris[ing] under a federal
law ‘providing for specific civil rights stated in terms of racial
equality,’” Wilkins v. Rogers, 581 F.2d 399, 403 (4th Cir. 1978)
(quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)) (internal
emphasis and ellipsis omitted), and the First Complaint makes no
such showing (see Rankin, 1:18cv353, Docket Entry 2).
-7-
(1st Cir. 1989) (citations omitted).
See Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007) (“[D]ismissal of [plaintiff’s]
claims . . . alleging violations of [Section 241 and other statutes
in Title 18 and Title 26 of the United States Code] was proper
because these are criminal statutes that do not provide for a
private right of action and are thus not enforceable through a
civil action.”); Tribble v. Reedy, No. 89-6781, 888 F.2d 1387
(table), 1989
126783 (4th Cir. Oct. 20, 1989) (unpublished)
(affirming dismissal of civil action “alleg[ing] violations of 18
U.S.C. §§ 241, 1341 and 1343 . . . [because u]nless there is a
clear Congressional intent to provide a civil remedy, a plaintiff
cannot recover civil damages for an alleged violation of a criminal
statute”).
Accordingly, the Court should dismiss Plaintiff’s
claims to the extent they rely on those statutes.
B. Section 1983 Claim
Next,
to
state
a
claim
for
relief
under
Section
1983,
Plaintiff must assert “that [he was] deprived of a right secured by
the Constitution or laws of the United States, and that the alleged
deprivation was committed under color of state law.”
American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).6
6
To
Specifically, Section 1983 provides, in pertinent part, that
[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
-8-
plead a civil conspiracy under Section 1983, Plaintiff must show
that (1) Defendants acted jointly in concert, (2) to commit some
overt act in furtherance of the conspiracy, which (3) resulted in
the deprivation of Plaintiff’s constitutional rights.
See Hinkle
v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996).
In this
regard, courts can treat a private party acting in concert with
state officials in a conspiracy as acting under color of law for
Section 1983
immunity.
purposes
— even
if
the
state
officials
possess
See Dennis v. Sparks, 449 U.S. 24, 27–28 (1980).
However, Plaintiff must raise his Section 1983 claims “against
a ‘person’” capable of committing a violation of his constitutional
rights.
Conley v. Ryan, 92 F. Supp. 3d 502, 519 (S.D. W. Va. 2015)
(quoting 42 U.S.C. § 1983).
As “Congress did not exercise its
power to abrogate a state’s Eleventh Amendment immunity when it
enacted 42 U.S.C. § 1983,” Coffin v. South Carolina Dep’t of Soc.
Servs., 562 F. Supp. 579, 585 (D.S.C. 1983), “a State is not a
person within the meaning of § 1983,” Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 64 (1989).
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress[.]
42 U.S.C. § 1983 (emphasis added).
-9-
Construed liberally, the Complaints allege that Defendants
conspired together to deprive Plaintiff of his
Constitutional rights under United States Constitutional
Amendment 14 section 1 privileges and immunities clause,
the equal protection clause, the due process clause was
violated such as the right to be given a specific trial
date and time and assistance adequate notice, the right
to
have
[his]
appearance
record[ed]
like
other
defendant[s] who made physical appearance[s] in Superior
Court room 6-B on February 5 and March 26, 2018 in
Forsyth County, the right to be free from unlawful
arrest, the right to inquire into the restraints on
[Plaintiff’s] liberty and others mentioned in this
Affidavit.
(Id. at 12.)
According to the Complaints, Defendants committed
this deprivation through
proceeding[s] [which] were not fair and impartial
pretrial hearings because [Plaintiff] wasn’t allowed to
ask questions, have Constitutionally effective counsel,
wasn’t given adequate notice because [Plaintiff] was told
of [his] trial date the day of and given 1 hour to arrive
at the last minute, then had an order for an arrest
issued 2 times, each for days [Plaintiff] has proof [he]
made a physical appearance.
(Id.)
In particular, the Complaints assert that:
[Plaintiff] affirms that [he] was physically
present, [was] called, answered, spoke and [was] seen in
Superior Court room 6-B on 2/5/18 and 3/26/18. For
reasons to be determined by an Equitable Ruling,
[Plaintiff] has shockingly been arrested, and forced to
make bond for both appearances, consecutively, and has
had [his] verbal pleadings for correction and relief
ignored by [his] Court appointed Counsel and Bondsman
(Kalesha) who both were verbally made aware of the
deprivations while being knoedgeable of [Plaintiff’s]
appearances. [Plaintiff’s] physical appearance was not
recorded or given true credit by [ADA Sykes], [Deputy
Clerk Thomas], or [Judge McGhee] or [Judge Hennit] on 2/5
-10-
and 3/26. This first omission was followed by an order
for arrest for failure to appear with a 4,000$ [sic]
secured bond, which upon information and belief, was
filled [sic] 2/27/2018, and [Plaintiff] did have a note
from the warrant squad left at [his] house dated for
2/27/2018. The second omissions [sic] was followed by an
order for arrest for failure to appear with a 8,000$
[sic] secured bond, which upon information and belief,
was filled [sic] 3/28/2018, and [Plaintiff] did have a
note from the warrant squad left at [his] house for
3/28/2018.
(Id. at 2.)
In addition, the Complaints allege that:
[Defendants’] mind[s] w[ere] guilty intending
because they all are schooled in law and have courtroom
experience
and
Congress
put
the
United
States
Constitution and Federal Statute to protect U.S. Citizens
from injuries and invasions of natural and civil rights.
They took oath to uphold the positive law and United
States Constitution and told YHWH and man they would be
honorable in doing so. There was no cause of
justification for these actions because [Plaintiff]
appeared both times, after taking off work for over 16
hours, sitting in Court room 6-b long hours, talking face
to face to [ADA] Sykes, [Judge] McGhee, [Judge] Hennit,
and in front of [Deputy Clerk] Thomas and [Deputy Clerk]
Smith, just to be later arrested as if [Plaintiff] never
physically spoke in front of the stenographer Tanya Vines
the other people [Plaintiff] named, while [Plaintiff]
was inside Court room 6-b.
This process of telling
[Plaintiff] that [Plaintiff] can’t get Court Appointed
counsel and not letting [Plaintiff] get discovery
documents regarding the complaining officer affidavits,
not telling [Plaintiff] what day or time [Plaintiff’s]
trial date is and calling me less than 48 hours after
[Plaintiff] made an appearance at scheduled Court date,
to tell [Plaintiff] that [he] has 1 hour to be in court
or [he] will be arrested and maybe given a bail is a
constitutionally inadequate process because [Plaintiff]
is not given a fair chance to prepare for trial when [he]
could be facing jail time for a traffic citation that
[Plaintiff] has paid the Department of Motor Vehicles
fine for already and made attempts to take care of the
lawful way. Being arrested and having to use up most of
-11-
my savings after [Plaintiff] is already taking days out
of work to be in court in not fair to [Plaintiff] or any
under [sic] person put in a hard spot like [Plaintiff],
especially when on both those court dates other people
got specific dates and times that were at least a week
away.
. . . .
Defendants abused discretion by going against oath
to uphold Constitution and ensure justice by doing the
complete opposite by not following the commands Congress
gave to treat [Plaintiff] fairly and use safe steps to
make sure things are done the lawful way. . . .
. . . .
The agreements or communications, consultation,
cooperation, command from which an agreement can be
conferred are that they all know the 14th Amendment
clauses mentioned in this Complaint yet no [o]ne stepped
in to ensure Justice was properly administered. They got
paid for coming to work and used their job position to
carry out a plan to cause [Plaintiff] to go to jail. They
are connected to the injury, damage and liability because
had they all mentioned this, One hour standby and
continued to use this custom to cause [Plaintiff] to have
hardly any chance to prepare for trial.
. . . .
Defendants [ADA Sykes] and [Attorney McCormick]
acting individually and in concert, deliberately and
recklessly attempted to coerce [Plaintiff] into taking a
guilty plea despite no complainant being present and
request for an equitable determinations in violation of
[Plaintiff’s] 14th amendment right not to be deprived of
liberty without due process of law and to a fair criminal
trial.
. . . .
Defendants [Judge McGhee] and [Judge Hennit] acting
individually and in concert, fabricated information,
disregarded known grounds for dismissal, and deliberately
issued arrest orders for [Plaintiff] in violation of
[Plaintiff’s] 4th amendment right to liberty interest,
-12-
14th amendment right not to be deprived of liberty
without due process of law and to a fair criminal trial.
. . . .
Defendants [Deputy Clerk Thomas] and [Deputy Clerk
Smith] acting individually and in concert, deliberately
did not note [Plaintiff’s] appearance for the record, in
violation of [Plaintiff’s] 14th amendment right not to be
deprived of liberty without due process of law and to a
fair criminal trial.
. . . .
All named defendants, acting individually and in
concert, deliberately, despite knowing probable cause did
not exist to arrest, continually issued unlawful orders
for arrest and chose to enforce those orders while
simultaneously choosing to prosecute a complainant-less
claim, and caused to be arrested, continually detained
and prosecuted for false failure to appear allegations in
violation of [Plaintiff’s] 14th amendment rights not to
be deprived of liberty without due process of law, equal
protection under the law, privileges, and immunities and
to a fair criminal trial.
(Id. at 11-15 (bullet points omitted).)
i. ADA Sykes
Turning to the specific allegations against each Defendant,
Plaintiff has alleged that, with “authority to act as district
attorney . . . , [ADA Sykes] asked [Attorney McCormick] to ask
Plaintiff to plead guilty and just pay cost and fines without
imposing sentence given.”
(Id. at 3.)
The Complaints also state
that ADA Sykes chose not to “dismiss the [Plaintiff’s] case when
the
complaining
Additionally,
[officer]
according
to
failed
the
to
appear.”
Complaints,
ADA
(Id.
Sykes
at
4.)
“made
[Plaintiff] stay in the audience when [Plaintiff] tried to walk to
-13-
the table where the other defendants went that day.”
(Id. at 8.)
Further, Plaintiff has asserted that:
[ADA Sykes] routinely, notoriously, as a matter of
policy, custom, and pattern and practice violated
constitutional and ethical norms by deliberately and
recklessly failing to investigate known grounds for
dismissal in order to permit [ADA Sykes] to prosecute
[Plaintiff] without any form of equitable relief and
engaged in additional acts of prosecutorial misconduct
aimed at securing convictions at all cost.
(Id. at 13.) Finally, “[Plaintiff], upon information and belief[],
believes
[ADA
Sykes]
was
attempting
to
escape
some
type
of
financial obligation on his bond for the damages [Plaintiff] had
suffered from several injuries to [Plaintiff’s] personal property,
including but not limited to [Plaintiff’s] natural and civil
rights.”
Here,
(Id. at 9.)
the
Complaints
seek
damages
from
a
state
court
prosecutor and, further, fail to offer any factual allegations that
would suggest that ADA Sykes acted outside of the judicial phase of
the criminal prosecution. Coordinately, the Supreme Court has held
that
“absolute
immunity
appl[ies]
with
full
force”
to
a
prosecutor’s activities that remain “intimately associated with the
judicial phase of the criminal process.”
U.S. 409, 430 (1976);
Imbler v. Pachtman, 424
see also Polidi v. Bannon, 226 F. Supp. 3d
615, 620 (E.D. Va. Dec. 28, 2016) (“Prosecutors are absolutely
immune from suits for money damages for conduct in or connected
with judicial proceedings.”) Accordingly, the Court should dismiss
-14-
the Complaints’ claim(s) for damages against ADA Sykes in his
individual capacity.
To the extent the Complaints assert an official capacity
Section 1983 claim for damages against ADA Sykes, such claim would
fail as frivolous, because “a suit against a state official in his
or her official capacity is not a suit against the official but
rather is a suit against the official’s office,” Will, 491 U.S. at
71, and “a State is not a person within the meaning of § 1983,” id.
at 64.
In North Carolina, district attorneys and their assistants
act as arms of the State.
See N.C. Gen. Stat. §§ 7A-60 (creating
prosecutorial districts and position of district attorney), 7A-61
(empowering district attorneys to “prosecute in a timely manner in
the name of the State all criminal actions”), 7A-63 (providing for
assistant district attorneys to aid district attorney), 7A-65
(establishing compensation for district attorneys and assistant
district attorneys).
As a result, any official capacity damages
claim under Section 1983 against ADA Sykes suffers from an obvious
fatal defect, as “neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983,” Will, 491 U.S. at
71.
The foregoing analysis leaves only the issue of injunctive
and/or
declaratory
relief
against
-15-
ADA
Sykes
(in
either
his
individual or official capacity).7
general
reference
to
equitable
The First Complaint makes
relief
at
several
points
(see Rankin, No. 18cv353, Docket Entry 2 at 9-11), but, in terms of
specifics, mentions only “an injunction to prevent further civil
right derivations [sic] and to rectify past wrongs that occurred on
these times complained about” (id. at 10).
The Second Complaint
repeats that demand (see Docket Entry 2 at 17) and adds the
following requests:
1) “a preliminary injunction to restrain actors in [F]orsyth
[C]ounty from detaining [Plaintiff] . . . unlawfully without due
process so
that
[he]
can
peacefully
prepare
for
[his]
trial
injunction that will [e]njoin judge[s] from ordering [Plaintiff’s]
detention” (id. at 17-18);
2)
“a
declaratory
judgment
that
[Defendants’]
practices
violate [the] United States Constitution and Federal United States
Codes” (id. at 18);
3) “an injunction or decree making judges and clerks expunge
records of unlawful arrest and to [d]ischarge these [c]harges of
7
“[A] state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983 because
official-capacity actions for prospective relief are not treated as
actions against the State.” Will, 491 U.S. at 71 n.10 (internal
quotation marks omitted).
-16-
DWLR [driving while license revoked] because of the deprivations
suffered already” (id.);
4) “a permanent injunction guaranteeing [Plaintiff] peace
unless in gross violation of the Law” (id.); and
5)
“a
[d]eclaratory
judgment
confirming
and
asserting
[Plaintiff’s] rights, including but not limited to . . . not be
victimized by wholly arbitrary acts . . . [or] treated different
.
.
. for
traffic
citations[,]
.
.
.
to be
afforded
equal
protection of the Law, due process protection of the Law, and all
applicable statutory and equitable benefits, rights, privileges,
immunities,
and
protections,
.
.
.
to
life,
liberty,
and
property[,] . . . to accept the beneficial effects of . . . being
classified by the courts as a black natural person and United
States Citizen and North Carolina Citizen[,] . . . to not have
[his] protected rights improperly invaded by acts of [ADA] Sykes
and any other Public Actor and their agents[,] . . . to seek
redress for such wrongs such as . . . selective enforcement of
laws, exculpatory evidence not being admitted and ministerial
usurpation and oppression[,] . . . to have [his] appearances duly
recorded like others[,] . . . to a preliminary and permanent
injunction to prevent reasonable threat of repeated constitutional
violations[,] . . . to free expression and personal liberty, . . .
to bodily integrity[,] . . . to live peaceably in home without
-17-
being harassed or assaulted, [to] use public sidewalks and streets
without being assaulted, kidnapped, and thrown in a dungeon[,]
. . . to have personal rights, property rights, civil rights, and
civil liberties
protected
from
unlawful
invasions,
.
.
.
to
judicially assert actions, . . . [and] to recoup in action to
enforce liability” (id.).
The Court’s authority to afford declaratory relief arises only
“[i]n a case of actual controversy within its jurisdiction, . . .
upon the filing of an appropriate pleading . . . .”
2201(a).
28 U.S.C. §
Moreover, “[d]eclaratory judgments are not meant simply
to proclaim that one party is liable to another.”
Johnson v.
McCuskey, 72 F. App’x 475, 478 (7th Cir. 2003) (citing Loveladies
Harbor, Inc. v. United States, 27 F.3d 1545, 1553–54 (Fed. Cir.
1994) (en banc)).
Rather, declaratory judgments “define the legal
rights and obligations of the parties in the anticipation of some
future conduct.”
Johnson 72 F. App’x at 477 (emphasis added).
this regard,
under the facts alleged [in a complaint], there must be
a substantial continuing controversy between parties
having adverse legal interests.
The plaintiff must
allege facts from which the continuation of the dispute
may be reasonably inferred. Additionally, the continuing
controversy may not be conjectural, hypothetical, or
contingent; it must be real and immediate, and create a
definite, rather than speculative threat of future
injury. The remote possibility that a future injury may
happen is not sufficient to satisfy the “actual
controversy” requirement for declaratory judgments.
-18-
In
Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985) (citations
omitted).
“Basically, the question in each case is whether the
facts alleged, under all the circumstances, show that there is a
substantial
controversy,
between parties
having
adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”
Maryland Cas. Co. v. Pacific
Coal & Oil Co., 312 U.S. 270, 273 (1941).
Here, the requests for relief arise from Plaintiff’s belief
that Defendants’ acts, or their failures to act, resulted in his
wrongful arrests. (See Docket Entry 2.) In particular, he asserts
that
[a]s
of 6/25/2018,
[his]
most
recent
scheduled
appearance, [Attorney McCormick] and [ADA Sykes] . . .
both refused to give [Plaintiff] an adequate and fair
notice of trial. . . . [Plaintiff] feels that the
conspiracy to keep [him] deprived of [his] rights is
still in motion and [PLAINTIFF] NEEDS EMERGENCY
ASSISTANCE because [he] is in fear of [his] civil and
natural rights being violated and [of] suffering more
injuries because of this conspiracy.
(Id. at 13).
Although Plaintiff may believe that he will suffer future
injury, the factual matter provided reflects nothing more than a
“speculative
“‘actual
threat
of
controversy’
future
injury,”
requirement
for
which
falls
declaratory
Emory, 756 F.2d at 1552 (quoting 28 U.S.C. § 2201).
short
of
judgments,”
“Considering
that [P]laintiff’s allegations do not reflect an actual, continuing
controversy with . . . [D]efendant[s] that will result in a future
-19-
injury to [Plaintiff], [P]laintiff’s claim for declaratory relief
is without legal merit and is therefore frivolous.”
May v.
Patterson, Civ. Action No. 12-703, 2013 WL 4776345, at *6 (S.D.
Ala. Sept. 5, 2013) (unpublished).
Furthermore, as quoted above, the Complaints’ request for
injunctive relief suffers from gross overbreadth.
That defect
alone warrants dismissal of that aspect of Plaintiff’s claim
against ADA Sykes.
See generally PMB Prods., LLC v. Mead Johnson
& Co., 639 F.3d 111, 128 (4th Cir. 2011) (“[The Fourth Circuit]
will vacate an injunction if it . . . does not carefully address
only the circumstances of the case.”); Hayes v. North State Law
Enforcement Officers Ass’n, 10 F.3d 207, 217 (4th Cir. 1993)
(“Although injunctive relief should be designed to grant the full
relief needed to remedy the injury to the prevailing party, it
should not go beyond the extent of the established violation.”).
Additionally, “[w]hen a plaintiff seeks injunctive relief, the
‘injury in fact’ element of standing requires more than simply an
allegation of [a] defendant’s prior wrongful conduct.”
Harty v.
Luihn Four, Inc., 747 F. Supp. 2d 547, 551-52 (E.D.N.C. 2010)
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)).
A
plaintiff must demonstrate “a real or immediate threat that the
plaintiff will be wronged again - a likelihood of substantial and
immediate irreparable injury.”
Lyons, 461 U.S. at 111.
regard,
-20-
In that
bare allegations of what is likely to occur are of no
value since the court must decide whether the harm will
in fact occur. The movant must provide proof that the
harm has occurred in the past and is likely to occur
again, or proof indicating that the harm is certain to
occur in the near future.
Bloodgood v. Garraghty, 783 F.2d 470, 476 (4th Cir. 1986).
Here,
the Complaints offer only “bare allegations of what is likely to
occur,” id., and do not show “a likelihood of substantial and
immediate irreparable injury,” Lyons, 461 U.S. at 111.
Abstention principles articulated in Younger v. Harris, 401
U.S.
37
(1971),
further
compel
dismissal
of
the
Complaints’
requests for injunctive and/or declaratory relief as frivolous.
“In Younger, the Supreme Court detailed our ‘national policy
forbidding federal courts to stay or enjoin pending state court
proceedings
except
under
special
circumstances.’”
Nivens
v.
Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006) (“Nivens II”) (quoting
Younger, 401 U.S. at 41); see also Samuels v. Mackell, 401 U.S. 66,
73
(1971)
(holding
that,
“where
an
injunction
would
be
impermissible under [Younger abstention] principles, declaratory
relief should
ordinarily
be
denied
as
well”)).
The
Younger
doctrine generally requires abstention by a federal court “if (1)
there is an ongoing state judicial proceeding brought prior to
substantial progress in the federal proceeding; that (2) implicates
important, substantial, or vital state interests; and (3) provides
adequate opportunity to raise constitutional challenges.”
II, 444 F.3d at 241.
-21-
Nivens
As to the first of those elements, Plaintiff’s allegations (as
quoted above) indicate that proceedings in state criminal cases
began before the filing of the Complaints and remain ongoing.
As
to the second element, the Fourth Circuit has held that “North
Carolina has a very important, substantial, and vital interest in
preventing violations of its criminal laws.”
Nivens v. Gilchrist,
319 F.3d at 151, 154 (4th Cir. 2003) (“Nivens I”).
As to the third
element, the Fourth Circuit has ruled that “ordinarily a pending
state prosecution provides the accused a fair and sufficient
opportunity for vindication of federal constitutional rights.”
Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996).
Because the basic elements triggering Younger abstention arise
in this case, this Court could entertain Plaintiff’s claims only if
“(1) ‘there is a showing of bad faith or harassment by state
officials responsible for the prosecution’; (2) ‘the state law to
be applied in the criminal proceeding is flagrantly and patently
violative of express constitutional prohibitions’; or (3) ‘other
extraordinary
circumstances’
exist
that
present
a
threat
of
immediate and irreparable injury,” Nivens II, 444 F.3d at 241
(quoting Kugler v. Helfant, 421 U.S. 117 (1975)).
Here, the Complaints (again, as quoted above) do not contain
factual allegations that would bring this case within any of the
foregoing exceptions.
Plaintiff must challenge the legitimacy of
the charges against him in state criminal court and then, if
-22-
necessary, pursue appropriate relief.
See Ballenger v. Owens, 352
F.3d 842, 845–46 (4th Cir. 2003).
In sum, no aspect of the Complaints’ Section 1983 claim(s)
against ADA Sykes may proceed.
ii. Judge McGhee and Judge Hennitt
With regard to Plaintiff’s individual capacity claims against
Judge McGhee and Judge Hennit, the Complaints assert as follows:
During the first hearing at issue, held on February 5, 2018, in
front of Judge McGhee, Plaintiff requested “in writing a ruling
what [his] rights are from [his] Father in Heaven and Congress, and
[asked] about the issue at hand and that if [Attorney McCormick]
could not do much for being ‘stand-by counsel’. . ., could [Judge
McGhee] make her [Plaintiff’s] regular counsel.”
at 4.)
(Docket Entry 2
Judge McGhee “told [Plaintiff] that he had “waived [his]
rights to counsel,” denied his request for appointment of counsel,
told Plaintiff that “[Attorney] McCormick would remain assistant
counsel,” and directed Plaintiff to “leave the courts and be on a
[one hour] standby.”
(Id.)
“[Plaintiff] resisted the offer to
leave and told [Judge McGhee] that [Plaintiff] was confused as to
[Plaintiff’s] trial status and date and needed more clarity.”
(Id.)
“[Judge McGhee] told [Plaintiff] to inquire with assistant
counsel and to leave the court room before [Plaintiff] was held in
criminal contempt.”
(Id.)
The Complaints also allege that
[Judge] McGhee did not dismiss the complaint and chose to
continue prosecuting [Plaintiff] for this traffic
-23-
infraction against [Plaintiff] despite the complainant
failing to make any Superior Court appearance. [Judge
McGhee] also issued a [sic] order for arrest for failure
to appear on 2/5/18 with a 4000$ [sic] secured bond even
though [Plaintiff] spoke directly to [Judge] McGhee and
looked directly in his eyes as he threatened [Plaintiff]
with contempt of court on 2/5/18.
(Id. at 8.)
During Plaintiff’s hearing before Judge Hennit on March 26,
2018, Plaintiff objected to the setting of a trial date.
6.)
(Id. at
As Plaintiff voiced his objections, Judge Hennit stopped
Plaintiff and advised him that anything he said could be used
against him.
(Id.)
As such, Plaintiff
realized that [Judge Hennit] was in on it too obviously.
[Plaintiff] began to get enraged at the blatant
mistreatment and unfairness of [Judge Hennit]. . . .
Similar events that happen[ed] with [Judge] McGhee
happened in this matter. [Plaintiff] was told to leave,
and threatened with criminal contempt, only this time the
rage made [him] shout that [he would] file claim [sic]
for this deprivation and [Judge Hennit] said something
about jail.
(Id. at 6.)
Moreover,
[Judge] Hinnit [sic] did not dismiss the complaint and
chose to continue prosecuting [Plaintiff] despite the
complainant
failing
to
make
any
Superior
Court
appearance. [Judge Hennit] also issued an order for
arrest for failure to appear on 3/26/18 with a 4000$
[sic] secured bond even though [Plaintiff] spoke directly
to [Judge Hennit] and looked directly in her eyes as she
threatened [Plaintiff] with contempt of court on 3/26/18.
She even told [Plaintiff] she would note [his] appearance
but later issued an order for arrest the same day she
talked to [Plaintiff] face to face in front of [ADA
Sykes] and [Deputy Clerk Smith].
(Id. at 8.)
-24-
Notably, the Complaints allege that both Judge McGhee and
Judge Hennit presided, as judges, over Plaintiff’s state criminal
cases. (See id. at 3, 6.)
“Judges performing judicial acts within
their jurisdiction are entitled to absolute immunity from civil
liability claims,” In re Mills, 287 F. App’x. 273, 279 (4th Cir.
2008) (emphasis added), “even if such acts were allegedly done
either maliciously or corruptly,” King v. Myers, 973 F.2d 354, 356
(4th Cir. 1992) (citing Pierson, 386 U.S. 547, 554 (1967)).
See
also Mireles v. Waco, 502 U.S. 9, 11 (1991) (stating that “judicial
immunity
is
assessment
an
of
immunity
from
damages”).
suit,
To
not
determine
just
from
whether
ultimate
an
action
constitutes a “judicial act” protected by judicial immunity, the
Court must consider “whether the function is one normally performed
by a judge, and whether the parties dealt with the judge in his or
her judicial capacity.”
King, 973 F.2d at 357.
Thus, a plaintiff
can overcome the judicial immunity bar only if the judge’s “actions
were non-judicial or the actions were judicial but were taken
without jurisdiction.”
Evans v. Downey, No. 1:15-CV-117, 2016 WL
3562102, at *2 (W.D. Ky. June 24, 2016) (unpublished) (citing
Mireles, 502 U.S. at 13).
Here, the Complaints do not allege that either Judge McGhee or
Judge Hennit lacked jurisdiction over Plaintiff’s cases.
(See
Docket Entry 2 at 1-3.) The actions Plaintiff challenges - issuing
orders,
conducting
hearings,
and
-25-
the
like
-
all
qualify
as
judicial.
See King, 973 F.2d at 357.
Further, even though
Plaintiff alleges that Judge McGhee and Judge Hennit conspired with
other named Defendants to deny Plaintiff’s constitutional rights,
judicial immunity still applies.
See id. at 356 (ruling that
judicial immunity attaches even where a judge’s actions qualify as
malicious or corrupt); see also Mikhail v. Kahn, 991 F. Supp. 2d
596, 660 (E.D. Pa. 2014) (holding that “[j]udges are absolutely
immune from suit” for money damages arising from their judicial
acts, even if such acts took “place ex parte and without notice or
a hearing” (internal quotation marks omitted)).
Accordingly, both
Judge McGhee and Judge Hennit enjoy absolute judicial immunity from
Plaintiff’s damages claims.
Moreover, this immunity extends to Plaintiff’s request for
injunctive relief (whether brought in connection with individual
capacity or official capacity claims).
See Clay v. Osteen, No.
1:10cv399, 2010 WL 4116882, at *3-4 (M.D.N.C. Oct. 19, 2010)
(unpublished) (analyzing judicial immunity doctrine in monetary
damages and injunctive relief contexts), recommendation adopted,
slip op. (M.D.N.C. Nov. 17, 2010); see also, e.g., Pearson v.
District Att’y Billy W., No. 5:16-CT-3182, 2017 WL 5163368, at *5
(E.D.N.C. June 26, 2017) (unpublished) (“[J]udges have absolute
immunity from a claim for damages arising out of their judicial
actions.
Not only are judge[s] immune from claims for monetary
damages, they are immune from requests for injunctive relief.”
-26-
(citations omitted)), report and recommendation adopted sub nom.
Pearson v. West, No. 5:16-CT-3182, 2017 WL 5163235 (E.D.N.C. Nov.
7, 2017) (unpublished).8
Finally, any official capacity claim for damages against Judge
McGhee and Judge Hennit fails as a matter of law because the State
of North Carolina employs them, see N.C. Gen. Stat. §§ 7A-3
(bringing all court operations under control of state), 7A-41
(establishing superior courts and providing for superior court
judges), 7A-130 (establishing district courts), 7A-132 (providing
for district court judges).
“[A] suit against a state official in
his or her official capacity is not a suit against the official but
rather is a suit against the official’s office,” Will, 491 U.S. at
70, and “a State is not a person within the meaning of § 1983,” id.
at 64.
For all these reasons, the Court should dismiss Plaintiff’s
Section 1983 claims against Judge McGhee and Judge Hennit.
iii. Clerk Frye, Deputy Clerk Thomas, and Deputy Clerk Smith
With respect to Plaintiff’s claims against Clerk Frye, Deputy
Clerk Thomas, and Deputy Clerk Smith, the Complaints assert that:
8
To the extent Plaintiff has sought declaratory relief
against Judge McGhee and Judge Hennit, his request fails as a
matter of law.
As explained above in the discussion regarding
Plaintiff’s claims against ADA Sykes, the Complaints do not present
proper requests for “[d]eclaratory judgments [which] are meant to
define the legal rights and obligations of the parties in
anticipation of some future conduct.” Clay, 2010 WL 4116882, at *4
(internal quotations marks omitted).
-27-
Clerk [ ] Frye is held personally liable and on liable
official bond for misfeasance of [Deputy Clerk] Thomas,
clerk present on 2/5/2018 in Superior Court room 6B and
for misfeasance of [Deputy Clerk] Smith, clerk present on
2/5/2018 in Superior Court room 6B. [Clerk] Frye Name
[sic] was signed to Each order for arrest for failure to
appear.
[Deputy Clerk] Thomas failed to note [Plaintiff’s]
appearance for the record, docket, and calendar on 2/5,
creating the illusion that [Plaintiff] made no physical
appearance subsequently resulting in a warrant for arrest
for failure to appear.
[Deputy Clerk] Smith failed to note [Plaintiff’s]
appearance for the record, docket, and calendar on 3/26,
creating the illusion that [Plaintiff] made on physical
appearance subsequently resulting in a warrant for arrest
for failure to appear.
(Docket Entry 2 at 8, 9.)
Based on these allegations, quasi-judicial immunity shields
Clerk Frye, Deputy Clerk Thomas, and Deputy Clerk Smith from
Plaintiff’s individual capacity claims.
Such immunity exists “due
to the danger that disappointed litigants, blocked by the doctrine
of absolute immunity from suing the judge directly, will vent their
wrath on clerks, court reporters, and other judicial adjuncts.”
Ward v. Plymale, Civ. Action No. 3:12-6186, 2013 WL 6164277, at *19
(S.D. W. Va. Nov. 25, 2013) (unpublished) (internal quotation marks
omitted). This “immunity extends to those persons performing tasks
so integral or intertwined with the judicial process that these
persons are considered to be figurative arms of the very commanding
judge who is immune.”
Shelton v. Wallace, 886 F. Supp. 1365, 1371
(S.D. Ohio 1995); see also Jackson v. Houck, 181 F. App’x 372, 373
-28-
(4th
Cir.
2006)
(“Absolute
immunity
applies
to
all
acts
of
auxiliary court personnel that are basic and integral parts of the
judicial function.”).
Quasi-judicial immunity also forecloses any
claim for injunctive relief against Clerk Frye, Deputy Clerk
Thomas, and Deputy Clerk Smith.
See Montero v. Travis, 171 F.3d
757, 761 (2d Cir. 1999) (barring injunctive relief against a
quasi-judicial official); Gilmore v. Bostic, 636 F.Supp. 2d 496,
506 (S.D. W.Va. 2009) (same) (collecting cases).
To the extent the Complaints assert official capacity Section
1983 claims for damages against Clerk Frye, Deputy Clerk Thomas,
and Deputy Clerk Smith, such claims would fail as frivolous,
because “a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official’s office,” Will, 491 U.S. at 71, and “a State
is not a person within the meaning of § 1983,” id. at 64.
In North
Carolina, “[t]he clerk of superior court is a full-time employee of
the State,” N.C. Gen. Stat. § 7A-101(a), and “[a]ll personnel in
the clerk’s office are employees of the State,” N.C. Gen Stat.
§ 7A-102(a).
As a result, any official capacity claim against
Clerk Frye, Deputy Clerk Thomas, and Deputy Clerk Smith, under
Section 1983, suffers from an obvious fatal defect, as “neither a
State nor its officials acting in their official capacities are
‘persons’ under § 1983,” Will, 491 U.S. at 71.
-29-
Accordingly, the Court should dismiss the Section 1983 claims
against Clerk Frye, Deputy Clerk Thomas, and Deputy Clerk Smith.
iv. Attorney McCormick and Bondsman Barrino
Regarding
Attorney McCormick,
the
Complaints
assert
that
Plaintiff “felt [Attorney McCormick] was a party to the conspiracy
to deprive [Plaintiff] of federal liberties because [Plaintiff]
would not do things their customary erroneous illegal and unfair
way.”
(Docket Entry 2 at 6; see also id. at 14 (asserting that ADA
Sykes and Attorney McCormick “acting individually and in concert,
deliberately and recklessly attempted to coerce [Plaintiff] into
taking a guilty plea”).)
Further, Plaintiff has alleged that
“[Attorney] McCormick has not made any motions on [Plaintiff’s]
behalf did [sic] not make any attempt to correct the courts [sic]
error in issuing the order for arrest at any time before or after
this arrest have [sic] been made even though she had knowledge of
[Plaintiff’s] appearance and the order for arrest.”
(Id. at 8.)
It bears noting, however, that the Complaints also state that
Attorney McCormick served as Plaintiff’s “stand-by counsel” and
informed him that, in such capacity, she “could not make motions
for [him] or speak for [him], [she could] only answer [his]
questions.”
(Id. at 4.)
Finally, as to Bondsman Barrino, the
Complaints assert that
[Bondsman] Barrino knew of the unlawful arrest
pursuant to documents issued to her by the courts for a
warrant issued for [failure to appear] on 3/26/2018, but
[she] tried to passively coerce with the threat of
-30-
‘things getting bad for [Plaintiff]’ to turn [himself] in
with out time to get [his] affairs in order for an [sic]
bogus warrant she alleges was set for a appearance docket
for 3/28/2018 and that the warrant was not for 3/26/2018.
(Id. at 9.)
The foregoing conclusory allegations fail to state viable
conspiracy claims against Attorney McCormick and Bondsman Barrino.
See Iqbal, 556 U.S. at 680 (“[T]he plaintiffs’ assertion of an
unlawful agreement [i]s a legal conclusion and, as such, [i]s not
entitled to the assumption of truth.”) (internal quotation marks
omitted)).
Nor can Plaintiff maintain a non-conspiracy Section
1983 claim against Attorney McCormick or Bondsman Barrino, because
such claims require “state action,” Hall v. Quillen, 631 F.2d 1154,
1155 (4th Cir. 1980), and the Complaints fail to establish that
either Attorney McCormick or Bondsman Barrino qualify as state
actors. The claims against Attorney McCormick and Bondsman Barrino
therefore fail as a matter of law.
See, e.g., American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (holding that Section
1983’s under-color-of-state-law requirement “excludes from its
reach merely private conduct, no matter how discriminatory or
wrongful” (internal quotation marks omitted)).
To prove that a defendant acted under color of state law, “the
person charged must either be a state actor or have a sufficiently
close relationship with state actors such that a court would
conclude
actions.”
that
the
non-state
actor
is
engaged
in
the
state’s
Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,
-31-
615 (4th Cir. 2009).
Although a private entity may satisfy that
condition by performing functions “traditionally the exclusive
prerogative of the State,” Jackson v. Metropolitan Edison Co., 419
U.S. 345, 353 (1974), the Complaints lack any indication that either
Attorney McCormick or Bondsman Barrino’s actions so qualify (see
Docket Entry 2 at 3-9, 14-15).
To the contrary, the actions
attributed to Attorney McCormick and Bondsman Barrino fall outside
the reach of Section 1983.
See Erwin v. Byrd’s Bail Bonding, Civ.
Action No. 2:10–1948-CWH-RSC, 2010 WL 3463881, *2 (D.S.C. Aug. 5,
2010) (unpublished)(“It is well settled that bail bonding companies
and
bail
bondsmen
do
not
act
under
color
of
state
law.”),
recommendation adopted, 2010 WL 3489113 (D.S.C. Sept. 3, 2010); Kirk
v. Curran, No. 3:09CV301-3, 2009 WL 2423971, *1 (W.D.N.C. Aug. 4,
2009)
(unpublished)
(“[N]either
public
defenders
nor
private
criminal attorneys are ‘state actors’ under [Section] 1983.”),
aff’d, 357 F. App’x 529 (4th Cir. 2009).
Given these considerations, the Court should dismiss the
Section 1983 claims against Attorney McCormick and Bondsman Barrino.
v. Officer Ferguson
As to Officer Ferguson, the Complaints allege that, on June 3,
2018, “[Officer] Ferguson, communicating with [Bondsman Barrino] and
told [sic] to come to [Plaintiff’s] job and arrest [Plaintiff] did
so
and
attempted to have other officers make the arrest and
transport
[Plaintiff] to the detention center, but mistreated
-32-
[Plaintiff] and exposed [Plaintiff] unlawfully and intentionally to
air pollution and [Plaintiff] suffered damages.”
at 9.)
(Docket Entry 2
In this regard, Plaintiff alleges that, after Officer
Ferguson arrested Plaintiff,
[Officer] Ferguson moved [Plaintiff] to the back of his
car, that was still on and . . . the engine was running
and exhaust fumes were leaving the muffler and tailpipes
in the rear of the vehicle. [Plaintiff] asked [Officer]
Ferguson to move [Plaintiff] because the fumes and heat
from the exhaust was making [him] nauseous.
[Officer
Ferguson] said [Plaintiff] would be ok. [Plaintiff] asked
[Officer Ferguson] could [Plaintiff] make a phone call
because [he] was very fearful and wanted someone to know
what was happening to [him] before [he] was thrown away
in a dungeon for a month or so. [Officer Ferguson] said
yes and allowed [Plaintiff] to tell [sic] enter the
security code in [Plaintiff’s] phone.
As [Plaintiff]
called Trisha [he] began to sweat profusely and asked
[Officer] Ferguson] to move [Plaintiff] away from the
exhaust. [Officer Ferguson] refused. [Plaintiff] began
to faint and [Officer Ferguson] got angry and told
[Plaintiff], shouting, “don’t fall, stop falling, you
better not fall!” [Plaintiff] remember[s] waking on the
ground with who [he] thought was [Officer] Ferguson,
holding [him] up by the shoulders while [Plaintiff’s]
lower body was on the ground. When [Plaintiff] asked if
he could stand up because the fumes were in [his] face
more now, [he] could hear [Officer] Ferguson say, “when
you stop acting.” [Plaintiff] thought [Officer Ferguson]
was behind him but his voice was further away then and
behind [Plaintiff]. [Plaintiff] looked over [his] left
shoulder upward and saw a frown on [Officer Ferguson’s]
face while he was looking and touching in a scrolling
motion on [Plaintiff’s] phone. [Plaintiff] asked if [he]
could stand up again and [Officer Ferguson] said “when
you stop acting.” [Plaintiff] got enraged and afraid for
[his] life at the same time and fed up with the injustice
and shouted that [he] was going to “stand up right now,”
the officers resisted [him], then eventually let [him]
up, and [Plaintiff] demanded Ems be called and that [he]
be taken to the hospital. [Plaintiff] was diagnosed with
suffering from exposure to air pollution and received a
2000$ [sic] bill from the hospital weeks later.
[Plaintiff] was taken to jail afterward and had to pay
-33-
another 500 dollars to bonds by Amy because of the fruits
of the poisonous tree planted initially by [Judge] McGhee
and [ADA] Sykes and then watered and nurtured by [Judge]
Hennit, and other named defendants the chain of events
following [Plaintiff’s] appearances of 2/5 and 3/26.
(Id. at 7-8.)
Police officers possess immunity from Section 1983 liability
for money damages as long as “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.”
(1982).
“Qualified
Harlow v. Fitzgerald, 457 U.S. 800, 818
immunity
protects
officers
who
commit
constitutional violations, but who, in light of clearly established
law, could reasonably believe [their] actions were lawful.”
v.
Purnell,
652
F.3d
524,
531
(4th
Cir.
2011).
Henry
“For
a
constitutional right to be clearly established, its contours must
be sufficiently clear that a reasonable official would understand
that what he is doing violates that right . . . .”
536 U.S 730, 739 (2002).
Hope v. Pelzer,
Absent a constitutional violation, the
qualified immunity analysis “ends right then and there.”
Abney v.
Coe, 493 F.3d 412, 415 (4th Cir. 2007).
In
this
assertions
case,
(quoted
even
above)
liberally
that
construed,
Officer
the
Complaints’
Ferguson
“mistreated
[Plaintiff] and exposed [him] unlawfully and intentionally to air
pollution” (by requiring him to stand behind a vehicle) do not
plausibly
establish
that
Officer
Ferguson
unlawfully
deprived
Plaintiff of his constitutional rights. Therefore, the Court should
-34-
dismiss the Section 1983 claim against Officer Ferguson for failure
to state a claim or, alternatively, based on qualified immunity.
vi. Winston-Salem
In regards to Winston-Salem, the Complaints assert:
City of Winston Salem is a municipality that is a
political subdivision of the state of North Carolina, was
the Employer of [Judge Hennit] and [Judge McGhee], and is
and was at all times relevant to this complaint
responsible for the policies, practices, and customs of
the [Hall of Justice] and the Forsyth County District
attorney’s Office, [as well as the Clerk’s Office].
(Docket Entry 2 at 3.)
In addition, the Complaints allege that
“[t]he Winston Salem municipality hiring [Judge Hennit] is [sic]
liable for her actions in office under this local government
municipal One Hour Standby Trial Notice policy . . . .”
(Id. at
10.)
The Complaints thus seek damages from Winston-Salem based on
the premise that it employs Judge Hennit and Judge McGhee and
controls the operations of the Hall of Justice, the Clerk’s Office,
and the Forsyth County District Attorney’s Office.
However, Judge
Hennit and Judge McGhee work as officials within the North Carolina
judiciary, see N.C. Gen. Stat. §§ 7A-3 (consolidating all courts
within North Carolina into unified “General Court of Justice”), 7A-4
(creating “superior court division” and “district court division”
within “General Court of Justice”), 7A-41 (establishing superior
court and providing for superior court judges), 7A-130 (establishing
district courts), 7A-132 (providing for district court judges) and
-35-
the Hall of Justice, the Clerk’s Office, and the Forsyth County
District Attorney’s Office all fall under the authority of the State
of North Carolina (not local municipalities), see N.C. Gen. Stat.
§§ 7A-3 (bringing all court operations under control of state),
7A-60 (“The State shall be divided into prosecutorial districts
. . . .
There shall be a district attorney for each prosecutorial
district . . . .”), 7A-100 (establishing clerk’s offices).
The
Court therefore should dismiss all claims against Winston-Salem.
vii. Hall of Justice, the Clerk’s Office, and Forsyth County
District Attorney’s Office
“Inanimate objects, such as buildings, facilities, and grounds
do not act under color of state law.”
Jones v. Lexington Cty. Det.
Ctr., 586 F. Supp. 2d 444, 451 (D.S.C. 2008) recommendation adopted,
id. at 450; see also Rhodes v. Seventh Cir. Solicitors [sic] Office,
Civ. No. 9:09-1863, 2009 WL 2588487 at *3 (D.S.C. Aug. 19, 2009)
(unpublished) (dismissing Section 1983 claims against “Spartanburg
County Public Defenders Office” and “Seventh Circuit Solicitor’s
Office” because, as “either buildings or facilities,” they do not
“act under color of state law”).
Plaintiff thus cannot maintain a
claim against the Hall of Justice, the Clerk’s Office, or the
Forsyth County District Attorney’s Office.
Additionally, as explained in the preceding section, the Hall
of Justice, the Clerk’s Office, and the Forsyth County District
Attorney’s Office all operate as arms of North Carolina’s state
-36-
government.
As such, they do not qualify as “persons” amenable to
suit under Section 1983.
See, e.g., Grady v. Vickory, Civ. No.
5:11-CT-3212, 2013 WL 12121997, at *1 (E.D.N.C. May 8, 2013)
(unpublished) (citing Will, 491 U.S. at 71, and dismissing as
frivolous Section 1983 claims against Wayne County Clerk’s Office
and Wayne County District Attorney’s Office), appeal dismissed, 544
F. App’x 191 (4th Cir. 2013).
As a result, the Court should dismiss Plaintiff’s Section 1983
claims against the Hall of Justice, the Clerk’s Office, and the
Forsyth County District Attorney’s Office.
viii. Insurance Companies
Lastly, the Complaints provide no factual matter to support any
Section 1983 claim against the Insurance Companies.
Docket Entry 2.)
(See generally
The Complaints state only that “[i]nsurance
[c]ompanies giving surety bond of named defendants have a liability
to cover the damages generated by named defendants but [Plaintiff]
needs to initiate a discovery procedure for the names of companies.”
(Id. at 10.)
Because (for reasons shown above and below) no viable
claims lie against any “named defendants,” no “damages generated by
named defendants” exist as to which the Insurance Companies “have
a liability to cover.”
(Id.)
As such, the Court should dismiss
Plaintiff’s Section 1983 claim against Insurance Companies.
-37-
C. Section 1985 Claim
In regard to the Section 1985 claim, the Complaints appear to
proceed under Section 1985(3), as they offer no facts that could
sustain a claim under Section 1985(1) or (2).9
With respect to
Section 1985(3), the Complaints must show:
(1) a conspiracy of two or more persons, (2) who are
motivated
by
a
specific
class-based,
invidiously
discriminatory animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a
consequence of an overt act committed by the defendants
in connection with the conspiracy.
Thomas v. The Salvation Army S. Territory, 841 F.3d 632, 637 (4th
Cir. 2016) (internal quotation marks omitted).
Here, the Section 1985 claim rests on a conclusory assertion
of “personal animas [sic] shared by the named defendants for
[Plaintiff] not accepting the terms of their shared knowledgeable
9
“Section 1985(1) prohibits conspiracies to prevent
individuals from holding office or discharging official duties.”
Stankowski v. Farley, 251 F. App’x 743, 747 n.1 (3d Cir. 2007).
Meanwhile, Section 1985(2) addresses acts, in state court
proceedings, involving “force, intimidation, or threat” against
witnesses or jurors to obstruct justice because of race or other
group-related bias.
42 U.S.C. § 1985(2); see also Kush v.
Rutledge, 460 U.S. 719, 725-26 (1983) (explaining that the relevant
portion of Section 1985(2) “contains language requiring that the
conspirators’ actions be motivated by an intent to deprive their
victims of the equal protection of the laws,” further understood as
“racial,
or
perhaps
otherwise
class-based,
invidiously
discriminatory animus” (internal quotation marks omitted));
Stankowski, 251 F. App’x 743, 747 n.1 (3d Cir. 2007) (“Section
1985(2) prohibits conspiracies to prevent witnesses from testifying
in court, injuring witnesses who have testified, or attempting to
influence or injure grand or petit jurors.”). The Complaints do
not allege any such conduct. (See Docket Entry 2.)
-38-
act to get [him] to accept the contract to plead guilty and for
inquiring into the restraint on [his] liberties.”
at 6.)
(Docket Entry 2
Such allegations do not establish that Defendants acted out
of any racial or “specific class-based, invidiously discriminatory
animus,” Thomas, 841 F.3d at 637 (internal quotation marks omitted);
see
also
Griffin
v.
Breckenridge,
403
U.S.
88,
102
(1971)
(concluding that Section 1985(3) requires proof of “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action”).
Simply put, the Complaints’
conclusory assertions of a conspiracy do not plausibly assert a
claim under Section 1985(3).
See Iqbal, 556 U.S. at 678.10
10
Additionally, the Complaints request relief pursuant to 42
U.S.C. § 2000h-2.
(Docket Entry 2 at 17.)
More specifically,
Plaintiff asks “[f]or the Attorney General to [i]ntervene pursuant
to 42 U.S.C.A. (2000 H-2) and that the Attorney General [e]xplain
the Constitutionality of this 1 hour trial notice policy pursuant
to Rule 5.1 of the F.R.C.P.”
(Docket Entry 2 at 17.)
The
Complaints, however, contain no facts that plausibly suggest that
Defendants discriminated against Plaintiff on the basis of race,
color, religion, sex, or national origin. (See generally Docket
Entry 2.) As such, any request for intervention by the Attorney
General lacks merit.
The Complaints’ lack of factual matter
showing racial discrimination similarly precludes relief based on
the Complaints’ reference to “42 U.S.C.A. 1981 allow[ing Plaintiff]
the right to give evidence and receive full benefit of all laws and
proceedings for the security of persons or property subject to like
punishment” (id. at 2). See Aleman v. Chugach Support Servs. Inc.,
485 F.3d 206, 211 (4th Cir. 2007) (explaining that Section 1981
addresses “racial discrimination”). Finally, “[b]ecause [he] has
failed to state plausible claims for relief under Sections 1981,
198[3, and] 1985, . . . Plaintiff’s claim for attorneys’ fees under
[42 U.S.C. §] 1988 is moot and must be dismissed.”
Duncan v.
United Servs. Auto. Ass’n Ins., Civ. No. 14-2989, 2016 WL 3952091,
at *8 (E.D. La. July 22, 2016) (unpublished).
-39-
D. State-Law Claims
As a final matter, given the dismissal of the Complaints’
federal claims (i.e., the Sections 1983 and 1985 claims), the Court
should also dismiss any related state-law claims (e.g., obstruction
of justice (see Docket Entry 2 at 2). Federal courts “have original
jurisdiction of all civil actions arising under the Constitution
[and] laws . . . of the United States.”
28 U.S.C. § 1331.11
“[I]n
any civil action of which the [federal] courts have original
jurisdiction,
the
[federal]
courts
shall
have
supplemental
jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States
Constitution.”
28 U.S.C. § 1367(a).
Nevertheless, a federal court
“may decline to exercise supplemental jurisdiction over a claim,”
11
Federal courts also maintain “original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a). Under
Section 1332(a), original “jurisdiction does not exist unless each
defendant is a citizen of a different State from each plaintiff.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original). In these cases, the Complaints assert that
Plaintiff and at least one defendant qualify as citizens of North
Carolina (Docket Entry 2 at 1), thus precluding original
jurisdiction over these actions under Section 1332(a). Moreover,
the Complaints do not purport to invoke diversity jurisdiction.
(See id. at 2 (asserting “federal jurisdiction pursuant to
[Section] 1331, over claims arising under [Section] 1983”).)
Accordingly, federal question jurisdiction provides the only source
of the Court’s original jurisdiction over these matters.
-40-
28 U.S.C. § 1367(c), if it dismisses “all claims over which [it] has
original jurisdiction,”
28 U.S.C. § 1367(c)(3).
Here, as discussed above, Plaintiff’s federal claims (i.e.,
those claims arising under the Constitution and laws of the United
States) warrant dismissal under 28 U.S.C. § 1915(e)(2).
The Court
thus may appropriately decline to exercise supplemental jurisdiction
over Plaintiff’s state-law claims. See Shanaghan v. Cahill, 58 F.3d
106, 110 (4th Cir. 1995) (explaining that, pursuant to Section
1367(c)(3), “a [federal] court has discretion to dismiss or keep a
case when it ‘has dismissed all claims over which it has original
jurisdiction,’” and that “[t]here are no situations wherein a
federal court must retain jurisdiction over a state law claim, which
would not by itself support jurisdiction” (emphasis in original)).
CONCLUSION
The Court should dismiss the federal claims in the Complaints
under Section 1915(e)(2) as frivolous, for failing to state a claim,
and as barred by various immunity doctrines, and should decline to
exercise supplemental jurisdiction over the state claims in the
Complaints under Section 1367(c).
IT IS THEREFORE ORDERED that Plaintiff’s Applications for Leave
to Proceed In Forma Pauperis (Docket Entry 1) are GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
-41-
IT IS RECOMMENDED that the federal claims in these actions be
dismissed pursuant to 28 U.S.C. § 1915(e)(2), and the state claims
in these actions be dismissed without prejudice pursuant to 28
U.S.C. § 1367(c)(3).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 15, 2019
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