LIVENGOOD v. BROWN et al
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/17/2022; that the Motion to Dismiss (Docket Entry 7 ) be granted, the Complaint be dismissed as to Defendant NCDPS, and Plaintiff's state claim be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). (Hicks, Samantha)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NORTH CAROLINA DEPARTMENT
OF PUBLIC SAFETY and
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge for a recommendation on Defendants’ Motion to
Dismiss (Docket Entry 7; see also Docket Entry 8 (Memorandum in
Support)). For the reasons that follow, the Court should grant the
Motion to Dismiss.
I[nstitution]” (Docket Entry 4 at 4), as a result of his 2009
“convict[ion for a] First Degree Sex Offense with a Child (Docket
Entry 8 at 2), initially filed the Complaint in the Rowan County,
North Carolina Superior Court on December 8, 2021 (see Docket Entry
4 at 1 (case caption listing “Rowan County . . . Superior Court”)).
Defendant Brown thereafter “remove[d] th[e] civil action from [the
state court] . . . to th[is Court].”
(Docket Entry 1 at 1.)
Complaint (docketed in this Court at Docket Entry 4) contends
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 1 of 12
Defendants violated Plaintiff’s due process rights under both the
United States Constitution and the North Carolina Constitution
because Plaintiff “was removed from his canteen job . . . because
of [a] red flag Defendant  Brown placed on him.”
4 at 4.)
Specifically, the Complaint alleges that “Defendant 
Brown tagged [Plaintiff’s] prison file [by noting Plaintiff] as
being a sexual violent predator.”
The Complaint disputes
this notation on Plaintiff’s file, stating that “nowhere in the
Judgement [sic] and commitment papers is there any order by the
Sentencing Judge or any other Judge listing Plaintiff  as a
(Id. at 5.)
In support of his contention,
Plaintiff attached to the Complaint two pages of his Judgment,
neither of which include a finding by the state court labeling
Plaintiff as a sexually violent predator.
(See generally Docket
Entry 1-2 at 11-12.)
The Complaint further states that, after learning of this
classification, Plaintiff “[f]iled [a g]rievance” (Docket Entry 4
at 4) with the prison and “wrote [Defendant ] Brown . . . [and]
clarification regarding the disputed notation (see id.; see also
Docket Entry 1-2 at 15-16, 20-22, 24-25 (internal grievance form
and letters to Defendant Brown and Commissioner Ishee)).
prison “Grievance Examiner” found “no violation of applicable
Prisons policy nor . . . evidence of misconduct . . . .”
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 2 of 12
Judgement [sic] and Commitment papers[, Plaintiff was] identified
by the courts as a sexual predator.”
(Id. at 23.)
allegedly received no response from the office of Commissioner
(Docket Entry 4 at 4.)
Plaintiff thereafter filed this
action, demanding damages and injunctive relief in the form of the
“North Carolina Department of Public Safety[ ] vacat[ing] the red
flag . . . listed in his Prison Record(s).”
(Id. at 7.)
(“Memorandum”), Defendant Brown argues that he played no role in
“the determination that Plaintiff was a sexually violent predator.”
(Docket Entry 8 at 5.)
As a result, the Memorandum contends that
the Complaint fails to state a claim against Defendant Brown in his
To support the claim of Defendant
Brown’s non-involvement, the Memorandum attaches as an exhibit a
third page to Plaintiff’s state court Judgment, entitled “Judicial
Findings and Order for Sex Offenders.”
(Docket Entry 8-1 at 1
signature as Plaintiff’s exhibits) (all-caps typeset omitted).)
classified as a sexually violent predator.” (Id.)
no response to the Motion to Dismiss.
(See Docket Entries dated
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 3 of 12
Apr. 4, 2022, to present; see also Docket Entry 9 (notice to
Plaintiff of his right to respond to Motion to Dismiss).)
A. Rule 12(b)(6) Standards
“A motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of the claims pled in a complaint.”
ACA Fin. Guar.
Corp. v. City of Buena Vista, Va., 917 F.3d 206, 211 (4th Cir.
“To sufficiently plead a claim, the Federal Rules of Civil
Procedure require that a pleading . . . contain . . . a short and
plain statement of the claim showing that the pleader is entitled
Id. (citing Fed. R. Civ. P. 8(a) (internal brackets
and quotation marks omitted)).
Although “[t]his pleading standard
does not require detailed factual allegations,” id., a complaint
must “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)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).1
The Court thus need not
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, 551
U.S. at 94 (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 standards than formal pleadings drafted by lawyers.’
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 4 of 12
accept as true any “legal conclusions,” id., or “bare assertions
devoid of further factual enhancement,” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
As a general matter, in ruling on a Rule 12(b)(6) motion, “a
court evaluates the complaint in its entirety, as well as documents
attached or incorporated into the complaint.”
E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.
The Court may also consider documents “attached to the
motion to dismiss, so long as they are integral to the complaint
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176,
180 (4th Cir. 2009).
Typically, a “court cannot go beyond these
documents” without “convert[ing] the motion into one for summary
E.I. du Pont, 637 F.3d at 448.
Even so, “[i]n
reviewing a Rule 12(b)(6) [motion, the Court] may properly take
judicial notice of matters of public record.” Philips, 572 F.3d at
180; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007) (observing that “sources courts ordinarily
examine when ruling on Rule 12(b)(6) motions to dismiss” include
“the complaint in its entirety, as well as . . . documents
incorporated into the complaint by reference, and matters of which
a court may take judicial notice”).
“[T]he most frequent use of
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)).
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 5 of 12
judicial notice of ascertainable facts is in noticing the content
of court records.”
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236,
1239 (4th Cir. 1989) (internal quotation marks omitted).
B. Due Process
See 42 U.S.C. § 1983.
To state a viable
Section 1983 claim, Plaintiff must show that Defendants “deprived
[him] 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).
The Fourteenth Amendment prohibits the States
from “depriv[ing] any person of life, liberty, or property without
due process of law.”
U.S. Const. amend. XIV.
“The touchstone of
due process is protection of the individual against arbitrary
action of government.”
Wolff v. McDonnell, 418 U.S. 539, 558, 94
S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974).
“Due process contains
both substantive and procedural components.” Snider Int’l Corp. v.
Town of Forest Heights, Md., 739 F.3d 140, 145 (4th Cir. 2014).
“Procedural due process prevents mistaken or unjust deprivation,
while substantive due process prohibits certain actions regardless
of procedural fairness.”
“[A] plaintiff asserting a 
substantive due process claim must allege both the deprivation of
his life, liberty or property interest by a state actor, and that
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 6 of 12
Callahan v. North Carolina Dep’t of Pub.
Safety, 18 F.4th 142, 145 (4th Cir. 2021) (quoting Collins v. City
of Harker Heights, Tex., 503 U.S. 115, 129 (1992)).
defendant, the plaintiff must present “sufficient factual matter,”
Iqbal, 556 U.S. at 678, to show that the defendant personally
played a role in the alleged deprivation of constitutional rights,
individual actions, has violated the Constitution.”); Cook v.
James, 100 F. App’x 178, 180 (4th Cir. 2004) (“[The p]laintiff]
must establish that [the d]efendant  was personally involved in
the deprivation of his constitutional rights in order to sustain a
claim under § 1983.”); Wright v. Collins, 766 F.2d 841, 850 (4th
Cir. 1985) (“[I]t must be affirmatively shown that the official
charged acted personally in the deprivation of the plaintiff’s
rights.” (internal quotation marks omitted)); Gerald v. Greene,
Civ. Action No. 17-3737, 2019 WL 430854, at *3 (D. Md. Feb. 1,
2019) (“The official’s own individual actions must have violated
the Constitution.” (internal quotation marks omitted)).
C. The Complaint Fails to State a Federal
Constitutional Claim against Defendant Brown
Plaintiff here has failed to state a due process claim against
Defendant Brown because the record reflects that Defendant Brown
did not make the classification of Plaintiff as a sexually violent
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 7 of 12
Plaintiff’s conclusory allegations that “nowhere in the
Judgement [sic] and commitment papers is there any order by the
Sentencing Judge or any other Judge listing Plaintiff  as a
sexual predator” (Docket Entry 4 at 5), and that “[Defendant] Brown
issued the red flag aka ‘sexual violent predator’ on his own power
and authority” (id. at 6), cannot stand in light of the attachment
to Defendant Brown’s Memorandum, wherein the state court judge
overseeing Plaintiff’s trial explicitly made that classification
(see Docket Entry 8-1).
Although a court, in ruling on a Rule
12(b)(6) motion, generally only looks to alleged facts in “the
complaint . . . [and] documents attached or incorporated into the
E.I. du Pont de Nemours, 637 F.3d at 448, it may also
consider documents “attached to the motion to dismiss, so long as
they are integral to the complaint and authentic,” Philips, 572
F.3d at 180.
Defendant Brown’s exhibit here contains “Judicial
One of those findings, that Plaintiff “has been
classified as a sexually violent predator” (id.), goes directly to
Plaintiff’s claim in this action.
Moreover, Plaintiff has not challenged the authenticity of the
exhibit, which bears the same date, case number, and judge’s name
and signature as Plaintiff’s exhibits.
(Compare Docket Entry 1-2
at 11-12, with Docket Entry 8-1 at 1.)
As a result, the Court may
consider the exhibit to Defendant Brown’s memorandum because “[it
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 8 of 12
is] integral to the [C]omplaint and authentic.”
Nemours, 637 F.3d at 448.
E.I. du Pont de
That a court may, “[i]n reviewing a Rule
12(b)(6) [motion,] properly take judicial notice of matters of
Philips, 572 F.3d at 180, such as “the content of
court records,” Colonial Penn, 887 F.2d at 1239, further supports
consideration of the exhibit to the Memorandum in this case.
Such consideration requires dismissal of Plaintiff’s claim
against Defendant Brown.
Said exhibit, signed and dated June 11,
2009, includes a finding by the state court that Plaintiff “has
been classified as a sexually violent predator.”
(Docket Entry 8-
As the Complaint concedes, Plaintiff’s prison file did not
reflect this classification until “after [he] was convicted and
(Docket Entry 4 at 4.)
Thus, accepting as true the
Complaint’s assertion that in August 2020 “Plaintiff  was removed
from his canteen job . . . because of the red flag” (id.), his
removal did not result from any action of Defendant Brown, but
rather a judicial finding. (See Docket Entry 8-1.)
the Complaint lacks “sufficient factual matter,” Iqbal, 556 U.S. at
678, to show that Defendant Brown personally played a role in the
alleged deprivation of Plaintiff’s constitutional rights.
e.g., id. at 676; Cook, 100 F. App’x at 180; Wright, 766 F.2d at
850; Gerald, 2019 WL 430854, at *3.
As a result, the Complaint
fails to state a federal constitutional claim against Defendant
See Fed. R. Civ. P. 12(b)(6).
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 9 of 12
D. The Complaint Also Fails to State A Federal
Constitutional Claim against Defendant NCDPS
Although Defendant NCDPS did not bring its own motion to
dismiss, the Court has an independent obligation to review the
Complaint’s sufficiency as to each Defendant.
See 28 U.S.C. §
1915A(a)&(b) (“The court shall review . . . [the] complaint in a
civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity . . . [and]
shall identify cognizable claims or dismiss the complaint . . . if
the complaint . . . fails to state a claim upon which relief may be
As noted above, Section 1983 provides the cause of
action to assert the constitutional violation Plaintiff alleges
But the Complaint fails to state a claim against Defendant
NCDPS because Defendant NCDPS, as a state agency, constitutes “an
arm of the state,” Hanifee v. Board of Educ. of Kent Cnty., Civ.
Action No. 09-2381, 2010 WL 723772, at *5 (D. Md. Feb. 24, 2010),
and Section 1983 “does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of civil
liberties,” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66
Under Section 1983, “neither the state nor a state agency
Correction, No. 5:06-CV-171, 2007 WL 2904182, at *5 (E.D.N.C. Sept.
29, 2007); see also Cochran v. West Virginia Reg’l Jail & Corr.
Facility Auth., Civ. Action No. 3:13-10176, 2014 WL 2973486, at *3
(S.D.W. Va. July 2, 2014) (observing that “a ‘person’ suable for
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 10 of 12
damages under § 1983 does not include a state agency”).
result, Plaintiff’s federal constitutional claim against Defendant
NCDPS cannot proceed, and the Court should dismiss it.
U.S.C. § 1915A(a)&(b).2
D. Plaintiff’s State Constitutional Claim
Finally, the Complaint also alleges a violation of the North
(See Docket Entry 4 at 5.)
above, Plaintiff’s federal constitutional claim cannot proceed
against either Defendant.
As a result, the Court should dismiss
without prejudice Plaintiff’s state constitutional claim.
U.S.C. § 1367(c)(3) (permitting district courts to decline to
exercise supplemental jurisdiction over state law claims when the
Plaintiff has failed to state a due process claim against
Defendants upon which relief may be granted.
2 Even if Plaintiff could bring a Section 1983 claim against
Defendant NCDPS (and he cannot), the factual issues undermining
Plaintiff’s claim against Defendant Brown would similarly undermine
the claim against Defendant NCDPS.
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 11 of 12
IT IS THEREFORE RECOMMENDED that the Motion to Dismiss (Docket
Entry 7) be granted, the Complaint be dismissed as to Defendant
NCDPS, and Plaintiff’s state claim be dismissed without prejudice
pursuant to 28 U.S.C. § 1367(c)(3).
This 17th day of November, 2022.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Case 1:22-cv-00171-CCE-LPA Document 10 Filed 11/17/22 Page 12 of 12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?