Glover v. Newman et al

Filing 9

ORDER DISMISSING 1 the Complaint as facially insufficient pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); DENYING Plaintiff's 6 Letter, construed as a MOTION to Appoint Counsel. Plaintiff shall have 14 days in which to file an Amended Complaint in accordance with this order and all applicable rules and procedures. If Plaintiff fails to file an Amended Complaint in accordance with this Order, this action will be dismissed without prejudice and closed without further notice to Plaintiff. ( Amended Complaint due by 8/10/2018.) Signed by Chief Judge Frank D. Whitney on 7/27/2018. (Pro se litigant served by US Mail.) (khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-167-FDW
BRUCE WAYNE GLOVER,

)
)
Plaintiff,
)
)
vs.
)
)
GREG NEWMAN, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 8). Also pending is Plaintiff’s Letter
seeking the appointment of counsel. (Doc. No. 6).
I.

BACKGROUND

Pro se Plaintiff, who is incarcerated at the Mountain View Correctional Institution, has
filed a civil rights suit pursuant to 42 U.S.C. § 1983. Plaintiff names as Defendants: Assistant
District Attorneys J. Douglas Mundy, Greg Newman, and Michael Bender. He alleges that
Defendants have violated due process and defamed his character by bringing false and “trumped
up” criminal charges against him. (Doc. No. 1 at 12). Their actions have allegedly resulted in two
consecutive sentence of 50 to 72 months’ imprisonment. He asks the Court to set aside the criminal
verdict and judgment, award him damages for pain and suffering, dismiss the charges, and grant
any other relief the Court deems appropriate.
On a separate page entitled “Conditions of Confinement,” Plaintiff alleges that correctional
personnel are deliberately indifferent for failing to carry out medical orders, and that prison
housing assignments are inconsistent with, or aggravate, a prisoner’s medical condition. (Doc. No.
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1 at 15).
II. STANDARD OF REVIEW
Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) 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)(B). In its frivolity
review, a court must determine whether the Complaint raises an indisputably meritless legal theory
or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to
relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
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civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III.
(1)

DISCUSSION

Prosecutorial Immunity
Prosecutors are absolutely immune as individuals from Section 1983 liability for acts

arising out of the exercise of their official functions. Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
This immunity applies only to the extent that prosecutors serve as advocates for the State. Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993). Therefore, a prosecutor’s administrative and
investigative duties that do not relate to the preparation for the initiation of a prosecution or for
judicial proceedings are not entitled to absolute immunity. Id.
Plaintiff alleges that the Defendants brought criminal charges against him that were
unfounded and excessive. Deciding whether, and with what offenses, an individual should be
charged with is a prosecutorial duty that is a traditional function of an advocate. See generally
Savage v. Maryland, __ F.3d __, 2018 WL 3398220 at *6 (4th Cir. July 13, 2018) (“whether to
‘initiat[e] a prosecution,’ of course, is in the heartland of the prosecutorial discretion covered by
absolute immunity.”) (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)). Therefore, absolute
prosecutorial immunity applies and the claims against Defendants are dismissed.
(2)

Criminal Convictions
Federal law opens two main avenues to relief on complaints related to imprisonment: a

petition for habeas corpus pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights
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act, § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004). “Habeas corpus, and not § 1983, is
the exclusive federal remedy for state prisoners seeking actual release from confinement,” Griffin
v. Baltimore Police Dep’t, 804 F.3d 692, 694–95 (4th Cir. 2015) (citing Preiser v. Rodriguez, 411
U.S. 475, 487–90 (1973)), and “requests for relief turning on circumstances of confinement may
be presented in a § 1983 action,” Muhammad, 540 U.S. at 750. Some cases are “hybrids,” where
a prisoner seeks damages, which are unavailable through a habeas action, but on allegations that
either imply the invalidity of an underlying conviction or of a particular ground for denying relief
short of serving the maximum term of confinement. Id. To address this situation, the Supreme
Court held in Heck v. Humphrey, 512 U.S. 477 (1994), that:
to recover damages for … harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction and sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus….
Id. at 485.
For Heck to bar a § 1983 claim, (1) “a judgment in favor of the plaintiff [must] necessarily
imply the invalidity of [a plaintiff’s] conviction or sentence,” Heck, 512 U.S. at 487, and (2), the
claim must be brought by a claimant who is either (i) currently in custody or (ii) no longer in
custody because the sentence has been served, but nevertheless could have practicably sought
habeas relief while in custody, Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015).
Further, federal courts must refrain from staying or enjoining pending state prosecutions
except under special circumstances. Younger v. Harris, 401 U.S. 37 (1971). Younger v. Harris,
401 U.S. 37 (1971). The Younger abstention doctrine extends to state civil proceedings that are
akin to criminal prosecutions, Huffman v. Pursue Ltd., 420 U.S. 592 (1972), or that implicate a
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state’s interest in enforcing the orders and judgments of its courts, Pennzoil Co. v. Texaco Inc.,
481 U.S. 1 (1987). Proceedings fitting within the Younger doctrine include state criminal
prosecutions, civil enforcement proceedings, and civil proceedings involving certain orders that
are uniquely in furtherance of the state courts’ ability to perform their judicial functions. New
Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367-68 (1989). A
federal court may disregard Younger’s mandate to abstain from interfering with ongoing state
proceedings only where extraordinary circumstances exist that present the possibility of irreparable
harm. Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) (internal quotations omitted).
In the instant case, Plaintiff alleges that he has been wrongfully prosecuted. He is a current
North Carolina inmate, he does not allege that his conviction has been overturned, and the relief
that he seeks – vacatur of his convictions and sentences – would necessarily undermine his
convictions. His § 1983 claim is therefore barred by Heck and will be dismissed without prejudice
as frivolous. Moreover, to the extent that Plaintiff suggests that any ongoing state court criminal
proceedings are improper and should be dismissed, the Court abstains from interfering in such
proceedings.
(3)

Conditions of Confinement
Finally, Plaintiff suggests that medical deliberate indifference is occurring at the institution

where he is confined with regards to medical treatment and housing conditions. However, he fails
to identify any individuals who were deliberately indifferent, set forth facts to describe where,
when, and how the alleged incidents occurred, explain his injury, or demand any relief. These
allegations are insufficient to state a claim and will be dismissed without prejudice.
IV.

MOTION FOR THE APPOINTMENT OF COUNSEL

Plaintiff has filed a Letter, (Doc. No. 6), that will be construed as a Motion for the
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Appointment of Counsel. In it, Plaintiff states that he has filed a civil suit and he needs a lawyer’s
help because he does not know the law and cannot afford to hire a lawyer.
There is no absolute right to the appointment of counsel in civil actions such as this one.
Therefore, a plaintiff must present “exceptional circumstances” in order to require the Court to
seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987). This case does not present exceptional circumstances
that justify appointment of counsel. Therefore, Plaintiff’s motion to appoint counsel will be denied.
V.

CONCLUSION

For the reasons stated herein, the Complaint is deficient and subject to dismissal. Plaintiff
shall have fourteen (14) days in which to file an Amended Complaint in which he may attempt to
cure these deficiencies and state a facially sufficient claim for relief. Although Petitioner is
appearing pro se, he is required to comply with all applicable timeliness and procedural
requirements, including the Local Rules of the United States District Court for the Western District
of North Carolina and the Federal Rules of Civil Procedure. The Amended Complaint must be on
a § 1983 form, which the Court will provide, and it must refer to the instant case number so that it
is docketed in the correct case. It must contain a “short and plain statement of the claim” showing
that Plaintiff is entitled to relief against each of the defendants. Fed. R. Civ. P. 8(a)(2). The
Amended Complaint must contain all claims Plaintiff intends to bring in this action, identify all
defendants he intends to sue, and clearly set forth the factual allegations against each of them.
Plaintiff may not amend his Complaint by merely adding defendants and claims in a piecemeal
fashion. The Amended Complaint will supersede the original Complaint so that any claims or
parties omitted from the Amended Complaint will be waived. See Young v. City of Mt. Ranier,
238 F.3d 567 (4th Cir. 2001).
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IT IS, THEREFORE, ORDERED that:
1. The Complaint, (Doc. No. 1), is DISMISSED as facially insufficient pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
2. Plaintiff shall have fourteen (14) days in which to file an Amended Complaint in
accordance with this order and all applicable rules and procedures. If Plaintiff fails to
file an Amend Complaint in accordance with this Order, this action will be dismissed
without prejudice and closed without further notice to Plaintiff.
3. The Clerk is directed to mail a copy of a new Section 1983 complaint form to Plaintiff.
4. Plaintiff’s Letter, (Doc. No. 6), is construed as a Motion for the Appointment of
Counsel and is DENIED.

Signed: July 27, 2018

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