Henderson v. Cabarrus County Sheriff's Office et al

Filing 26

ORDER adopting the Magistrate Judge's 22 Memorandum and Recommendations. Defendants' 12 Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) is GRANTED WITHOUT PREJUDICE to Plaintiff refiling in t he appropriate district under applicable law. Defendants' 13 Motion to Dismiss under Rule 12(b)(5) is DENIED as moot. Defendants' 14 Motion to Dismiss under Rule 12(b)(3) is DENIED as moot. Defendants' 16 Motion to Dismiss under Rule 12(f) is DENIED as moot. The Clerk is directed to close this case. Signed by Senior Judge Robert J. Conrad, Jr on 1/6/2025. (Pro se litigant served by US Mail.)(brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:23-cv-00367-RJC-DCK
JEREMY LAMOND HENDERSON,

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Plaintiff,
v.
CABARRUS COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.

ORDER

THIS MATTER is before the Court on Defendants’ Motions to Dismiss,
(Doc. Nos. 12, 13, 14, and 16); the Magistrate Judge’s Memorandum and
Recommendation (“M&R”), (Doc. No. 22), recommending that this Court grant
Defendant’s Rule 12(b)(6) Motion to Dismiss, (Doc. No. 12), and deny as moot
Defendants’ remaining Motions to Dismiss, (Doc. Nos. 13, 14, and 16); Plaintiff’s
Objection to the M&R, (Doc. No. 23); and Plaintiff’s Amended Objections to the
M&R, (Doc. Nos. 24, 25).
I.

BACKGROUND
No party has objected to the Magistrate Judge’s statement of the factual and

procedural background of this case. Therefore, the Court adopts the facts as set
forth in the M&R.
II.

STANDARD OF REVIEW
A district court may assign dispositive pretrial matters, including motions to

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dismiss, to a magistrate judge for “proposed findings of fact and recommendations.”
28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district
court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” Id.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). However, “when objections to strictly legal
issues are raised and no factual issues are challenged, de novo review of the record
may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). De
novo review is also not required “when a party makes general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Id. Similarly, when no objection is filed, “a district
court need not conduct a de novo review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (quoting Fed. R. Civ. P. 72, advisory committee note).
III.

DISCUSSION
Under Rule 72(b) of the Federal Rules of Civil Procedure, a district court

judge shall make a de novo determination of any portion of an M&R to which
specific written objection has been made. Here, Plaintiff, proceeding pro se, failed to
respond to Defendants’ motions to dismiss when they were before the Magistrate
Judge for disposition.1 Plaintiff’s “objections” now before the Court are Plaintiff’s

On May 9, 2024, the Magistrate Judge issued a Roseboro Order setting a response
deadline of May 24, 2024. (Doc. No. 18). The Roseboro Order was returned via
certified mail as undeliverable. (Doc. No. 22 at 3). As the M&R noted, subsequent
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first response in opposition to Defendants’ motions to dismiss. (Doc. Nos. 23, 24, 25).
Plaintiff claims that he has been delayed in responding to the motions to dismiss
“due to the willful and blatant retaliation experienced . . . on behalf of the defendant
for filing this civil action.” (Doc. No. 25 at 2). Plaintiff further claims that “[t]he
defendants have yet to cease and desist harassment of the plaintiff due to filing this
civil action.” (Id.).
The Court liberally construes the pro se filings in this case. See Haines v.
Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). “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, 127
S. Ct. 2197, 167 L. Ed. 2d 1081 (2007). However, while pro se litigants cannot “be
expected to frame legal issues with the clarity and precision ideally evident in the
work of those trained in law, neither can district courts be required to conjure up
and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775
F.2d 1274, 1276 (4th Cir. 1985).
Here, Plaintiff alleges that there is federal question jurisdiction over his
lawsuit, citing 18 U.S.C. §§ 241, 242. As the M&R concluded, “[t]hose statues are
criminal statutes, which do not provide a basis for this Court to exercise federal
question jurisdiction in a civil case.” (Doc. No. 22 at 4 (citing Monteith v. Shaia,
2017 WL 2273171, at *4 (W.D.N.C. May 5, 2017) (“[i]t is well established that there
is no private right of action to pursue claims under federal criminal statutes”)
court orders in this case have been issued, and there has been no docket entry
indicating that they were undeliverable. (Id.).
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(internal quotations and citations omitted))). The M&R further concluded that
because each of the individuals named in the Amended Complaint and the Cabarrus
County Sheriff’s Office have addresses in the Middle District of North Carolina,
“venue is almost certainly improper in this district.” (Id.). Accordingly, the
Magistrate Judge recommended dismissal of this case without prejudice to Plaintiff
refiling in the appropriate district under applicable law. (Id. at 5).
Plaintiff’s “objections” now before the Court fail to direct the Court to a
specific error in the Magistrate Judge’s proposed findings and recommendations.
Rather, Plaintiff argues that this case has “absolutely nothing to do with citizenship
or being a ‘Sovereign Citizen,’” that he properly served Defendants, that the Court
should strike “all of the redundant, slanderous, impertinent, and defamation of
character statements made by the defendants and their council,” that Defendants
willingly caused “financial harm, defamation of character, and slander,” that the
Cabarrus County Sheriff’s Office and many law enforcement agencies in North
Carolina have a history of civil rights violations lawsuits being filed against them,
and that Defendants have yet to “apologize, admit wrong or show remorse,” among
other things. (Doc. No. 25 at 2–4).
Nevertheless, having conducted a full review of the record, including
Plaintiff’s first response in opposition to Defendants’ motions to dismiss now before
the Court, the Court hereby finds that the recommendation of the Magistrate Judge
is, in all respects, in accordance with the law and should be approved. While the
Court is mindful of the latitude extended to the pleadings of pro se litigants, Haines

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v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), it cannot act as
the pro se plaintiff’s advocate or develop claims which the plaintiff failed to raise
clearly on the face of his complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir.
1978) (recognizing that district courts are not expected to assume the role of
advocate for the pro se plaintiff). Like plaintiffs who are represented by counsel,
a pro se plaintiff must still “allege facts sufficient to state all the elements of [a]
claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003). Similarly, a pro se plaintiff must still prove that subject-matter jurisdiction
exists. Accordingly, the Court ADOPTS the recommendation of the Magistrate
Judge as its own.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. The Magistrate Judge’s M&R, (Doc. No. 22), is ADOPTED;
2. Defendants’ “Rule 12(b)(6) Motion Of The Defendants To Dismiss,” (Doc.
No. 12), is GRANTED WITHOUT PREJUDICE to Plaintiff refiling
in the appropriate district under applicable law;
3. Defendants’ “Rule 12(b)(5) Motion Of The Defendants To Dismiss,” (Doc.
No. 13), is DENIED as moot;
4. Defendants’ “Rule 12(b)(3) Motion Of The Defendants To Dismiss,” (Doc.
No. 14), is DENIED as moot;
5. Defendants’ “Rule 12(f) Motion Of The Defendants To Dismiss,” (Doc. No.
16), is DENIED as moot;

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6. The Clerk is directed to close this case.

Signed: January 6, 2025

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