Patterson v. North Carolina, State of et al

Filing 5

ORDER granting Motion to Proceed IFP for the limited purpose of this initial review. The Court dismisses plf's claim as to dfts State of NC and Carie Nitzu. The Complaint survives initial review as to dft Thompson. Cler k is directed to mail summons form to plf to be filled with current info as to dft Thompson (current position, place of employment, and address). Once Court receives summons from plf, Court will direct USM to serve dft. Signed by Chief Judge Robert J. Conrad, Jr on 1/16/2013. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:12-cv-182-RJC
DARON ALLEN PATTERSON,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF NORTH CAROLINA,
)
CARRIE NITZU, THOMAS W.
)
THOMPSON,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, (Doc. No.
1), and on Plaintiff’s Motion to Proceed in Forma Pauperis, (Doc. No. 1-1). Having conducted an
initial review of the Complaint as required by 28 U.S.C. § 1915, the Court will grant Plaintiff’s
Motion to Proceed in Forma Pauperis.
I.

FACTS
On November 19, 2012, pro se Plaintiff DaRon Allen Patterson, a state court inmate

currently incarcerated at Albemarle Correctional Institution in Badin, North Carolina, filed the
instant Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has named as Defendants the State of
North Carolina, Iredell County Assistant District Attorney Carrie Nitzu, and Morrisville Police
Department Captain Thomas W. Thompson. Specifically, Plaintiff alleges in the Complaint:
On October 5, 2010, Captain Thomas Thompson of the Mooresville, NC Police
Department arrived at my dwelling with the intent to question me on the charge of
felony stalking. Upon arriving at the dwelling that I shared with my female
companion, and while being cooperative with what was asked of us, Capt. Thompson
proceeded to search the property (house and vehicle) without the expressed consent
of both my female counterpart or myself. In my belief, the need for evidence on the
part of the police department was not as important as substantiating my inalienable
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rights to life, liberty and property. The purpose actively for the search was to justify
a statement provided to the police department by Frances Katsoudas of Mooresville,
NC, respectively concerning firing multiple shots into her dwelling. Not only were
her accusations without merit, Capt. Thompson was also unable to find a weapon to
justify her claim. After illegally searching my property, I was still arrested without
knowledge of the alleged charges I was being detained for. It wasn’t until I had
reached the police station did the magistrate provide me with knowledge of what I
was actively being charged with. On October 6, 2010, the Mooresville Police
Department issued a warrant for my arrest on the allegation that I possessed a
firearm as a felon, evidence of which has still not been located.
(Doc. No. 1 at 3). As relief, Plaintiff states, “The plaintiff is seeking to correct the error by
maintaining that his property was illegally searched and he was unable to get the full ‘due process
of law.’ He is seeking to be compensated by the State of North Carolina and officers of Iredell
County for mental and emotional damages on the basis of violating key constitutional rights
appropriated to all United States citizens.” (Id. at 4-5). Although Plaintiff does not articulate the
specific alleged constitutional violation by Defendants, his allegations indicate that he is bringing
a claim for an unlawful search in violation of the Fourth Amendment.
The Court first addresses Plaintiff’s Motion to Proceed in Forma Pauperis. In support of the
motion, Plaintiff has submitted his inmate trust account statement, which shows that as of November
13, 2012, Plaintiff had a balance of $0.00 in his account. See (Doc. No. 1-1 at 8). Because Plaintiff
lacks sufficient funds with which to pay the filing fee, the Court will grant Plaintiff’s Motion to
Proceed in Forma Pauperis.
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to

determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or] fails
to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A
requires an initial review of a “complaint in a civil action in which a prisoner seeks redress from a
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governmental entity or officer or employee of a governmental entity,” and the court must identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief.
In its frivolity review, this 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). Furthermore,
a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
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).
III.

DISCUSSION
A.

Defendant State of North Carolina

The Court first finds that Defendant State of North Carolina enjoys Eleventh Amendment
sovereign immunity as to Plaintiff’s claim for money damages.1 See Savage v. N.C. Dep’t of Corr.,
No. 5:06-cv-171-FL, 2007 WL 2904182, at *5 (E.D.N.C. Sept. 29, 2007) (for Eleventh Amendment
purposes, the [North Carolina Department of Correction] is considered an arm of the State of North
Carolina and, therefore, immune from suit for monetary damages under § 1983). Because Plaintiff
seeks only money damages and not injunctive relief, the Court will dismiss the State of North
Carolina as a defendant.

1

As of January 1, 2012, the North Carolina Department of Correction was consolidated
into the North Carolina Department of Public Safety as the Division of Adult Correction. See
N.C. GEN . STAT . § 143B-701 (2011).
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B.

Defendant Assistant District Attorney

Next, at all relevant times, Defendant Nitzu was an Iredell County Assistant District
Attorney. In Imbler v. Pachtman, the Supreme Court held “that in initiating a prosecution and in
presenting the States’s case, the prosecutor is immune from a civil suit for damages under § 1983.”
424 U.S. 409, 430 (1976).

The Imbler Court explained that “prosecutors should be afforded

absolute immunity when their ‘activities were intimately associated with the judicial phase of the
criminal process.’” Nivens v. Gilchrist, 444 F.3d 237, 250 (4th Cir. 2006) (quoting Imbler, 424 U.S.
at 430).
Other than naming Defendant Assistant District Attorney Nitzu in the caption of the
Complaint, Plaintiff does not present any factual allegations against Defendant Nitzu. This Court
takes judicial notice that, according to Plaintiff’s criminal records on Westlaw, on October 5, 2010,
the date of the alleged illegal search, Plaintiff was charged in Iredell County of Discharge of a
Weapon into a Dwelling, Injury to Personal Property, and Possession of Firearm by a Felon.
Furthermore, the North Carolina Department of Public Safety web site indicates that on July 18,
2012, Plaintiff was convicted of stalking and was sentenced to two years imprisonment.
Presumably, Defendant Nitzu was the prosecutor who filed the criminal charges against Plaintiff.
Plaintiff does not allege in the Complaint that Defendant Nitzu was acting outside the scope of her
traditional duties as a prosecutor. Indeed, Plaintiff’s allegations simply fail to raise any question but
that Nitzu was acting within the realm of her “traditional prosecutorial duties.” Nivens, 444 F.3d
at 250. In sum, Defendant Nitzu is entitled to absolute prosecutorial immunity and will be dismissed
from this lawsuit.
C.

Morrisville Police Department Captain Thomas W. Thompson
Finally, as to the remaining Defendant Morrisville Police Department Captain Thomas W.
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Thompson, Plaintiff alleges that Defendant Thompson “arrived at my dwelling with the intent to
question me on the charge of felony stalking. Upon arriving at the dwelling that I shared with my
female companion, and while being cooperative with what was asked of us, Capt. proceeded to
search the property (house and vehicle) without the expressed consent of both my female counterpart
or myself.” (Doc. No. 1 at 3). Plaintiff further alleges that the “purpose . . . for the search was to
justify a statement provided to the police department by Frances Katsoudas of Mooresville, NC,
respectively concerning firing multiple shots into her dwelling.” (Id. at 4). Finally, Plaintiff alleges
that the accusations by Katsoudas were “without merit” and Defendant Thompson “was unable to
find a weapon to justify [Katsoudas’] claim.” (Id.).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST . amend. IV.
It has been construed to mean that “[a]bsent exigent circumstances, [the] threshold [of one’s house]
may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590 (1980).
Generally, a warrant is required to conduct a search of a person’s home, but a warrantless search
may be conducted when “‘the exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”
Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (quoting McDonald v. United States, 335 U.S. 451,
456 (1948)).
Any warrantless search permitted by the exigent circumstances exception must be “strictly
circumscribed” by the exigency that justifies the exception, and the search may not be expanded
beyond what is necessary to allay the exigency without further justification. See id. at 393. Courts
recognize the existence of exigent circumstances to justify a warrantless search in several situations,
including: to prevent the destruction of evidence, to ensure the safety of law enforcement officers
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or the general public, when police are in “hot pursuit” of a fleeing suspect, or when other emergency
circumstances exist, such as the need to assist injured individuals. See United States v. Thompson,
No. 2:09-cr-64, 2012 WL 2375541, at *4 (S.D. W. Va. June 22, 2012) (citing cases). The Fourth
Circuit has stated that the exigent circumstances exception to the warrant requirement “basically
encompasses officer safety and the destruction of easily-disposed evidence.” Gould v. Davis, 165
F.3d 265, 270-71 (4th Cir. 1998).
To successfully invoke the exigent circumstances doctrine, law enforcement officers need
only possess a “reasonable suspicion” that such circumstances exist at the time of the search or
seizure. United States v. Grogins, 163 F.3d 795, 797 (4th Cir. 1998). “Exigent circumstances render
permissible a warrantless search or seizure, even when there is no probable cause to believe that a
crime has been committed.” Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (citing Michigan
v. Tyler, 436 U.S. 499, 509 (1978)).
Plaintiff’s Fourth Amendment claim against Defendant Thompson survives initial review.
That is, Plaintiff alleges that Defendant Thompson searched Plaintiff’s house without a warrant and
without Plaintiff’s consent, and it is premature to rule on the issue of whether exigent circumstances
existed. In sum, Plaintiff has alleged enough facts to state a Fourth Amendment claim against
Defendant Thompson, and this action will therefore survive initial review as to him.2

2

Plaintiff’s Fourth Amendment claim may be barred by the principles announced
in Heck v. Humphrey, 512 U.S. 477, 486 (1994). In Heck, the U.S. Supreme Court held
that “when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” From the face of the Complaint, the Court cannot discern whether this
action is Heck-barred. Therefore, the Court will allow the Complaint to survive initial review
as to Heck issue as well.
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IV.

CONCLUSION
Having conducted a preliminary review of the Complaint in accordance with 28 U.S.C. §

1915(e)(2), the Court finds that Defendant Nitzu enjoys prosecutorial immunity and the State of
North Carolina enjoys Eleventh Amendment immunity. Plaintiff’s Complaint survives initial review
as to Defendant Thompson.
IT IS, THEREFORE, ORDERED that:
(1)

Plaintiff’s Motion to Proceed in Forma Pauperis, (Doc. No. 1-1), is GRANTED for
the limited purpose of this initial review.

(2)

The Court dismisses Plaintiff’s claim as to Defendants State of North Carolina and
Carrie Nitzu. The Complaint survives initial review as to Defendant Thompson.

(3)

The Clerk is directed to mail a summons form to Plaintiff for Plaintiff to fill out and
identify Defendant Thompson in the summons for service of process, and then return
the summons to the Court. Plaintiff is required to provide the necessary information
for the U.S. Marshal to effectuate service. That is, in filling out the summons form,
Plaintiff must attempt to identify Defendant Thompson’s current position, place of
employment, and address. If Defendant Thompson does not waive service at his
home address, his current place of employment shall furnish Defendant’s home
address to the U.S. Marshal. The summons and executed summons that will be
served on Plaintiff after service is effectuated shall be redacted so that Defendant’s
home address is not included. Once the Court receives the summonses from
Plaintiff, the Court will then direct the U.S. Marshal to effectuate service upon
Defendant.

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Signed: January 16, 2013

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