Opinion
4:23-CV-146-FL
04-03-2024
JEREMY GRAHAM, Plaintiff, v. WAYNE COUNTY SHERIFF'S DEPARTMENT, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court on the motion by plaintiff Jeremy Graham (“plaintiff” or “Graham”) to proceed in forma pauperis [D.E. 2] pursuant to 28 U.S.C. § 1915(a)(1). The motion was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) for a memorandum and recommendation, and for a frivolity review. The court finds that plaintiff has demonstrated appropriate evidence of his inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, based on the court's frivolity review and for the reasons stated below, the undersigned recommends that plaintiff's denial of access to courts claim ([D.E. 1] at 2) be DISMISSED WITHOUT PREJDUCE and all other claims in plaintiff's complaint [D.E. 1] be DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
ORDER ON IN FORMA PAUPERIS MOTION
The court issued a deficiency order on September 27, 2023 [D.E. 4], noting the following deficiencies in plaintiff's initial case filing: (i) the complaint is not signed and only contains an initial (see [D.E. 1]); (ii) the application to proceed without prepayment of fees does not have a full signature (see [D.E. 2]); and (iii) plaintiff has not provided a notice of self-representation. Plaintiff was directed to correct those deficiencies and to return the corrected documents, no later than October 11, 2023. He was warned that “[f]ailure to do so may result in the dismissal of this action without prejudice for failure to prosecute.” [D.E. 4] at 3. To date, plaintiff has not made any additional filings in this case and, therefore, has not cured the noted deficiencies.
The court notes that a copy of the deficiency order and the associated documents were mailed to plaintiff at 902 Welson Street, Kinston, NC 28501, the handwritten address appearing on the envelope [D.E. 1-3] that contained the complaint and other filed documents in this matter. However, these documents were returned to the court as undeliverable. See [D.E. 5]. In the civil cover sheet, plaintiff lists the separate action of Jeremy Graham v. Wayne County Sheriff's Department, 4:23-CV-100-D, as a “related case.” [D.E. 1-1] (plaintiff providing “4-23-cv-00100-D-RN” as the docket number in Section VIII of the Civil Cover Sheet as a “related case”). In the case of Graham, 4:23-CV-100-D, discussed further below, plaintiff's address is noted as 902 Nelson Street, Kinston, NC 28501. The undersigned, therefore, directs that the Clerk of Court mail a copy of this Memorandum and Recommendation to plaintiff at both addresses, as described below.
Although plaintiff does not appear to have received the deficiency order, and therefore has not corrected the deficiencies noted by the court, the undersigned will allow plaintiff's application to proceed in forma pauperis [D.E. 2] for the limited purpose of conducting a frivolity review. See Richardson v. NC Dep't of Health & Hum. Servs., No. 5:12-CV-00180-D, 2012 WL 4426303, at *1 (E.D. N.C. June 29, 2012), report and recommendation adopted, No. 5:12-CV-180-D, 2012 WL 4426059 (E.D. N.C. Sept. 24, 2012).
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). Based on the information in the motion to proceed in forma pauperis, the court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs. Plaintiff's motion to proceed in forma pauperis [D.E. 2] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S CLAIMS
On September 15, 2023, plaintiff, appearing pro se, filed a complaint alleging violations of his constitutional rights against the Wayne County Sheriff's Department (“WCSD”); A. D. Vickory, in his individual capacity; an SRO deputy Teal, in an individual capacity; Captain Beverly A. Deans, in her individual capacity (“Captain Deans”); and Deputy Aycock, in his individual capacity. Pl.'s Compl. [D.E. 1] at 1. Plaintiff alleges that the WCSD violated his Fifth and Fourteenth Amendment rights by barring him from entering a local courtroom to resolve a speeding ticket. Proposed Compl. Id. at 2. According to plaintiff, a WCSD officer would not allow him to come into the courtroom unless he waived his right to an attorney. Id. When plaintiff asked for a copy of the waiver form, an additional WCSD officer became upset. Id. The first officer called plaintiff a “boy” and threatened him with physical violence. Id. Plaintiff contends that he “was not allowed” to file charges against the threatening officer, because “[s]everal people wouldn't guide [plaintiff] to the proper people to file charges against this officer.” Id. Plaintiff seeks $3,000,000 in damages for the alleged violations of his rights and for the time he wasted coming to court.
II. PROCEDURAL BACKGROUND
In his earlier case (Graham, 4:23-CV-100-D), on June 15, 2023, plaintiff, appearing pro se, filed a complaint (Graham, 4:23-CV-100-D, [D.E. 1]) against the WCSD, as the sole defendant, for alleged violations of his constitutional rights arising out of the same set of facts described above. United States Magistrate Judge Robert T. Numbers, II, issued a memorandum and recommendation (“M&R”) regarding the claim, found that plaintiff did not “allege that the constitutional injury is attributable to an official policy, procedure, or custom of the [WCSD],” and recommended dismissal of plaintiff's claim without prejudice (Graham, 4:23-CV-100-D, [D.E. 6] at 4 (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978))).
Plaintiff filed an objection to the M&R specifying that he would be:
bringing a lawsuit against A. D. Vickory, a Magistrate for the [WCSD], in his individual capacity . . . Teal, a SRO deputy for [WCSD], in her individual capacity, . . . Matthew L. Delbridge, a District Attorney, in his individual capacity . . . Beverly A. Deans, Captain for [WCSD]. . ., in her individual Capacity, . . . Aycock, a Deputy for [WCSD], in his individual capacity, and the ENTIRE [WCSD], in its capacity.Graham, 4:23-CV-100-D, [D.E. 7].
On August 11, 2023, United States District Judge James C. Dever, III, issued an order overruling plaintiff's objection, adopting the conclusions of the M&R, and dismissing without prejudice plaintiff's complaint for failure to state a claim upon which relief can be granted. Graham, 4:23-CV-100-D, [D.E. 8] at 2. Specifically, this court found that plaintiff did not “otherwise dispute Judge Numbers's conclusion in the M&R that Graham failed to state a claim against the [WCSD].” Id.
The court provided that plaintiff could file an amended complaint no later than September 11, 2023. Id. On September 15, 2022, four days after the deadline provided by the court, plaintiff commenced the instant action by filing (i) an application to proceed without prepayment of fees [D.E. 2] and (ii) the proposed complaint [D.E. 1], referenced above. On September 20, 2023, this court closed plaintiff's case, Graham, 4:23-CV-100-D, finding that “[plaintiff had] not filed an 4 amended complaint as allowed in the order entered August 11, 2023.” Graham, 4:23-CV-100-D, [D.E. 9].
III. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must “‘state[ ] a plausible claim for relief' that ‘permit[s] the court to infer more than the mere possibility of misconduct' based upon ‘its judicial experience and common sense.'” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3).
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IV. ANALYSIS
A. Wayne County Sheriff's Department
The undersigned notes that plaintiff's complaint in Graham, 4:23-CV-100-D, was dismissed without prejudice in order to allow plaintiff to file an amended complaint. With the exception of minor grammatical and typographical variations, the facts in plaintiff's instant complaint are identical to those in his previous complaint. Cf. Pl.'s Complaint [D.E. 1] at 2 and Graham, 4:23-CV-100-D, [D.E. 1] at 2. Accordingly, while res judicata may not technically apply, the reasoning supporting dismissal of plaintiff's claims against the WCSD applies equally here. See Graham, 4:23-CV-100-D, [D.E. 6] at 4; [D.E. 8] at 2. Specifically, this court previously found that plaintiff failed to state a claim upon which relief can be granted based on a failure to allege any “constitutional injury is attributable to an official policy, procedure, or custom of the [WCSD]” (Graham, 4:23-CV-100-D, [D.E. 6] at 4). In the instant complaint ([D.E. 1] at 2), plaintiff has still not alleged any constitutional injury attributable to an official policy, procedure, or custom of the WCSD. Accordingly, the undersigned RECOMMENDS that plaintiff's claim against the WCSD be DISMISSED WITH PREJUDICE.
“A dismissal under Rule 12(b)(6) for failure to state a claim is typically considered a final judgment on the merits for purposes of res judicata . . . [unless] the prior action was expressly dismissed without prejudice.” Hegedus v. Nationstar Mortg. LLC, No. 5:17-CV-00053, 2018 WL 1465268, at *8 (W.D. Va. Feb. 1, 2018), report and recommendation adopted, No. 5:17-CV-00053, 2018 WL 1461747 (W.D. Va. Mar. 23, 2018) (emphasis added) (citations omitted).
B. Failure to assist in filing charge
As noted by this court previously (Graham, 4:23-CV-100-D, [D.E. 6] at 3), plaintiff claims ostensibly arise under 42 U.S.C. § 1983 for the deprivation of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States by any person acting under the color of state law. 42 U.S.C. § 1983.
With respect to the plaintiff's claim that “[s]everal people wouldn't guide [plaintiff] to the proper people to file charges against [an] officer for threatening” (Pl.'s Compl. [D.E. 1] at 2), plaintiff has not alleged any requirement under federal law or the constitution for any public servant to assist an individual in filing a charge under the circumstances described. Fed.R.Civ.P. 8(a)(2) (noting that a “pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”). Accordingly, while the alleged lack of helpfulness is not commendable, it does not thereby rise to the level of a federal claim. Accordingly, the undersigned RECOMMENDS that any claims related to a lack of affirmative assistance in plaintiff's filing of a charge be DISMISSED WITH PREJUDICE.
C. Supervisory liability
Plaintiff's complaint names four individual defendants: A. D. Vickory; SRO Deputy Teal; Captain Deans; and Deputy Aycock. Pl.'s Compl. [D.E. 1] at 1. However, plaintiff only alleges conduct by two unnamed officers in his complaint. Id. at 2. Accordingly, while it is not entirely clear based on the deficient pleading in plaintiff's complaint, it appears that plaintiff may be attempting to hold one or more individuals liable in their supervisory roles. However, a supervisor may not be held liable under § 1983 under the doctrine of respondeat superior. As this court has previously noted:
A supervisory official may not be held liable based upon a theory of respondeat superior, because respondeat superior generally is inapplicable in § 1983 suits. [citing Monell, 436 U.S. at 694]. To the extent plaintiff alleges a claim pursuant to supervisor liability, the United States Supreme Court recently addressed the theory of supervisor liability in the context of a § 1983 action. Iqbal, 556 U.S. at 677. In Iqbal, the Court held: “Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.” Id. at 676. Mere knowledge is not sufficient to establish personal participation. Id. Toppin v. Kornegay, No. 5:12-CT-3117-FL, 2014 WL 694850, at *5 (E.D. N.C. Feb. 21, 2014).
Accordingly, the undersigned RECOMMENDS that any claims in plaintiff's complaint based on a theory of respondeat superior be DISMISSED WITH PREJUDICE.
D. Denial of access to courts
Plaintiff appears to allege that unnamed officers from the WCSD prevented him from accessing a courtroom while he was seeking to resolve a speeding ticket. [D.E. 1] at 2. “A claim alleging a denial of access to courts is cognizable under § 1983.” Cruitt v. Alabama, 647 Fed.Appx. 909 (11th Cir. 2016). “The right of access to the courts is subsumed under the First Amendment right to petition the government for redress of grievances.” Shatford v. Los Angeles Cnty. Sheriff's Dep't, No. CV 15-1767 BRO (AJW), 2016 WL 1579379, at *17 (C.D. Cal. Mar. 29, 2016), report and recommendation adopted, No. CV 15-1767 BRO (AJW), 2016 WL 1573422 (C.D. Cal. Apr. 19, 2016). “The United States Supreme Court has applied the First Amendment to the states through the Fourteenth Amendment.” Elmore v. Herring, No. 5:13-CT-3107-FL, 2015 WL 5714888, at *5 (E.D. N.C. Sept. 29, 2015) (citing Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).
“To establish denial of access, a plaintiff must show that he suffered an actual injury because “official acts frustrated” his right to bring a “nonfrivolous” legal claim. Marks v. City of Wausau, 590 Fed.Appx. 634, 635 (7th Cir. 2015) (quoting Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002)); see also Shatford v. Los Angeles Cnty. Sheriff's Dep't, No. CV 15-1767 BRO (AJW), 2016 WL 1579379, at *17 (C.D. Cal. Mar. 29, 2016), report and recommendation adopted, No. CV 15-1767 BRO (AJW), 2016 WL 1573422 (C.D. Cal. Apr. 19, 2016) (dismissing a plaintiff's access to courts claim, where the plaintiff alleged that “he was wrongfully denied the opportunity to appear [at one traffic court session . . . but] was offered the opportunity to appear at a later date, and [the] citation was dismissed . . . irrespective of any failure to appear on his part.”)
Here, plaintiff's pleading is deficient in that he does not allege what injury he suffered as a result of his inability to access the traffic court, nor does he allege any specific conduct by any named defendant. Cf. Perry v. Revell, No. 5:11-CT-3132-F, 2013 WL 588736, at *2 (E.D. N.C. Feb. 13, 2013) (finding that the plaintiff failed to state a claim upon which relief could be granted where the plaintiff failed “to allege any specific conduct by any named defendant which could have caused the injury to his rights which he alleges.”); Christopher, 536 U.S. at 416 (“Like any other element of an access claim, the underlying cause of action and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice to a defendant.”).
Accordingly, plaintiff has failed to state a claim with respect to which relief can be granted on this claim as well. However, as plaintiff's access to courts claim, unlike his other claims, could potentially contain a cognizable cause of action if further developed, the undersigned RECOMMENDS that plaintiff's denial of access to courts claims against defendants in their individual capacities be DISMISSED WITHOUT PREJUDICE. For the avoidance of doubt, to be cognizable, plaintiff's claim would need to allege, inter alia, (i) the specific conduct committed by (ii) specific named defendants and (iii) the resulting injury to plaintiff based on a legal right that is protected by federal statutory or constitutional law. In addition, plaintiff would need to correct the deficiencies identified by this court in its deficiency order [DE-4], if he were to file an amended complaint with respect to any such claim.
For the reasons discussed above, the undersigned recommends that Plaintiff's claims against the Wayne County Sheriff's Department for denial of access to courts be dismissed with prejudice.
E. All other claims
To the extent that plaintiff was attempting to assert any further claims in his complaint [D.E. 1] besides those addressed above, the court does not discern any such claims, and the deficient pleading in plaintiff's complaint subjects any such claims to dismissal for failure to state a claim upon which relief may be granted. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. May 17, 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016). The undersigned finds plaintiff's statement of any other claims to be insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8 and RECOMMENDS that any such claims also be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
V. CONCLUSION
For the reasons set forth above, IT IS RECOMMENDED that plaintiff's denial of access to courts claim against defendants in their individual capacities ([D.E. 1] at 2) be DISMISSED WITHOUT PREJUDICE and all other claims in plaintiff's complaint [D.E. 1] be DISMISSED WITH PREJUDICE as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on plaintiff or, if represented, his counsel at the following addresses: (i) 902 Welson Street, Kinston, NC 28501; and (ii) 902 Nelson Street, Kinston, NC 28501. IT IS FURTHER DIRECTED that a copy of the court's deficiency order in this matter [DE-4] also be served on plaintiff or, if represented, his counsel at the following addresses: (i) 902 Welson Street, Kinston, NC 28501; and (ii) 902 Nelson Street, Kinston, NC 28501.
Plaintiff shall have until April 19, 2024, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If plaintiff does not file written objections to the Memorandum and Recommendation by the foregoing deadline, plaintiff will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).