Opinion
5:23-CV-131-FL
04-06-2023
DERRICK ALLEN, Plaintiff, v. Person County, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B Jones, Jr., United States Magistrate Judge
This matter is before the court on Plaintiffs application to proceed in forma pauperis, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “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)). “Factual allegations must be enough to raise a right to relief above the speculative level . . .” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). As part of its review, the court may consider whether it has subject matter jurisdiction of the case. 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”).
II. DISCUSSION
Plaintiff contends that the court has jurisdiction pursuant to Title 42 U.S.C. § 1983. [DE-1] at 2. Plaintiff also lists the cause of action is based on violations of the 4th, 8th, and 14th Amendments to the U.S. Constitution on the civil cover sheet. [DE-1-1], Plaintiffs allegations are as follows. Plaintiff was pulled over by law enforcement in different counties over a three-day period, stemming from an initial traffic stop, which constituted a “subtle form of harassment.” On March 8, 2023, Trooper L.A. Coats pulled Plaintiff for allegedly speeding, and during the traffic stop Coats appeared to be “confrontational, oppositional, and manipulative.” At the conclusion of the traffic stop, Plaintiff states he had to call 911, that Coats “would not give back my driver[']s license or registration” until some time later, and that Coats was “looking for trouble.” Durham Sheriffs Department deputies were present, and observed Plaintiffs being issued a citation (# 2786H50). Person County Sheriff s Deputy W. Woody followed Plaintiff “for no apparent reason” when Plaintiff “stopped and changed [Plaintiffs] direction of travel to avoid Deputy Woody.” Plaintiff changed direction a second time and was followed by Woody, and Plaintiff pulled over and parked his car. Woody “pulled me and gave yet another citation, but this was a warning,” (citation # W986079). On March 9 or 10, 2023, Plaintiff was pulled over by the Durham Sheriff for “no legitimate reason.” Plaintiff requested to speak to Governor Cooper by submitting a scheduling request and was pulled over by Trooper Coats. Plaintiff seeks compensation in the amount of $250,000.00. [DE-1 ] at 2-3.
Plaintiff indicates on his civil cover sheet that his demand is $750,000.00. [DE-1 -1 ] at 1.
Plaintiff has filed numerous pro se lawsuits in this district, see 5:20-CV-144-BO; 5:21-CV-293-BO; 5:22-CV-179-BO; 5:22-CV-207-FL; 5:22-CV-224-BO; 5:22-CV-301-D; 5:22-CV-322-BO; 5:22-CV-00368-FL; 5:22-CV-423-M-KS; and 5:22-CV-452, and as well as in other districts, and has been referred to as a “prolific pro se litigator,” Allen v. Correct Care Sols., No. 1:21-CV-146, 2021 WL 954624, at *1 (M.D. N.C. Mar. 4, 2021), report and recommendation adopted sub nom. 2021 WL 949633 (M.D. N.C. Mar. 12, 2021), aff'd, 853 Fed.Appx. 858 (4th Cir. 2021), and a “serial filer who has taken undue advantage of IFP status,” Allen v. Birkhead, No. 1:21-CV-551, 2022 WL 16949733, at *1, 5 (M.D. N.C. Nov. 15, 2022) (ruling that “[b]ecause Plaintiff repeatedly has commenced meritless civil actions in this Court as a pauper (undeterred by clear instructions to cease his abusive litigation activities and the consequences of his failure to do so), the Court will deny the instant Applications.”).
Taking the well-pleaded allegations as true and liberally construing the complaint, Plaintiff has failed to state a claim.
Civil damages claims for violations of federal constitutional rights are brought pursuant to Section 1983 of Title 42 of the United States Code. Section 1983 provides a private right of action where a person acting under the color of state law deprives an individual of a federally protected right. See 42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege that he was “deprived ... of a federal right” by some person “act[ing] under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, “no matter how discriminatory or wrongful,” is not actionable under § 1983 or the Fourteenth Amendment. Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). State action requires proof that the alleged constitutional deprivation was (1) “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State” and (2) that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). The Supreme Court has specifically held that neither states nor state officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see Snow v. N.C. Dep't Health & Human Servs., No. 5:12-CV-724-FL, 2014 WL 808646, at *5 (E.D. N.C. Feb. 28, 2014).
A. Defendants N.C. Highway Patrol and Trooper L.A. Coats
Defendants N.C. Highway Patrol and Trooper L.A. Coats are entitled to sovereign immunity, and alternatively, Plaintiff fails to allege sufficient facts under Iqbal and Twombly standards.
The Eleventh Amendment provides that “ [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. “Under the Eleventh Amendment, . . . neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent.” Gamache v. Cavanaugh, 82 F.3d 410, 1996 WL 174623, at *1 (4th Cir. 1996) (unpublished table decision); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995). Such immunity “extends as well to state agencies and other government entities properly characterized as ‘arms[s] of the State.'” Gray, 51 F.3d at 430 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); then citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)); see Snow, 2014 WL 808646, at *5 (“The Supreme Court has specifically held the Eleventh Amendment to preclude claims against a State and its instrumentalities brought pursuant to 42 U.SC. § 1983.”) (citing Will, 491 U.S. at 71); Teague v. N.C. Dep't of Transp., No. 5:07-CV-45-F, 2007 WL 2898707, at *2 (E.D. N.C. Sept. 28, 2007) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)). In Quern v. Jordan, 440 U.S. 332 (1979), the Court held that 42 U.S.C. § 1983 did not abrogate a state's Eleventh Amendment immunity. Id. at 337-45 (reaching this conclusion by analyzing the plain language and legislative history of § 1983).
For any official capacity claim Defendant Trooper L.A. Coats is a state official as a N.C. State Trooper, and is not a “person” under Section 1983. An official-capacity claim in a § 1983 action is a claim against the governmental entity of which the official is an agent. Wyche v. City of Franklinton, 837 F.Supp. 137, 144 (E.D. N.C. 1993) (“A suit against a city official in his official capacity is a suit against the city itself”) (citing Hughes v. Blankenship, 672 F.2d 403, 406 (4th Cir. 1982)). As such, officials sued in their official capacity are immune from suit for monetary damages under the Eleventh Amendment because they are not considered “persons” under § 1983. Will, 491 U.S. at 71 (1989); see also Ballenger v. Owens, 352 F.3d 842, 843 (4th Cir. 2003) (dismissing claims against South Carolina state trooper to the extent those claims were brought against trooper in his official capacity); Wyche, 837 F.Supp. at 144 (stating §1983 claims against city police officer were subsumed by the claims against the city). Furthermore, N.C. Highway Patrol is also not a “person” under Section 1983, and is likewise immune. See Oliver v. Baity, 208 F.Supp.3d 681 (M.D. N.C. 2016) (ruling that the state highway patrol, as state agency, was not a “person” within the meaning of § 1983, and thus could not be held liable for alleged constitutional violations).
Alternatively, Plaintiff fails to allege sufficient facts showing that state Defendants deprived him of any rights under the constitution. Plaintiff simply alleges that Trooper Coats pulled over Plaintiff for allegedly speeding, appeared confrontational, took some time to return Plaintiffs driver's license and registration, and ultimately issued Plaintiff a citation. [DE-1] at 2. Plaintiff describes no other conduct by Trooper Coats or the Highway Patrol. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). This is necessary “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]'” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). At the pleading stage, “while a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Id. (internal citations and quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level. . ..” Id.
Accordingly, Plaintiffs claims for monetary damages against the state Defendants are barred by Eleventh Amendment immunity, and regardless, Plaintiff fails to allege sufficient facts to state a claim under Iqbal and Twombly standards, and thus it is recommended that these claims be dismissed.
B. County and Municipal Defendants
Plaintiff names as Defendants Person County; Durham County; Elaine O'Neal, Mayor of Durham; Merilyn Newell, Mayor; and W. Woody, Officer. [DE-1] at 1. According to Plaintiff, a Google search indicates a Merilyn Newell is the Mayor of Roxboro, NC, and Plaintiffs allegations indicate that Woody is employed by the Person County Sheriffs Department, [DE-1] at 2-3. Plaintiff also names other defendants but does not identify them. Google searches indicate they are city or county employees: a Wanda Page is the City of Durham City Manager, a Diana Schreiber is the City of Durham City Clerk, a Kimberly J. Sowell is the Durham County Manager, a Brooks Lockhart is the City of Roxboro City Manager, and a Katherine Cathey is the Person County Manager.
A county or municipality may be found liable under 42 U.S.C. § 1983 only “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); see Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003). Therefore, a county or municipality may not be found liable under section 1983 based on a theory of respondeat superior or simply for employing a tortfeasor. See, e.g, Connick v. Thompson, 563 U.S. 51, 60-64 (2011); Bd. of Cty. Comm 'rs v. Brown, 520 U.S. 397, 403-04 (1997).
To establish municipal liability under § 1983, plaintiff must show “the constitutionally offensive acts of [the municipal employee was] taken in furtherance of some municipal ‘policy or custom.'” Milligan v. City of Newport News, 143 F.2d 227, 229 (4th Cir. 1984) (quoting Monell, 436 U.S. at 694). The existence of such a policy or custom can be established in one of four ways: “(1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission [on the part of policymaking officials], such as a failure to properly train officers, that ‘manifest[s] deliberate indifference to the rights of citizens'; or (4) through a practice that is so ‘persistent and widespread' as to constitute a ‘custom or usage with the force of law.'” Lytle, 326 F.3d at 471 (4th Cir. 2003) (quoting Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)). Plaintiff fails to allege any facts establishing any county or municipal defendant or their policymakers were responsible for any constitutional deprivations under the foregoing standard. See Brown, 520 U.S. at 403-04; Carter, 164 F.3d at 218.
Further, even if Plaintiff names any of these local government Defendants in their individual capacities, Plaintiff fails to state a claim. Plaintiff simply alleges that he was pulled over and issued a traffic citation by an N.C. State Trooper and that a member of the Durham Sheriffs Department was present. [DE-1] at 2. Plaintiff alleges that W. Woody with the Person County Sheriffs Department subsequently followed him for no reason and ultimately pulled Plaintiff over and issued a warning citation. Id. at 3. Finally, Plaintiff alleges he was pulled over by a member of the Durham Sheriffs Department for “no legitimate reason.” Plaintiff provides no other factual support, and Plaintiff fails to describe with any particularity how these defendants violated any laws or rights. Plaintiff describes no conduct of any kind on behalf of Defendants Elaine O'Neal, Wanda Page, Diana Schreiber, Kimberly J. Sowell, Merilyn Newell, Brooks Lockhart, Katherine Cathey. This does not meet the pleading standards under Iqbal and Twombly. See Fed.R.Civ.P. 8(a)(2); Twombly, 550 U.S. at 555; Iqbal, 556 U.S. 662, 678. Nothing in Plaintiffs filings could be construed to state a cognizable claim against these local government Defendants.
Accordingly, it is recommended that any claims against county or municipal Defendants be dismissed.
III. CONCLUSION
For the reasons stated above, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiffs claims against Defendants be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until April 20, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or 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 you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you 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, your failure to file written objections by the foregoing deadline may bar you 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).