Opinion
1:23CV264
04-13-2023
ALBERT MARQUAVIOUSLAMAR ANDERSON, Plaintiff, v. WINSTON-SALEM POLICE DEPT., et al, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld, United States Magistrate Judge
Plaintiff, a prisoner of the State of North Carolina, submitted a civil rights action pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis. The form of the Complaint is such that a serious flaw makes it impossible to further process the Complaint. The problem is:
1. Plaintiff's claims are confused and unclear in many respects. For instance, the Complaint bases some claims on alleged breaches of the North Carolina Constitution or various state or local laws and policies. However, claims under § 1983 must be based on allegations involving violations of the United States Constitution or federal statutes, not state or local law or policy. It also appears that Plaintiff seeks to hold a number of Defendants liable based on their positions as supervisors, but theories of respondeat superior or liability predicated solely on a defendant's identity as a supervisor do not exist under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). The Complaint additionally names as Defendants a building which is not a person and therefore not a proper Defendant under § 1983, a state court magistrate who is immune from suit, see Stump v. Sparkman, 435 U.S. 349 (1978), and Plaintiff's former public defender who is not a state actor who can be sued under § 1983, see Polk County v. Dodson, 454 U.S. 312, 324 (1981). It also names the Equal Employment Opportunity Commission even though the
lawsuit is in no way connected to Plaintiff's employment or to any employment issue. Further, most of Plaintiff's claims also appear to undermine his criminal convictions for speeding to elude arrest, possessing drug paraphernalia, and resisting an officer. He cannot raise such claims in a suit under § 1983 without first showing that such convictions were reversed on direct appeal, expunged by Executive Order, declared invalid by a state tribunal, or, finally, called into question by a federal court through the issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff makes no such showing and, in fact, the records of the North Carolina Department of Public Safety reflect that he is still incarcerated for those convictions. Finally, the Complaint frequently uses flowery language to state legal conclusions, but contains no basic facts supporting those conclusions. Plaintiff must make his claims clear, name proper Defendants, base his claims on allegations of intentional violations of his federal rights, provide the facts supporting each claim, and state in plain language how each Defendant allegedly violated his rights.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper forms, which corrects the defects of the present Complaint. To further aid Plaintiff, the Clerk is instructed to send Plaintiff new § 1983 forms, instructions, an application to proceed in forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)).
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS THEREFORE ORDERED that In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to send Plaintiff § 1983 forms, instructions, an application to proceed In forma pauperis, and a copy of pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)).
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper 42 U.S.C. § 1983 forms, which corrects the defects cited above.