Opinion
4:22-CV-145-D
01-12-2023
TIMOTHY BEST, Plaintiff, v. TOWN OF AYDEN and AYDEN POLICE DEPARTMENT, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on pro se Plaintiff Timothy Best's application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1], 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 for failure to state a claim.
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 Plaintiff's 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 Corr, 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). The 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).
II. DISCUSSION
Timothy Best, a resident of Winterville, North Carolina, brings this action against the Town of Ayden, North Carolina and the Ayden Police Department for racial profiling and harassment in violation of the Fourteenth Amendment to the United States Constitution and Title VII of the Civil Rights Act of 1964, as well as asserting claims for slander and libel. Compl. [DE-1-1], Best alleges that he has been constantly racially profiled and harassed by Defendants since March 12, 2021, when an Ayden Police Officer followed Best to the Aden Fire Department where he was receiving medical treatment and charged him with DWI. Id. at 2. Two months later, a different Ayden Police Officer followed Best to his friend's house and gave Best a speeding ticket while he was in the yard. Id. Best alleges the officer falsely claimed Best was driving 45 mph in a 35 mph zone, and it would have been impossible for Best to turn into the yard going 45 mph because he would have run into a ditch adjacent to the driveway. Id. Best claims things became so bad that he moved to Goldsboro, North Carolina. Id. However, Best was encountered by an Ayden Police Officer again on October 23, 2022, when he pulled over in Ayden in “the white folks part of town” on his way to Goldsboro. Id. at 3. Best was returning from trip to New York and pulled over to sleep for an hour after driving for twelve hours. Id. Best alleges that he was on the side of the road not bothering anyone, and Officer Stangland racially profiled and harassed him because he was black. Id. at 3-4. Best claims Defendants slandered and libeled him by claiming he was unconscious rather than asleep and by claiming Best refused to take a breath test, which is contradicted by the intoxilyzer test documentation. Id. at 4, 7.
Best also claims that Defendants have a history of not monitoring the “Caucasian sections” in Ayden and of targeting African American areas and businesses, including removing basketball goals from parks used by African Americans but leaving the basketball goals in parks used by Caucasians. Id. Best alleges the racial profiling and harassment of African Americans has occurred since at least the 1990s and possibly since the 1960s. Id. Best concludes that he cannot be sure but he believes that he was harassed, racially profiled, and discriminated against by another Caucasian Ayden Police Officer. Id. at 5. Best seeks monetary, including punitive, damages and an injunction to restrain criminal prosecution of the October 23, 2022 DWI charge. Id. at 3, 6.
Having reviewed and liberally construed the allegations of the complaint, Best has failed to state a plausible claim under Title VII or an Equal Protection violation.
Title VII prohibits an employer from “discharg[ing] any individual, or otherwise . . . discimin[ating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . .” 42 U.S.C.A § 2000e-2(a). Defendants are not Best's employer. See Barnwell v. Foot Locker, Inc., No. 5:16-CV-694-BO, 2018 WL 2422316, at *2 (E.D. N.C. May 29, 2018) (“Parties may pursue claims of discrimination under Title VII against their employers alone . . . .”). Accordingly, Best has failed to state a Title VII claim against Defendants.
Best's claim that he was harassed and racially profiled in violation of the Fourteenth Amendment is construed as an Equal Protection claim brought under 42 U.S.C. § 1983. Section 1983 imposes liability on anyone who, under the color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. However, § 1983 is not a “source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (citations omitted). Thus, to state a cause of action under § 1983, a plaintiff must allege facts indicating a deprivation of rights guaranteed by the Constitution or laws of the United States and that this deprivation resulted from conduct committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 49-50 (1988).
The Equal Protection Clause provides that “[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). A plaintiff must set forth “specific, non-conclusory factual allegations that establish improper motive.” Williams v. Hansen, 326 F.3d 569, 584 (4th Cir. 2003) (quoting Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001)) (internal quotations omitted). The Equal Protection Clause “prohibits police officers from selectively enforcing laws based on race.” Ogunsula v. Maryland State Police, No. CV ELH-20-2568, 2021 WL 6105503, at *29 (D. Md. Dec. 23, 2021) (quoting Johnson v. Holmes, 782 Fed.Appx. 269, 276-77 (4th Cir. 2019) (citing Whren v. United States, 517 U.S. 806, 813 (1996))), reconsideration denied, No. CV ELH-20-2568,2022 WL 3290713 (D. Md. Aug. 11, 2022). “To prevail on a selective enforcement claim,” the plaintiff must establish that she was subjected to conduct that “(1) was motivated by a discriminatory intent; and (2) had a discriminatory effect.” Johnson, 782 Fed.Appx. at 277 (citing United States v. Armstrong, 517 U.S. 456, 465 (1996) and Cent. Radio Co. v. Cnty. of Norfolk, 811 F.3d 625, 634-35 (4th Cir. 2016)).
The allegations of Best's complaint lack evidence of improper motive. Best alleges that on three occasions he was encountered by law enforcement and cited twice for DWI and once for speeding. On the first occasion, Best was followed by an officer into a fire station where Best was receiving medical treatment and cited for DWI. Best was next given a speeding ticket but claims it was impossible that he was speeding. Finally, Best was sleeping in his car on the side of the road when approached by an officer, and he was ultimately charged with DWI. The court cannot infer from these allegations that the officers racially profiled Best and charged him based on discriminatory intent. See Ogunsula, 2021 WL 6105503, at *31 (dismissing Equal Protection claim based on racial profiling and selective enforcement where the complaint was devoid of facts showing the officer said or did anything during his encounter with plaintiff that would indicate his actions were predicated on plaintiff's race or motivated by discriminatory animus); Harris v. Unit Manager Avcook, No. 5:15-CT-3261-D, 2016 WL 2931630, at *3 (E.D. N.C. Apr. 11, 2016) (finding failure to set forth “specific, non-conclusory factual allegations” that establish an improper motive warranted dismissal of equal protection claim on frivolity review), report and recommendation adopted sub nom. Harris v. Avcook, 2016 WL 2917412 (E.D. N.C. May 18,2016). The alleged history of racial profiling and harassment of African Americans by Defendants chronicled in the complaint does not change the result because it is too generalized. See Ogunsula, 2021 WL 6105503, at *31 (noting, in dismissing equal protection claim, that plaintiff failed to allege any facts regarding the history of traffic stops, whether racially targeted or otherwise, for the particular officer that pulled her over). Accordingly, Best has failed to state an Equal Protection claim for racial profiling and harassment.
Best also claims Defendants slandered and libeled him by claiming he was unconscious rather than asleep and by claiming Best refused to take a breath test, which is contradicted by the intoxilyzer test documentation. Slander and libel are state law claims. See Vander Linden v. Wilbanks, 128 F.Supp.2d 900, 904 (D.S.C. 2000) (“The Fourth Circuit has found that libel and slander claims are state law claims and, absent diversity jurisdiction, should be heard by state courts.”) (citing Wells v. Liddy, 186 F.3d 505, 518 n. 10 (4th Cir. 1999); R.H. Bouligny, Inc. v. United Steelworkers of Am., 336 F.2d 160, 165 (4th Cir. 1964)). Best and Defendants are both residents of North Carolina, so there is no diversity jurisdiction under 28 U.S.C. § 1332(a)(1). See Pinkley Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (plaintiff is required to affirmatively allege facts demonstrating the court's jurisdiction in the complaint). The court should decline to exercise jurisdiction over the state law claims where Best has failed to state a federal claim. 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm'rs of Calvert Cnty, 401 F.3d 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106,110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,350 (1988)). Accordingly, it is recommended that the slander and libel claims be dismissed.
Finally, Best seeks an injunction to restrain criminal prosecution of the October 23, 2022 DWI charge. The court should abstain, pursuant to Younger v. Harris, 401 U.S. 37 (1971), from interfering in a pending state court criminal proceeding. Younger abstention requires a federal court to abstain if there is “(1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th Cir. 2008). “Younger is not merely a principle of abstention; rather, the case sets forth a mandatory rule of equitable restraint, requiring the dismissal of a federal action that seeks to enjoin an ongoing prosecution in a state criminal proceeding.” Nivens v. Gilchrist, 444 F.3d 237, 247 (4th Cir. 2006) (quoting Juluke v. Hodel, 811 F.2d 1553, 1556 (D.C. Cir. 1987). “Younger abstention is limited by certain narrowly tailored exceptions. When a state action is continued in bad faith, when it constitutes harassment, or when it could result in irreparable injury without federal intervention, abstention is inappropriate.” Berry v. S.C. Dep't of Soc. Servs., 121 F.3d 697 (4th Cir. 1997).
Here, based on the allegations of the complaint, it appears Best was arrested and charged with DWI on October 23,2022, prior to the filing of this action, so the first requirement for Younger abstention is satisfied. A criminal proceeding will “always satisfy [the second Younger] element, as they serve as a state's tool to prevent violations of its criminal laws and maintain the efficient operation of its criminal justice system.” Mcsheffrey v. Wilder, No. 2:21 CV630,2022 WL 2806720, at *3 (E.D. Va. July 18, 2022) (citing Nivens v. Gilchrist, 319 F.3d 151, 154 (4th Cir. 2003)). Therefore, the second Younger requirement is met. Lastly, there is nothing in the complaint from which the court could conclude that Best will not have an adequate opportunity to raise his constitutional claim in his state court criminal prosecution or on appeal, so the third requirement for Younger abstention is satisfied. Id. As for the exceptions, Best alleges a laundry list of legal theories to support an exception, including inadequate protection of his constitutional rights, orderly administration of justice, prejudicial question that is sub judice, the officers acted without or in excess of their authority, prosecution under an inval id law, persecution rather than prosecution, and charges are manifestly false and motivated by a lust for vengeance. However, the complaint contains insufficient allegations to support application of an exception based on Best's conclusory theories. See Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level” and the complaint must allege more than labels and conclusions). Accordingly, the court should dismiss Best's claim seeking to enjoin the state from prosecuting his October 23, 2022 DWI charge. See Nivens, 444 F.3d at 246 (“Younger ‘contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts.'”) (quoting Gibson v. Berryhill, 411 U.S. 564, 577 (1973)); see also Gould v. Bertie Cnty., No. 5:14-CT-3066-FL, 2015 WL 11090417, at *3 (E.D. N.C. Jan. 13, 2015) (dismissing challenge to pending state criminal charges) (citing Younger), aff'd, 604 Fed.Appx. 284 (4th Cir. 2015); Davenport v. Keith, No. 2:14-CV-36-D, 2014 WL 5790970, at *1 (E.D. N.C. Nov. 6, 2014) (abstaining from exercising jurisdiction over a plaintiff's claims against defendants concerning his ongoing state criminal case and granting motion to dismiss); Ambrose v. Hunt, No. CIV. 1:97CV276-T, 1997 WL 34673049, at *3 (W.D. N.C. Dec. 2, 1997) (declining under Younger to enjoin further prosecution of plaintiffs in state court criminal proceedings).
III. CONCLUSION
For the reasons stated above, Plaintiff's application to proceed in forma pauperis is allowed, and it is recommended that the complaint be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until January 26, 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 will 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).
So ordered