Opinion
1:23CV88
02-03-2023
MICHAEL LEE HARRIS, Plaintiff, v. THE STATE BUREAU OF INVESTIGATION et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
Plaintiff, a prisoner of the State of North Carolina serving a sentence of 32 to 39 years and two months, for crimes including first-degree rape (Docket Entry 3 at 1), submitted a pro se complaint under 42 U.S.C. § 1983 and requests permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Plaintiff names the State Bureau of Investigation (SBI), its director, and one of its forensic biologists as Defendants. Plaintiff alleges that the SBI failed to conduct DNA testing related to Inis tape case. Plaintiff seeks $3 million in damages and lais release from custody.
Because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity,” this Court has an obligation to “review” this Complaint. 28 U.S.C. § 1915A(a). “On review, the court shall. . . dismiss the complaint, or any portion of the complaint, if [it] - (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
As to the first basis for dismissal, the United States Supreme Court has explained that “a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “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. Federal Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). As part of this review, the Court may anticipate affirmative defenses that clearly appear on the face of the complaint. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983).
For the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C. § 1915A(b) because it is frivolous.
As an initial matter, the Court notes that Plaintiff is attempting to undermine his conviction or sentence for rape. Plaintiff may not do so without first showing that such conviction was 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 fails to do so and, in fact, he remains incarcerated for that conviction. Dismissal is proper for this reason alone.
To any extent Plaintiffs claims ate not batted under Heck, they are barred by the statute of limitations. The application of the appropriate statute of limitations is an affirmative defense that the Court may consider in this context. See Eriline Co. S.A, v. Johnson, 440 F.3d 648, 655-56 (4th Cir. 2006) (citing Nasim, 64 F.3d at 955). The statute of limitations in this case is three years. See Wilson v. Garcia, 471 U.S. 261, 276-80 (1985) (holding that, in section 1983 actions, state statute of limitations for personal injury applies); Brooks v. City of Winston Salem, 85 F.3d 178, 181 (4th Cir. 1996) (applying North Carolina's three-year statute of limitations for personal injuries to section 1983 actions); N.C. Gen. Stat § 1-52 (establishing three-year statute of limitations for personal injury). A plaintiff s cause of action accrues, and the statute of limitations runs, from the date on which he “possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim, 64 F.3d at 955. Here, according to attachments to the Complaint, Plaintiff was convicted in 2004, or approximately 18 years ago. He would have known of any failure to conduct DNA testing at that time. Therefore, the statute of limitations expired long ago.
As a result, Plaintiffs request to proceed in forma pauperis should not be countenanced, with the exception that in forma pauperis status shall be granted for the sole purpose of entering tliis Order and Recommendation.
Plaintiff has submitted the Complaint for filing, however, and, notwithstanding the preceding determination, § 1915(b)(1) requires that he make an initial payment if funds for such a payment exist. Plaintiff s in forma pauperis application reflects that no such funds exist. 3 Therefore, the Court will not order an initial partial payment, but will instead order that Plaintiffs custodian deduct funds form Plaintiff s account if they become available.
IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that Plaintiff s trust officer shall be directed to pay to the Clerk of this Court 20% of all deposits to his account starting with the month of March of 2023, and thereafter each time that the amount in the account exceeds $10.00 until the $350.00 filing fee has been paid.
IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A for being frivolous.