Opinion
5:23-CV-93-M
06-05-2023
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-5], 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 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 o/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 BellAtl. 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).
II. ANALYSIS
Plaintiff, Edward Stokes, alleges that on April 11,2022, at approximately 3:00 p.m., Officer Madina stopped Stokes' vehicle on Hope Mills Rd. and searched the vehicle without probable cause or reasonable suspicion of a crime. Compl. [DE-1] at 3-4. A dog sniff search was conducted, and no drugs were found. Id. at 4. Stokes claims that he committed no crimes but was arrested and charged with an object that was found during the search. Id. Stokes claims that his Fourth Amendment and due process rights were violated, and he asserts a claim under 42 U.S.C. § 1983, seeking $50,000.00 in damages. Id. at 4-5.
First, with respect to Defendants Dollinger and Tew, they are not mentioned in the complaint and there are no factual allegations made against them that could support a claim. Thus, Stokes has failed to state a claim against Dollinger and Tew, and they should be dismissed from the action. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
As for Officer Madina, Stokes alleges Madina stopped him without probable cause or reasonable suspicion of a crime and that he was arrested and charged with an object that was discovered during the search. Compl. [DE-1] at 3-4. Stokes' § 1983 claim for the alleged unconstitutional search and seizure is barred under Heck v. Humphrey, in which the Supreme Court held that,
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.512 U.S. 477, 486-87 (1994). The Supreme Court also noted in Heck that because of doctrines like independent source, inevitable discovery, and harmless error, a finding of an illegal search and seizure does not always render the underlying conviction invalid. Id. at 487 n.7. In this case, however, the court should apply Heck to Stokes' illegal search and seizure claim.
In Ballenger v. Owens, the Fourth Circuit applied Heck to a claim stemming from an alleged illegal automobile stop resulting in the seizure of cocaine and drug trafficking charges. 352 F.3d 842, 846 (4th Cir. 2003). The court reasoned that “the cocaine seized from arrestee's automobile was uniquely available from alleged illegal search thereof, and if it had been suppressed, there would have been no evidence to convict arrestee for drug trafficking.” Id. In this case, based on the facts as alleged by Stokes, the object he was charged with illegally possessing was seized during the stop and search of his vehicle; thus, a finding that the stop and search was unconstitutional would necessarily result in suppression of the evidence with which he was charged and would imply any conviction or sentence for possessing that suppressed evidence would be invalidated. Applying Heck, the court should dismiss the complaint where Stokes has not alleged a “favorable termination” of his criminal charge. See Benanti v. Poynter, No. 1:19-CV-00147-MR, 2020 WL 5502315, at *6 (W.D. N.C. Sept. 11, 2020) (applying Heck and explaining that “[i]f Plaintiff were to succeed on his claim that the search was unconstitutional, that would imply that the evidence that was recovered from the rental cabin should have been suppressed in the criminal case,” and the evidence was essential to the Government's criminal case against the plaintiff); Gaddy v. Sprague, No. 3:14-CV-156-GCM, 2015 WL 1249567, at *2 (W.D. N.C. Mar. 18, 2015) (claim that search of the hotel room and the seizure of the drugs that led to Plaintiff's drug trafficking conviction were illegal was barred by Heck where the plaintiff failed to demonstrate his underlying conviction was invalid).
III. CONCLUSION
For the reasons stated herein, the motion 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 June 19, 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).
Submitted, this the 5th day of June, 2023.