Opinion
1:21CV67
03-18-2021
PATRICK SHAWN SYLVESTER, Plaintiff, v. GARY WILSON FRANK, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster, United States Magistrate Judge
Plaintiff, a detainee at the Davidson County Jail, submitted a pro se Complaint (Docket Entry 2) under 42 U.S.C. § 1983 and requests permission to proceed in forma pauperis pursuant to 28 U.S.C. § l915(a). The Complaint alleges violations of Plaintiff's rights by a district attorney, assistant district attorney, jail guard, and nurse and seeks $600,000 in damages as relief. 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).
Applicable here, the final ground for dismissal under 28 U.S.C. § 1915A(b)(2) generally applies to situations in which doctrines established by the United States Constitution or at common law immunize governments and/or government personnel from liability for monetary damages. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing sovereign immunity of states and state officials under Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and common-law immunity doctrines, such as judicial, legislative, and prosecutorial immunity); cf. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy”).
For the reasons that follow, portions of the Complaint should go forward, but other portions should be dismissed pursuant to 28 U.S.C. § 1915A(b) because they raise claims seeking damages against Defendants immune from monetary relief.
After review of the Complaint, it appears that Plaintiff sets out potential claims against Defendant Cody Johson based on an alleged use of excessive force and against Defendant Brittany Belger based on allegedly inadequate medical treatment. However, Defendants Gary Frank and Allen Martian are state court prosecutors involved in Plaintiff's state court criminal case. The Complaint seeks to raise claims against them for their actions in that case. However, prosecutors have absolute immunity for their participation in the judicial process. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). Therefore, the Court should dismiss the claims against Defendants Frank and Martian.
As for Plaintiff's request to proceed in forma pauperis, § 1915(b)(1) requires that he make an initial payment of $6.86. Failure to comply with this Order will lead to dismissal of the complaint.
IT IS THEREFORE RECOMMENDED that Plaintiff's claims against Defendants Johson and Belger be allowed to proceed but that the claims against Defendants Frank and Martian be dismissed pursuant to 28 U.S.C. § 1915A for seeking monetary relief from defendants immune from such relief.
IT IS ORDERED that in forma pauperis status be granted for the sole purpose of entering this Order and Recommendation.
IT IS FURTHER ORDERED that within twenty (20) days from the date of this Order Plaintiff make an initial filing fee payment of $6.86.
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 May of 2021, and thereafter each time that the amount in the account exceeds $10.00 until the $350.00 filing fee has been paid.
IT IS FURTHER ORDERED that all payments deducted in relation to this case shall be designated as made in payment of the filing fee for Civil Action No. 1:21CV67, and shall be paid to the Clerk, U.S. District Court for the Middle District of North Carolina. In the event Plaintiff is transferred to another institution, the balance due shall be collected and paid to the Clerk by the custodian at Plaintiff's next institution. A copy of this Order shall be sent to Plaintiff's current custodian.
IT IS FURTHER ORDERED that this action be filed, but that further proceedings and service of summons as to the remaining Defendants be stayed until Plaintiff either (1) submits to the Court the initial payment noted above, or (2) in the alternative submits a motion for relief from the stay, and a statement made under penalty of perjury that he has not had access to any funds for the initial payment noted above for the 20-day period.
FAILURE TO COMPLY WITH THIS ORDER IN A TIMELY MANNER WILL RESULT IN DISMISSAL OF THIS ACTION WITHOUT FURTHER NOTICE TO PLAINTIFF.