Opinion
5:22-CV-207-FL
03-22-2023
DERRICK ALLEN, SR., Plaintiff, v. ALDI, INC. et al, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
BRIO'S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the application by plaintiff Derrick Allen Sr. (“plaintiff”) to proceed in forma pauperis [D.E. 1] pursuant to 28 U.S.C. § 1915(a)(1) (“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. The court finds that defendant has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, for the reasons set forth below, it is recommended that plaintiff's complaint be DISMISSED.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's application and finds that he has adequately demonstrated his inability to prepay the required court costs. His application to proceed in forma pauperis [D.E. 1] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S ALLEGATIONS AND CLAIMS
In this action, plaintiff asserts claims against seven defendants, Aldi Inc. (“Aldi”), Cary Police Department, City of Cary, Harold Winebrecht (Cary Mayor) (“Mayor Winebrecht”), Sean R. Stegall (Cary City Manager) (“City Manager Stegall”), Virginia H. Johnson (Clerk for Town of Cary) (“Town Clerk Johnson”), and the Wake County Sheriff Department, that appear to arise from, or relate to, an incident involving a purported trespass that occurred at one or more Aldi grocery stores. See generally Compl. [D.E. 2]. While plaintiff's handwritten complaint is somewhat disjointed and difficult to understand, he appears to allege as follows:
Plaintiff's handwritten complaint is at times difficult to read and appears to use a random combination of uppercase and lowercase letters, which are often difficult to distinguish from one another. The court has attempted to transcribe these into sentence case, unless otherwise noted.
On May 7, 2022, plaintiff went to an Aldi grocery store at 10210 Greenlevel Road in Cary, North Carolina (“Cary Aldi”), but never entered the store. Instead, he went to an Aldi located at 1770 West Williams St., Apex, North Carolina (“Apex Aldi”). Plaintiff claims that at the Apex Aldi, he was wearing a green kufi, which signifies his ideology. While waiting to be checked out by a cashier, numerous Caucasian patrons jumped in the check-out line ahead of plaintiff. Plaintiff claims that he sees this type of behavior on a regular basis, which he finds “unacceptable . . . and conduces this psychological tumult.” Compl. [D.E. 2] at 6 (ellipsis in original). After stepping aside to allow “several white families to check-out before [him],” plaintiff asked, “if any other whites would like to go before [plaintiff].” Compl. [D.E. 2] at 6.
Plaintiff appears to further allege that upon a subsequent visit to the Cary Aldi on Mother's Day, an “un-identified [sic] Caucasian female” asked plaintiff to move his car, which he refused. The Caucasian female then allegedly blocked plaintiff's path and told him he was “trespassed and pursuant to N.C. G.S. 14-159.12.” Compl. [D.E. 2] at 6.
Plaintiff's complaint then quotes the Fifth Amendment: “‘[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.'” Compl. [D.E. 2] at 7. Plaintiff argues that his actions did not constitute trespass, as he did not enter the Aldi, and the North Carolina statute on second degree trespass requires “enter[ing the] premises of another” as one of the required elements. N.C. G.S. § 14-159.13. In response to “CASE # 22 CR 205701” that was filed against him, plaintiff states, “self-defense is the pleading.” Compl. [D.E. 2] at 7. Plaintiff then argues further:
§ 14-159.13. Second degree trespass. (a) Offense. - A person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another: (1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or (2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises. (b) Classification. - Second degree trespass is a Class 3 misdemeanor. (1987, c. 700, s. 1; 1993, c. 539, s. 102; 1994, Ex. Sess., c. 24, s. 14(c).)
the government continue to probe indirectly [sic] and attempt to create instances which would eke-out [sic] a negative response out of I [sic]. Aldi, is were [sic] police officers and Cary's Fire department personnel's shop. I was trespassed when I did nothing but attempt to purchase food for my mom for Mother's Day. I was trespassed w/o committing a crime but for exercising my First Amendment, the Freedom of Speech.Id.
Plaintiff alleges that the court has jurisdiction pursuant to 28 U.S.C. § 1331 and 18 U.S.C. § 242, as well as the Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Compl. [D.E. 2] at 4.
The relief sought by plaintiff is “to be compensated in the amount specified (see, civil cover sheet)” (Compl. [D.E. 2] at 5), that is $500,000 ([D.E. 3]).
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Criminal Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
III. LACK OF SUBJECT MATTER JURISDICTION
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern 190 F.3d at 654. Plaintiff does not invoke diversity jurisdiction in his claim, nor does he plead any facts supporting diversity jurisdiction. See Compl. [D.E. 2] at 2-3 (indicating that all defendants are domiciled in North Carolina). Plaintiff claims federal question jurisdiction under 28 U.S.C. § 1331 and 18 U.S.C. § 242, as well as the Fifth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution. Compl. [D.E. 2] at 4. 28 U.S.C. § 1331 is the statute codifying federal question jurisdiction. It is not a source of substantive rights itself. Plaintiff's federal question jurisdiction also fails under 18 U.S.C. § 242 for the reasons set out below. Even if plaintiff's complaint is construed to assert a claim under 42 U.S.C. § 1983, as discussed below, the court does not have subject matter jurisdiction under the Rooker-Feldman and Younger doctrines.
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Title 28 U.S.C. § 1331.
A. Lack of Jurisdiction under 18 U.S.C. § 242
For federal question jurisdiction, plaintiff looks initially to 18 U.S.C. § 242. However, 18 U.S.C. § 242 is a criminal statute, and does not create private rights of action. See El Bey v. Celebration Station, No. 3:02CV461, 2006 WL 2811497, at *3 (W.D. N.C. 28 Sept. 2006) (“[18 U.S.C. § 242] however, do[es] not give rise to a civil action for damages, and neither the plaintiff nor this Court has the authority to issue a criminal complaint.”), aff'd, 242 Fed.Appx. 917 (4th Cir. 2007). Because it does not create a private right of action, it cannot serve as a basis for subject matter jurisdiction. The complaint is subject to dismissal on this ground.
Section 242 reads:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.18 U.S.C. § 242.
B. Rooker-Feldman Doctrine and Younger Doctrine
If plaintiff's claims are construed to have been brought pursuant to 18 U.S.C. § 1983, the civil analogue to 18 U.S.C. § 242, the court still lacks subject matter jurisdiction under the Rooker-Feldman and Younger doctrines. See El Bey v. Celebration No. 3:02CV461, 2006 WL 2811497, at *3 (W.D. N.C. 28 Sept. 2006) aff'd, 242 Fed.Appx. 917 (4th Cir. 2007).
Plaintiff's claims appear to turn on the constitutionality of a second degree trespass charge. See Compl. [D.E. 2] at 7. It is unclear from plaintiff's complaint whether he has been convicted in this case or if the case is still pending, but this court does not have subject matter jurisdiction in either event. To the extent plaintiff is challenging any conviction arising from his arrest, he cannot do so under § 1983. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (“[I]n 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.”); see also American Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003) (applying Rooker-Feldman doctrine, which bars what in substance would be appellate review in district court of a state court judgment). Plaintiff has made no showing that any conviction or sentence arising from his arrest was reversed or subject to any of the other action specified in Heck v. Humphrey. Accordingly, any purported claims by plaintiff challenging any conviction or sentence are not cognizable under § 1983 and should be dismissed.
If plaintiff's case is ongoing, this court lacks subject matter jurisdiction under the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971), established the principle that federal courts should not intervene in state criminal, civil, and administrative proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). “Younger and ‘its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.'” Beam v. Tatum, 299 Fed.Appx. 243, 245 (4th Cir. 2008) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982)). Abstention is required where “(1) there is an ongoing state judicial proceeding brought prior to substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides adequate opportunity to raise constitutional challenges.” Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006).
Here, to the extent that plaintiff's case is not resolved, there are at least some ongoing state court proceedings, which were pending at the time plaintiff filed his complaint in this court. Thus, the first prong of Younger is met. Next, the second prong is met as “the States' interest in administering their [] justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief.” Thomas v. Equitable Life Mortg. and Realty Investors, No. 3:13-130-CMC-PJG, 2013 WL 2352589, at *8 (D.S.C. 29 May 2013) (quoting Kelly v. Robinson, 479 U.S. 36, 49 (1986)). Finally, the third prong is met because plaintiff has an adequate state forum to pursue his claims relating to the constitutionality of any trespass charges against him. See Thomas, 2013 WL 2352589, at *8 (denying a plaintiff's request to enjoin a state court foreclosure action, stating “that ordinarily a pending state [proceeding] provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights”) (quoting Kugler v. Helfant, 421 U.S. 117, 124 (1975)).
The court concludes that the combination of the Rooker-Feldman doctrine and the Younger doctrine deprives this court of subject matter jurisdiction, and the undersigned therefore recommends this case be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IV. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
In addition to that lack of subject matter jurisdiction in this case, it is recommended that plaintiff's complaint be dismissed for failing to state a claim upon which relief can be granted. There are three alternative bases for dismissal on this ground.
A. Immune defendants under 42 U.S.C. § 1983
Plaintiff alleges violations of the Fifth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution. Compl. [D.E. 2] at 4. As noted above, in liberally reading plaintiff's filings, the court construes the complaint to assert a claim under § 1983, the statute which provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: “(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL, 2021 WL 312621, at *2 (E.D. N.C. Jan. 6, 2021), report and recommendation adopted, No. 4:20-CV-233-FL, 2021 WL 308592 (E.D. N.C. Jan. 29, 2021), aff'd, No. 21-2110, 2021 WL 5985559 (4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D. N.C. 12 Apr. 2012)) (internal citations omitted) (internal quotation marks omitted). Plaintiff's § 1983 claims fail against each defendant for one or more of the following reasons: (1) the defendant was not acting under color of state law, (2) the defendant was not a legal entity capable of being sued, or (3) the defendant cannot be held responsible for the actions of its subordinates under the theory of respondeat superior.
1. Aldi
There is no information in claimant's filings to suggest that Aldi was acting under the color of state law. The “under-color-of-state-law element of § 1983,” is similar to the Fourteenth Amendment's “state-action” requirement in that it “excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (noting the equivalence of the § 1983's “color of law” requirement and the Fourteenth Amendment's “state action” requirement). The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as:
(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen. If the conduct does not fall into one of these four
categories, then the private conduct is not an action of the state.Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir.1993).
Plaintiff's contention that “Aldi, is were [sic] police officers and Cary's Fire department personnel's shop” (Compl. [D.E. 2] at 7), falls woefully short of pleading any facts that would qualify for any of these categories. As there is no indication in the filings that Aldi was anything but a private party engaged in private action, plaintiff's § 1983 claim against Aldi must fail.
The court also takes judicial notice of the fact that according to its website, Aldi is a privately held company. https://www.aldi.us/en/about-aldi/faqs/corporate-inquiries/#:~:text'stock%20in%20ALDI%3F-,A.,is%20a%20privately%20held%20company (last visited Dec. 29, 2022).
2. Cary Police Department and Wake County Sheriff Department
Plaintiff's claim against the Town of Cary Police Department and Wake County Sheriff Department are also subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2). The Town of Cary Police Department and Wake County Sheriff Department are not legal entities capable of being sued. See Wilson v. Fayetteville Police Dep't, No. 5:13-CV-178-BO, 2014 WL 555663, at *1-2 (E.D. N.C. Feb. 11, 2014) (noting that municipal police departments are not subject to suit under § 1983); Phipps v. Grady, No. 7:17-CV-78-H, 2018 WL 1144976, at *2 (E.D. N.C. Mar. 2, 2018) (“By statute, the city or county is the legal entity which can sue and be sued, not the sheriff's department or police department of a county or city.”); see also Bettis v. Madison Cnty. Sheriff's Dep't, No. 1:10-cv-69-RJC, 2012 WL 161250 (W.D. N.C. Jan. 19, 2012); Robbinson v. Iredel Cnty. Sheriff's Office/Dep't, No. 5:09cv131-V, 2011 WL 5974535, at *1 n. 1 (W.D. N.C. Nov. 29, 2011); Landry v. North Carolina, No. 3:10-cv-0585-RJC-DCK, 2011 WL 3683231 (W.D. N.C. Mar. 11, 2011) (holding that the sheriff's department is not an entity capable of suit pursuant to § 1983).
Thus, plaintiff's claims against the Town of Cary Police Department and Wake County Sheriff Department should be dismissed as frivolous or for failure to state a claim upon which relief may be granted.
3. City of Cary
While, the Supreme Court has determined that § 1983 applies to local governments, Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 (1978), “that application is without merit here.” Carter v. City of Raleigh, No. 5:18-CV-160-D, 2018 WL 3353740, at *5 (E.D. N.C. June 18, 2018), report and recommendation adopted, No. 5:18-CV-160-D, 2018 WL 3352642 (E.D. N.C. July 9, 2018). “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. In other words, there is no respondeat superior liability under § 1983 claims. Instead, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. An official policy may arise from written ordinances and regulations, Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (citing Monell, 436 U.S. at 690), affirmative decisions of policymaking individuals, Id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)), or omissions of policymakers manifesting “deliberate indifference to the rights of citizens,” Id. (citing Canton v. City of Harris, 489 U.S. 378, 388-89 (1989)). An official custom is said to exist where “a practice is ‘so persistent and widespread' and ‘so permanent and well settled as to constitute a custom or usage with the force of law.'” Id. (quoting Monell, 436 U.S. at 691). Failure to train may rise to the level of an unconstitutional custom or policy, but only where there is a history of widespread abuse. Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983).
Here, plaintiff has failed to allege in any way that the City of Cary has propounded an official policy or custom that has resulted in the harm that he alleges, and instead vaguely alleges harm based on the isolated conduct of individual public officials or officers at the time of one incident. See Bowie v. Henderson Police Dep't, No. 5:12-CV-514-FL, 2012 WL 5392116, at *3-4 (E.D. N.C. Nov. 5, 2012) (dismissing on frivolity review a plaintiff's § 1983 claim for failing to allege any facts showing an official policy or custom of abuse, or failure to train, and finding mere allegations of isolated police misconduct were insufficient to state a claim).
Accordingly, it is recommended that any claims brought against the City of Cary be dismissed for failure to state a claim upon which relief may be granted.
4. Mayor Winebrecht, City Manager Stegall, Town Clerk Johnson
Plaintiff's § 1983 claims against Mayor Winebrecht, City Manager Stegall, and Town Clerk Johnson also fail. Plaintiff fails to allege any facts to support a claim that Mayor Winebrecht, City Manager Stegall, or Town Clerk Johnson had any personal involvement in the alleged acts of which plaintiff complains. See Compl. [D.E. 2]. Any claims against them are therefore presumably in their supervisory roles. However, a supervisor may not be held liable under § 1983 under the doctrine of respondeat superior. As this court has previously noted:
A supervisory official may not be held liable based upon a theory of respondeat superior, because respondeat superior generally is inapplicable in § 1983 suits. Monell v. Dep't of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To the extent plaintiff alleges a claim pursuant to supervisor liability, the United States Supreme Court recently addressed the theory of supervisor liability in the context of a § 1983 action. Iqbal, 556 U.S. at 677. In Iqbal, the Court held: “Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution.” Id. at 676. Mere knowledge is not sufficient to establish personal participation. Id.Toppin v. Kornegay, No. 5:12-CT-3117-FL, 2014 WL 694850, at *5 (E.D. N.C. Feb. 21, 2014).
As the doctrine of respondeat superior is inapplicable under § 1983, any claim against these defendants should be dismissed as frivolous or for failure to state a claim.
B. Absence of Cause of Action under 18 U.S.C. § 242
In addition, as addressed above in the context of lack of subject matter jurisdiction, the criminal statute upon which plaintiff expressly relies for his claim, 18 U.S.C. § 242, does not create private rights of action. See El Bey, 2006 WL 2811497, at *3. The complaint is thereby subject to dismissal for failure to state a claim upon which relief can be granted. See Andrews v. Wolcott Rivers Gates, No. 3:14CV76-HEH, 2014 WL 3016483, at *2 (E.D. Va. 3 July 2014) (holding that plaintiff failed to state a claim upon which relief could be granted where his claim was asserted pursuant to a criminal statute that did not include a private right of action), aff'd, 587 Fed.Appx. 75 (4th Cir. 2014).
C. Deficient pleading
Finally, the deficient pleading in the complaint (Compl. [D.E. 2] at 7) subjects the complaint to dismissal for failure to state a claim upon which relief may be granted. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016).
The court finds plaintiff's statement of his claims to be insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8. Plaintiff's entire complaint seems to be a vague defense against a trespass charge he is facing. See Compl. [D.E. 2] at 7 (“I was trespassed w/o committing a crime but for exercising my First Amendment, the Freedom of Speech.”). However, plaintiff fails to allege any specific actions or circumstances relating to any of the named defendants in this claim or indicate any specific legal claims arising from it.
The court therefore concludes that plaintiff's complaint fails to state a claim upon which relief may be granted and recommends that this case also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
V. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until January 17, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiff 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).