Opinion
No. 4:19-CV-84-BO
06-05-2019
GREGORY HEMBY, Plaintiffs, v. THE OFFICE OF THE DISTRICT ATTORNEY, PITT COUNTY, NORTH CAROLINA and PITT COUNTY MAGISTRATE OFFICE, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915 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 is allowed. However, for the reasons that follow, 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 of 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 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. ANALYSIS
Mr. Hemby brings this action alleging he was wrongfully arrested without probable cause and maliciously prosecuted for Second Degree Trespass in Pitt County District Court, Case No. 18 CR 056398. Compl. [DE-1-1] ¶¶ 6-18. The case remains pending. Id. ¶¶ 2-3. Mr. Hemby alleges the Pitt County Magistrate failed to require a probable cause showing to detain him, and the Pitt County District Attorney's Office initiated a malicious prosecution against him, violating his civil rights under the United States Constitution and North Carolina state law. Id. ¶¶ 7-18. Mr. Hemby seeks monetary damages and dismissal of the pending charge. Id. ¶¶ 26-27, 29-30. A. Section 1983 Claim
Mr. Hemby may have intended to bring this action in state court. He alleged that
[t]his proceeding is instituted in the State of North Carolina Superior Court, Pitt County, North Carolina as the judicial forum in which the cause of action arose, [] as the place where the relevant acts giving rise to this controversy occurred[,] and where alleged civil wrongs and civil aspects can be heard and addressed that th[e] District Court cannot address and redress that the Plaintiff seeks.[DE-1-1] ¶ 5. Mr. Hemby also asks the court to dismiss the trespass charge or enter a judgment in his favor. Id. ¶¶ 26-27. To the extent Mr. Hemby did not intend to pursue his claims in federal court, he may file a notice of dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A).
It appears Mr. Hemby cited 42 U.S.C. § 1985 in error when setting forth the allegations of his § 1983 claim. Compl. [DE-1-1] ¶ 19. However, to the extent he attempts to bring a § 1985 claim, he has failed to state a claim. To state a claim for conspiracy to violate civil rights under § 1985(3), "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Mr. Hemby's complaint, liberally construed, fails to allege discriminatory animus; thus, he has not stated a § 1985(3) claim.
Mr. Hemby alleges his Fourth Amendment rights were violated and seeks relief under 42 U.S.C. § 1983. Compl. [DE-1-1] ¶¶ 19-20. 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 claim under § 1983, a plaintiff must allege facts indicating a deprivation of rights guaranteed by the Constitution and laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); see Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citations omitted).
In order to challenge any aspect of a pending criminal case under § 1983, the complaint "must plausibly allege that the underlying 'conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . ., or called into question by a federal court's issuance of a writ of habeas corpus.'" Sheridan v. Shekita, No. 5:16-CT-3085-D, 2016 WL 9083355, at *2 (E.D.N.C. Oct. 31, 2016) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)), aff'd. 678 F. App'x 145 (4th Cir. 2017). "A district court must undertake a case specific analysis to determine whether success on the [section 1983] claims would necessarily imply the invalidity of a conviction or sentence," and "[i]f so, the court must dismiss the complaint." Id. (quoting Thigpen v. McDonnell, 273 F. App'x 271, 272 (4th Cir. 2008) (per curiam)). Mr. Hemby alleges that his arrest was not supported by probable cause and that his prosecution was malicious, but he fails to make the allegations required by Heck because his case is still pending and has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or otherwise called into question. See id. (dismissing § 1983 claim as barred by Heck where the plaintiff challenged the sufficiency of evidence against him in his criminal case and asserted malicious prosecution but failed to make the allegations Heck requires). Accordingly, it is recommended that the § 1983 claim be dismissed pursuant to Heck.
Mr. Hemby also names defendants who are immune from § 1983 claims for monetary damages. "State officials sued in their official capacity for damages are protected by Eleventh Amendment immunity." Coulter v. Estate of Grannis, No. 5:16-CV-277-BO, 2017 WL 2226566, at *2 (E.D.N.C. May 19, 2017) (citing Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir. 2003)). "Claims against North Carolina district attorneys in their official capacities are plainly claims against state officials and are barred by the Eleventh Amendment." Id. (citing Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006)). Likewise, official capacity claims against judicial officers, such as magistrates, are barred by the Eleventh Amendment. See D'Alessandro v. North Carolina, No. 5:14-CV-16-BO, 2014 WL 2535222, at *3 (E.D.N.C. Mar. 27, 2014), adopted by 2014 WL 2547696 (E.D.N.C. June 5, 2014). While Mr. Hemby alleges the state has waived its immunity under the North Carolina Tort Claims Act, Compl. [DE-1-1] ¶ 28, he is mistaken. The act "did not affect North Carolina's Eleventh Amendment immunity in federal courts." Dove for Estate of Dove v. Stevens, No. 5:05-CV-33-BO(1), 2006 WL 8438680, at *4 (E.D.N.C. Oct. 23, 2006); see Olavarria v. N.C. Admin. Office of Courts, No. 5:15-CV-00577-F, 2016 WL 1060238, at *1 (E.D.N.C. Mar. 14, 2016) ("The plain text of the statute limits the state's waiver, vesting in the Industrial Commission exclusive jurisdiction over cases falling under the Act.") (citing N.C. Gen. Stat. § 143-291(a); Russell v. N.C. Dep't of Env't & Nat. Res., 742 S.E.2d 329, 332 (N.C. Ct. App. 2013)).
Prosecutors have absolute prosecutorial immunity from individual capacity claims for monetary damages "for acts carried out in the judicial phase of their prosecutorial functions, including initiating a judicial proceeding or appearing in court." Sheridan, 2016 WL 9083355, at *2 (dismissing malicious prosecution claim against an assistant district attorney because prosecutors are immune from suit for initiating a judicial proceeding); see Washington v. Wilson, 697 F. App'x 241, 243 (4th Cir. 2017) (per curiam) (affirming dismissal of vindictive and improper prosecution claim against the state attorney general's office, the attorney general, and a deputy attorney general on the grounds of absolute prosecutorial immunity because "their actions and inactions arose from their roles as advocates for the State [] in prosecuting [the plaintiff].") (citing Imbler v. Pachtman, 424 U.S. 409, 423-28) (1976)); Safar v. Tingle, 859 F.3d 241, 249 (4th Cir. 2017) (concluding the prosecutor's decision to seek an arrest warrant and the decision whether to withdraw an arrest warrant after learning no crime had been committed are protected by absolute immunity). Here, the decision to bring charges against Mr. Hemby falls within the scope of conduct protected by prosecutorial immunity.
Magistrates in North Carolina are officers of the district court and, as such, are entitled to absolute judicial immunity from individual capacity claims for monetary damages when performing a judicial act so long as they do not act "in clear absence of all jurisdiction." Bryant-Bunch v. Northampton Cty., No. 2:05-CV-34-D(2), 2006 WL 8438547, at *1 (E.D.N.C. Apr. 7, 2006) (citations omitted). Here, the decision of the magistrate to issue a warrant is a protected judicial act, id., and there is no allegation that the magistrate acted without jurisdiction.
Accordingly, the Defendants are absolutely immune from Mr. Hemby's § 1983 claim for monetary damages, and it is recommended that this claim be dismissed.
B. State Criminal Case
Mr. Hemby asks the court to dismiss the Second Degree Trespass charge, pending in Pitt County District Court, for insufficiency of the evidence or, alternatively, to enter judgment in his favor. Compl. [DE-1-1] ¶¶ 26-27. This court must abstain from interfering in a pending state court criminal proceeding. See Gould v. Bertie Cty., 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 v. Harris, 401 U.S. 37 (1971)), aff'd, 604 F. App'x 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). Accordingly, it is recommended that this claim be dismissed.
C. State Law Claims
Mr. Hemby alleges state law claims for injury to his reputation and character, citing N.C. Gen. Stat. Ch. 99; abuse of legal process; and interference with prospective advantage. Compl. [DE-1-1] ¶¶ 21-25. Where it is recommended that Plaintiff's federal claim be dismissed, the court may decline to exercise supplemental jurisdiction over any remaining state law claims. See 28 U.S.C. § 1367 (c)(3) (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) (concluding that having dismissed federal claims, the 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 remaining state law claims be dismissed.
III. CONCLUSION
For the reasons stated herein, the application to proceed in forma pauperis is ALLOWED and it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until June 19, 2019 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, the 5th of June 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge