Opinion
5:21-CV-374-FL
12-01-2021
SHELIA Y. LEE, individually and on behalf of R.K.N., a minor, Plaintiff, v. CUMBERLAND COUNTY SHERIFF'S DEPARTMENT, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge.
This matter is before the court on pro se Plaintiff Shelia Y Lee's application to proceed in forma pauperis, [DE-1], and for frivolity review 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 (1) Plaintiff's claims asserted on behalf of R.K.N. be dismissed without prejudice, (2) Plaintiff's claims against the Cumberland County Sheriff's Department be dismissed, and (3) Plaintiff's claims asserted on her own behalf against Deputy Krimbell be allowed to proceed.
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 Corn, 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.'" Ashcroftv. 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). 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. DISCUSSION
Plaintiff alleges that on November 8, 2019, Cumberland County Sheriffs Deputy Krimbell, accompanied by five others, kicked in her door, kicked her in the head, arrested her, and picked up her nine-year-old grandson, R.K.N., and slammed him to the ground. Compl. [DE-1-1]. Plaintiff seeks monetary damages for herself and for R.K.N. Id.
Construing the pro se complaint liberally to allow for the development of potentially meritorious claims, it appears Plaintiff seeks to proceed, individually and on behalf of R.K.N., against the Cumberland County Sheriff's Office and Deputy Krimbell under 42 U.S.C. § 1983 for Constitutional violations, including use of excessive force. The court finds Plaintiff's claims asserted on her own behalf against Deputy Krimbell survive frivolity review and that all remaining claims should be dismissed.
1. Plaintiff's Claims on Behalf of Minor R.K.N.
Plaintiff seeks to assert claims on behalf of her minor grandson, R.K.N. However, Plaintiff has failed to allege she is his duly appointed representative. Fed.R.Civ.P. 17(c)(2) provides that "[a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action." However, "a next friend or guardian ad litem cannot step forward and assume on his own the authority to prosecute the infant plaintiff's suit; rather, his authority is based on appointment by the court." Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 285-86 (4th Cir. 1979).
Moreover, while the pro se Plaintiff could seek permission from the court to act as R.K.N.'s representative, she cannot act as his attorney in a pro se capacity. See Myers v. Louden Cnty. Pub. Schs. , 418 F.3d 395, 400 (4th Cir. 2005) ("The right to litigate for oneself, however, does not create a coordinate right to litigate for others.") (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)). This rule protects children from "well-meaning, but legally untrained" relatives who attempt to litigate on a child's behalf. See Williams ex rel. E. W v. Wake Cnty. Pub. Sch. Sys., No. 5:08-CV-92-D, 2008 WL 2491129, at *1 (E.D. N.C. June 20, 2008) (dismissing complaint because the plaintiff was not permitted to litigate pro se on behalf of a minor child) (quoting Myers, 418 F.3d at 401); Verbal v. Krueger, No. 1:09-CV-990, 2010 WL 276644, at *3 (M.D. N.C. Jan. 15, 2010) (dismissing a claim on frivolity review because apro se plaintiff could not proceed as next friend for her minor child). Accordingly, it is recommended that Plaintiff's claims asserted on behalf of R.K.N. be dismissed without prejudice.
2. Claims Against the Cumberland County Sheriff's Department
Plaintiff has named the Cumberland County Sheriff's Department as a defendant in this matter. "State law dictates whether a [state] governmental agency has the capacity to be sued in federal court." Hill v. Robeson Cnty., N.C., 733 F.Supp.2d 676, 690 (E.D. N.C. 2010) (quoting Eflrd v. Riley, 342 F.Supp.2d 413, 419-20 (M.D. N.C. 2004), and citing Avery v. Cnty. of Burke, 660 F.2d 111, 113-14 (4th Cir. 1981))." N.C. Gen. Stat.§ 153A-11 acknowledges that a county is a legal entity which may be sued. However, there is no corresponding statute authorizing suit against a North Carolina county's sheriff's department." Harris v. Foy, No. 5:09-CT-3124-FL, 2012 WL 2339503, at *2 (E.D. N.C. June 19, 2012). Therefore, under North Carolina law, a sheriff's department "lacks legal capacity to be sued." Hill, 733 F.Supp.2d at 690 (citations omitted). Accordingly, it is recommended that claims against the Cumberland County Sheriff's Department be dismissed with prejudice.
Plaintiff, in response to this memorandum and recommendation, may seek to amend her complaint to add proper parties. See Galustian v. Peter, 591 F.3d 724, 729 (4th Cir.2010) ("It is this Circuit's policy to liberally allow amendment in keeping with the spirit of Federal Rule of Civil Procedure 15(a).").
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiff's claims asserted on her own behalf against Deputy Krimbell be allowed to proceed, the claims asserted on behalf of R.K.N. be dismissed without prejudice, and the claims asserted against the Cumberland County Sheriff's Department be dismissed with prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until November 4, 2021, 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).