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Rainey v. Burrell

United States District Court, W.D. North Carolina, Asheville Division

February 13, 2015

KEVIN J. RAINEY, Plaintiff,
v.
J. BURRELL, Hendersonville, P.D.; BRENDA S. McMURRAY, Magistrate; R.E. UNDERWOOD, Hendersonville P.D.; JAMES LEE LIVELY, Magistrate; KIMBERLY GASPERSON JUSTICE, Clerk of Superior Court, Defendants.

ORDER

FRANK D. WHITNEY, District Judge.

THIS MATTER is before the Court on consideration of Plaintiff's pro se complaint, filed pursuant to 42 U.S.C. § 1983.

I. BACKGROUND

According to the complaint, Plaintiff was arrested on September 24, 2007, by Officer J. Burrell of the Hendersonville Police Department on a charge of obtaining property by false pretenses (Case No. 07CR62387) and unauthorized use of a motor vehicle (07CR55666) based on a warrant issued by magistrate Brenda S. McMurray on September 12, 2007. Plaintiff was later convicted and served a term of roughly ten months as a prisoner of the State of North Carolina and he was released on or about October 8, 2009.

On February 26, 2011, Plaintiff was arrested by Officer R.E. Underwood of the Hendersonville Police Department on charges of felony larceny (Case No. 07CR56042) and unauthorized use of a motor vehicle (Case No. 07CR55309) based on a warrant issued by magistrate James Lee Livey on September 8, 2007. Plaintiff contends that the 2011 arrests were "for the same property crimes" which formed the basis for his 2007 convictions. Plaintiff was detained on the February arrest until July 8, 2011, when an assistant district attorney dismissed the charges on the grounds of double jeopardy. (1:14-cv-176, Doc. No. 1 at 7).

Plaintiff contends that the defendants' collective actions in arresting, detaining, and prosecuting him in 2011, on what he contends are the substance of the 2007 charges, violated his right to be free from double jeopardy and cruel and unusual punishment, and resulted in him being falsely imprisoned for 132 days and was driven by malicious prosecution.[1] In his claims for relief, Plaintiff seeks monetary damages to compensate him for his inability to work during this detention, and to compensate him for pain and suffering, and for loss of property. Plaintiff also seeks monetary damages because his name was "slandered in news publications and also resulted in defamation of character." (Id. at 3).

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(A)(a), "The court shall review... a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Following this initial review the "court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted." Id. § 1915A(b)(1). In conducting this review, the Court must determine whether the complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in the complaint which set forth a claim that is cognizable under Federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

III. DISCUSSION

In order to "state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988) (internal citations omitted). Plaintiff has alleged that his Fifth and Eighth Amendment rights were violated by the defendants and it is beyond question that on the facts as alleged in the complaint that the defendants were acting under color of state law. Nevertheless, Plaintiff's complaint fails to state a claim for relief for the following reasons.[2]

A. Double Jeopardy

Plaintiff was convicted on May 21, 2008, with the crime of obtaining property by false pretenses (07CR062387) which is a violation of N.C. Gen. Stat. § 14-100, and is classified as a Class H felony. The alleged offense date was September 12, 2007. Plaintiff was convicted on April 25, 2008, for the unauthorized use of a motor vehicle (0755666) which is classified as a Class 1 misdemeanor under N.C. Gen. Stat. § 14-72.2. The alleged offense date was September 24, 2007. These two charges were consolidated for judgment and Petitioner was sentenced to a 10-month term of active imprisonment and released on October 6, 2009.[3]

Plaintiff contends that he was also charged in 2007 with the Class H crime of felony larceny (07CR56402), in violation of N.C. Gen. Stat. § 14-72, and unauthorized use of a motor vehicle (07CR55309), a Class 1 misdemeanor. According to Plaintiff, he was detained on these charges on February 26, 2011, until an assistant ...


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