United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
This pro se case is before the court for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B) of the complaint filed by plaintiff Randy Jones ("plaintiff), an inmate. The frivolity review was referred to the undersigned Magistrate Judge for issuance of a memorandum and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(A). ( See 21 Oct. 2014 Public D.E.). For the reasons set forth below, it will be recommended that plaintiff's complaint be dismissed for lack of subject matter jurisdiction.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
Plaintiff's complaint (D.E. 1) consists of a four-page complaint form completed in handwriting ( id. at 1-4) and an accompanying three-page typewritten document entitled "Complaint" ( id. at 5-8). Plaintiff also filed as a supplement to the complaint a petition for clemency (D.E. 9 at 1-2) addressed to the Governor of North Carolina with a supporting unsigned affidavit ( id. at 3). In a cover letter to the clerk, plaintiff explains that he submitted the clemency petition "for the Court to consider the totality of my Eighth Amendment claim." (Ltr. (D.E. 9-1)).
The complaint names as the sole defendant Cumberland County Municipality ("defendant"). (Compl. 2 ¶ III.B). It, together with the clemency petition and supporting affidavit, allege as follows:
On 12 April 1999, plaintiff pled guilty in Cumberland County (North Carolina) Superior Court to trafficking 46 grams of heroin. ( id. at 6 ¶ 5, 2 ¶ II.2). He was sentenced to a fine of $500, 000 and a minimum term of imprisonment of 225 months and a maximum term of 279 months. ( id. at 6 ¶ 5; Clemency Pet. 1).
The fine is excessive under the Eighth Amendment. (Compl. 6 ¶ 6). He contends that he has no remedy at law and will be irreparably harmed unless the court strikes the fine. ( id. at 6 ¶ 7). Plaintiff demands a declaratory judgment, mandatory injunctive relief, costs, and other relief ( id at 6 ¶¶ 8-12).
The term of imprisonment is also excessive in violation of the Eighth Amendment. (Clemency Pet. 1-2 ¶¶ 1-5). Among other reasons, plaintiff has experienced a positive change of character evidenced by the classes he has taken and the jobs he has performed in prison. ( id. 1; Support. Aff.). While the clemency petition expressly asks for clemency from the Governor, by implication plaintiff seeks by it comparable relief sought with respect to his fine.
II. APPLICABLE LEGAL STANDARDS
A. Frivolity Review
The court must dismiss a case brought in forma pauperis if it determines that the action is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii); see Denton v. Hernandez, 504 U.S. 25, 27 (1992). A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court is not permitted to dismiss a claim as frivolous merely because the supporting allegations seem unlikely to have occurred. Denton, 504 U.S. at 33. The failure to state a claim standard is the familiar one under Fed.R.Civ.P. 12(b)(6). See, e.g., Sewraz v. Nguyen, Civ. Act. No. 3:08CV90, 2010 WL 517898, at *1 (E.D. Va. 10 Feb. 2010).
Under Rule 8 of the Federal Rules of Civil 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 complaint must "state a plausible claim for relief that permit[s] the court to infer more than the mere possibility of misconduct' based upon its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting 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)).
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. Instead, 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 v. Williams, 490 U.S. 319, 327 (1989). 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 ...