United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE
March 15, 2016, Kevin Cornilius Cox, Jr., ("Cox" or
"plaintiff"), a state inmate proceeding pro se,
filed a complaint under 42 U.S.C. § 1983 [D.E. 1]
together with several exhibits [D.E. 1-1]. Cox proceeds in
forma pauperis. See [D.E. 2, 9]. On September 22, 2016, the
court reviewed the complaint under 28 U.S.C. § 1915A and
allowed the action to proceed [D.E. 11].
October 18, 2016, defendant White moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(1) and
(6) [D.E. 16]. Pursuant to Roseboro v. Garrison. 528
F.2d 309, 310 (4th Cir. 1975) (per curiam), the court
notified Cox about the motion to dismiss, the consequences of
failing to respond, and the response deadline [D.E. 18]. Cox
missed the deadline of December 8, 2016. See [D.E. 21-22]. On
February 24, 2017, Cox filed a document entitled
"opposition to motion to dismiss" [D.E. 29], which
appears to reply to the answer that defendants McCargo,
Mebane, and Teel filed on February 10, 2017. Cox also moves
"to order defendants to reply or plea." Mot. [D.E.
28] 1. As explained below, the court grants in part defendant
White's motion to dismiss and denies Cox's motion as
"a practicing Muslim" seeking a legal name change
"for religious reasons." Compl. at 4. In 2011, the
North Carolina legislature amended the process for applying
for a legal name change to require an applicant to submit a
criminal history background check with fingerprints.
See Change of Name-Criminal History Record
Information, S .L. 2011-3 03, § 1, eff. June 24, 2011
(codified at N.C. Gen. Stat. § 101-5); see also
[D.E. 1-1] 3 (grievance response). "The clerk shall
instruct the applicant on the process for having fingerprints
taken and submitted for the criminal history record check,
including providing information on law enforcement agencies
or acceptable service providers." N.C. Gen. Stat. §
101-5(b). Cox contacted the Bertie County Clerk of Superior
Court, and defendant White, a deputy clerk, provided him with
the address for the Bertie County Sheriff s Office. See
Compl. at 3; [D.E. 1-1] 1. The Bertie County Sheriff s Office
did not respond to Cox's letter. Compl. at 3. Cox also
made "many request[s]" for assistance to his former
case manager, defendant Teel. Id. Teel spoke with
defendant Mebane, who "said he'll do the
fingerprinting but he got to get permission from [defendant]
Mr. [McCargo]." Id. at 3-4; see [D.E. 1-1] 2.
McCargo "disregarded my/our request... and pointed us in
the direction of Bertie County Clerk of Courts." Compl.
at 4. Cox seeks injunctive relief and monetary damages.
Id. at 4-5.
motion to dismiss under Rule 12(b)(6) for "failure to
state a claim upon which relief can be granted" tests
whether the complaint is legally and factually sufficient.
See Fed.R.Civ.P. 12(b)(6); Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007); Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010), affd, 566
U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008); accord Erickson v. Pardus, 551
U.S. 89, 93-94 (2007) (per curiam). In considering a motion
to dismiss, a court need not accept a complaint's legal
conclusions drawn from the facts. See,
e.g.. Iqbal, 556 U.S. at 678. A court also
"need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 678-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment. See,
e.g., Fed.R.Evid. 201; Tellabs. Inc. v. Makor Issues
& Rights. Ltd., 551 U.S. 308, 322 (2007);
Philips v. Pitt Cnty, Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009).
state a claim under [section] 1983, a plaintiff must allege
the violation of aright 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); see Philips, 572 F.3d at 180. Additionally,
a section 1983 plaintiff must allege the personal involvement
of a defendant. See, e.g,, Iqbal, 556 U.S. at 676;
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
691-92 (1978); Wright v. Collins, 766 F.2d 841, 850
(4th Cir. 1985).
have a constitutional right to reasonable access to state and
federal courts. See, e.g.. Lewis v. Casey,
518 U.S. 343, 350-51 (1996); Ex parte Hull, 312 U.S.
546, 549 (1941); Snyder v. Nolen, 380 F.3d 279, 291
(7th Cir. 2004); Pink v. Lester, 52 F.3d 73, 76 (4th
Cir. 1995). To state a claim for denial of access to the
courts, the inmate must show that the defendant's conduct
either hindered the inmate's efforts to pursue a legal
claim or caused the inmate actual injury. See,
e.g.. Lewis. 518 U.S. at 351-57; Michau v.
Charleston Cty, 434 F.3d 725, 728 (4th Cir. 2006);
Cochran v. Morris. 73 F.3d 1310, 1317 (4th Cir.
1996). The inmate also must show that the defendant acted
intentionally rather than negligently or erroneously. See
Tucker v. I'Jama, 361 F.App'x 405, 407-08
(3d Cir. 2010) (per curiam) (unpublished); Pink. 52
F.3d at 76 ("The inadvertent misrouting of a request
form simply does not implicate the fundamental democratic
principle of the right to petition; namely, that a republican
government not turn a deaf ear to its citizenry.");
Jones v. Buncombe Cty., No. 1:10CV42-1-MU, 2010 WL
1958595, at *4 (W.D. N.C. May 14, 2010) (unpublished).
Moreover, isolated incidents without negative consequences to
the plaintiff do not constitute a constitutional deprivation
of one's rights. See, e.g.. Buie v.
Jones, 717 F.2d 925, 926 (4th Cir. 1983).
does not allege that defendant White intentionally refused to
process his application for a legal name change or interfered
in any way with his attempt to file such an application.
Rather, Cox simply alleges that White responded to his
inquiry about obtaining the fingerprints necessary to file an
application by providing him with the contact information for
the Bertie County Sheriffs Office and informing him that
"the sheriff's office handles" the
fingerprinting process. Compl. at 3;[D.E. 1-1] 1. Therefore,
Cox has failed to state a claim against defendant White.
See Tucker, 361 F.App'x at 407-08; Snyder, 380
F.3d at 291 all; Pink, 52 F.3d at 76: Drumbarger
v. Scott, 861 F.2d720, at*l (6th Cir. 1988) (unpublished
table decision): Doe v. Pence, No.
1:16-cv-02431-JMS- DML, 2017 WL 956365, at *7 (S.D. Ind. Mar.
13, 2017) (unpublished); Jones. 2010 WL 1958595, at
*4. Thus, the court grants White's motion to dismiss for
failure to state a claim.
the court GRANTS IN PART defendant White's motion to
dismiss [D.E. 16] and DISMISSES plaintiffs claims against
White for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). The court DENIES AS MOOT plaintiffs
motion [D.E. 28]. The remaining defendants have until May 31,
2017, to file any further motions.