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Bess v. Perry

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

June 6, 2017

STERLING BESS, Plaintiff,
v.
FNU PERRY, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on initial review of Plaintiff s pro se Complaint under 28 U.S.C. §§ 1915A and 1915(e).[1] Also before the Court is Plaintiffs motion for extension of time to serve process on Defendants. (Doc. No. 9.)

         I. BACKGROUND

         Plaintiff is a prisoner of the State of North Carolina who, for all relevant times, was incarcerated at Alexander Correctional Institution ("ACI"). He filed this action on December 22, 2016, pursuant to 42 U.S.C. § 1983. Plaintiff has named FNU Perry, a Correctional Officer at ACI, Susan White, the Superintendent of ACI, and Eric Dye, the Assistant Superintendent of ACI, as Defendants. Plaintiffs action against Defendants is based on the following factual allegations:

On 10-4-16 at [ACI] my personal property was taken without my authorization to proceed in the actions, thereby committing larceny and violating the 4th Amendment and Administrational Due Process. Mr. Perry who is a [sic] officer did all the above in the eyes of my peers and other co-workers, while Ms. Susan White and Mr. Eric Dye allowed the evil actions without Due Process of law or under the authority of law.

(Compl. 3, Doc. No. 1.) Plaintiff seeks compensation for his property. (Compl. 5.)

         II. STANDARD OF REVIEW

         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "frivolous or malicious [or] fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915 A the Court must conduct an initial review and identify and dismiss the Complaint, or any portion of the Complaint, if it is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune to such relief.

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

         III. DISCUSSION

         Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

42 U.S.C. § 1983. For the reasons that follow, Plaintiff has failed to state a claim upon which relief may granted under § 1983.

         As an initial matter, Plaintiff cannot state a claim under the Fourth Amendment because, as an incarcerated state prisoner, he has no reasonable expectation of privacy under the Fourth Amendment. See Hudson v. Palmer, 468 U.S. 517, 530 (1984) (holding that prison inmates do not have reasonable expectations of privacy within prison cognizable under the Fourth Amendment). In ...


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