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Garner v. Carteret County District Attorney

United States District Court, E.D. North Carolina, Western Division

July 17, 2017

TERRY FRANKLIN GARNER, Plaintiff,
v.
CARTERET COUNTY DISTRICT ATTORNEY, et al., Defendants.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On September 7, 2016, Terry Franklin Garner ("Garner" or "plaintiff'), a state inmate proceeding pro se and in forma pauperis [D.E. 2, 9], filed a complaint pursuant to 42 U.S.C. § 1983 seeking monetary damages for libel and slander [D.E. 1]. Garner also filed motions to amend his complaint [D.E. 18], for discovery [D.E. 6, 7, 10 14, 15], to proceed without paying any fees [D.E. 11], to transfer him to a different facility [D.E. 16], and to expedite his section 1983 action [D.E. 17, 19].

         On May 11, 2017, Magistrate Judge Numbers issued a Memorandum and Recommendation ("M&R") [D.E. 23] recommending that the district court deny the motion for transfer to a different facility [D.E. 16] and dismiss the complaint [D.E. 1]. Judge Numbers denied the remainder of Garner's motions [D.E. 6, 7, 10, 14, 15, 11, 17, 18, 19]. On May 30, 2017, Garner objected to the M&R [D.E. 25].

         "The Federal Magistrates Act requires a district court to make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made." Diamond v. Colonial Life & Accident Ins.Co..416F.3d310.315 (4th Cir. 2005) (alterations, emphasis, and quotation omitted). See 28 U.S.C. § 636(b). Absent atimely objection, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond. 416 F.3d at 315 (quotation omitted).

         The court has reviewed the M&R, the record, and Garner's objections. As for those portions of the M&R to which Garner made no objection, the court is satisfied that there is no clear error on the face of the record.

         Garner first argues that he lacks understanding of the law and "feels the court is taking advantage of [his] ignorance of... the law." Obj. [D.E. 25] 1. Although a court must liberally construe a pro se plaintiffs allegations, it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing. LP. 867 F.Supp.2d 766, 776 (E.D. N.C. 2011): see Mitchell v. N.C. Div. of Emp't Sec. 76 F.Supp.3d 620, 624 (E.D. N.C. 2014). "The 'special judicial solicitude' with which a district court should view... pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dep'tof Soc. Servs.. 901 F.2d387, 391 (4th Cir. 1990). "Every party-pro se or otherwise- must comply with the Federal Rules of Civil Procedure." Mitchell. 76 F.Supp.3d at 624; seeAshcroftv.Iqbal. 556 U.S. 662, 678 (2009); Ericksonv.Pardus. 551 U.S. 89, 93 (2007).

         In his complaint, Garner alleged that defendant Carteret County District Attorney libeled and slandered him by "profil[ing] [him] as a pedophile" at his first appearance in district court on drug charges. See Compl. [D.E. 1] 5. Garner objects to Judge Numbers's denial of his motion to amend his complaint to add the district court judge in his criminal case as a defendant in this action. Obj. [D.E. 25] 2. Judge Numbers correctly denied the motion on the ground that "judges have absolute immunity from a claim for damages arising out of their judicial actions." M&R [D.E. 23] 3; see Mirelesv.Waso. 502 U.S. 9, 11-13 (1991) (per curiam); Stump v. Sparkman. 435 U.S. 349, 355-56 (1978); Presslvv. Gregory. 831 F.2d 514, 517 (4th Cir. 1987); Chu v. Griffith. 771 F.2d 79, 81 (4th Cir. 1985). Garner complains that he did not seek "to add the judge, " but only "ask[ed] could he add the judge to the litigation." Obj. at 2. The court's answer to Garner's question is "no." Garner cannot add the judge to this litigation. Thus, this objection is overruled.

         Next, Garner objects to Judge Numbers's conclusion that the Eleventh Amendment bars bis claim for monetary damages against the State of North Carolina. Id. Judge Numbers correctly concluded that North Carolina is immune from liability under section 1983. M&R at 4; see Will v. Mich. Den't of State Police. 491 U.S. 58, 71 (1989); Edelman v. Jordan 415 U.S. 651, 663 (1974). Garner complains that he did not intend to sue the State, only the District Attorney. Obj. at 2. However, Judge Numbers correctly concluded that the principle of absolute immunity also applies to prosecutors when carrying out prosecutorial functions. M&R at 4; see Van de Kamp v. Goldstein. 555 U.S. 335, 342-43 (2009); Buckley v. Fitzsimmons. 509 U.S. 259, 269-70 (1993); Tmbler v. Pachtman. 424 U.S. 409, 431 (1976). Thus, Judge Numbers correctly concluded that Garner had not named any defendant amenable to suit. M&R at 4. Thus, this objection is overruled.

         Finally, Garner contends that he should be able to sue defendants for defaming him and thereby violating his constitutional rights. Obj. at 3. However, there is no federal constitutional right to be free from defamation or slander. M&R at 5; see Paul v. Davis. 424 U.S. 693, 711-13 (1976). Thus, this objection is overruled.

         In sum, the court OVERRULES plaintiffs objections [D.E. 25], ADOPTS the conclusions in the M&R [D.E. 23], DISMISSES the complaint, and DENIES the motion for a ...


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