United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
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].
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].
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
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.
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).
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
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
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.
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 ...