United States District Court, W.D. North Carolina, Statesville Division
DERRICK D. BOGER, Plaintiff,
ROY COOPER, et al., Defendants.
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of
Plaintiff's pro se Complaint under 28 U.S.C. §§
1915A and 1915(e). (Doc. No. 1.) Also before the Court is
Plaintiff's Application to Proceed in District Court
without Prepaying Fees or Costs (Doc. No. 2), which shall be
is a prisoner of the State of North Carolina who has named
Roy Cooper, Governor of North Carolina, W. David Guice,
identified as Commissioner of Prisons, George T. Solomon,
identified as Director of Prisons, and Susan White,
identified as Superintendent of Alexander Correctional
Institution, as Defendants. Plaintiff alleges that:
[Defendants] all could have stop [sic] ¶ 4th Amendment
violation of openly seen larceny do [sic] to the fact
Plaintiff was in no contract to allow state officials to
enter into his trust fund account on 3/27/2015 at Scotland
Correctional, [on] 12/14/2013, 12/10/2013, 10/4/2013,
10/8/2012, [and] 10/9/2009 at Albemarle Correctional, [on]
8/22/2009, 3/21/2009, 11/15/2008, [and] 7/21/2007 at Brown
Creek Correctional, [and on] 7/13/2007, 6/6/2005, [and]
8/16/2004 at Alexander Correctional and seize funds out of my
trust fund account for infractions breaching their legal
duties and abusing their authority and causing excessive
punishment, 8th Amendment USA Con. violations and forcing me
to suffer double jeopardy, 5th Amendment USA Con. violations
in the eyes of the public[.]
4, Doc. No. 1.) Plaintiff seeks monetary compensation and an
injunction prohibiting Defendants from removing any funds
from Plaintiff's prison trust account without first
signing a contract with Plaintiff allowing them to do so.
STANDARD OF REVIEW
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 § 1915A 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.
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 plaintiff's 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). For the reasons that follow,
Plaintiff's Complaint shall be dismissed.
order to state a viable claim under 42 U.S.C. § 1983, a
plaintiff must allege that a person acting under color of
state law deprived him or her of a constitutional right or of
a right conferred by a law of the United States. See Dowe
v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C. § 1983).
Plaintiff's Complaint appears to relate to the North
Carolina Department of Public Safety's
(“NCDPS”) system of punishments for inmate
disciplinary infractions. See
DisciplinaryOffensesHandout ( N.C. Dep't of Public Safety
April 1, 2014),
listing-current-offenses-punishments-and-administrative-fees.pdf. Among the authorized
punishments for various infractions is a limited draw from
the inmate's prison trust account. Id. at 2.
Plaintiff views the removal of funds from his prison trust
account for various infractions as unconstitutional because
he does not have a contract with state officials that allows
them to remove funds from his prison account.
Complaint suffers from numerous deficiencies. As an initial
matter, it is not consistent with Rules 18 and 20 of the
Federal Rules of Civil Procedure, regarding joinder of claims
and parties. Rule 18(a) only allows a plaintiff to join
either “as independent or alternative claims, as many
claims as it has against an opposing party.”
Fed.R.Civ.P. 18(a). Rule 20 allows the joinder of several
parties only if the claims arose out of the same transaction
or occurrence, or series thereof, and contain a question of
fact or law common to all the defendants. Fed.R.Civ.P.
20(a)(2). Here, Plaintiff alleges unconstitutional removal of
funds from his trust account occurring on multiple dates, in
different years, at different NCDPS institutions, and for
different infractions, whereas Defendant White, for example,
is alleged to have had supervisory authority over only one of
the institutions involved.
the Eleventh Amendment of the United States Constitution bars
suits in federal court against the State. Alden v.
Maine, 527 U.S. 706, 729 (1999). “[A]n
unconsenting State is immune from suits brought in federal
courts by her own citizens as well as by citizens of another
State.” Edelman v. Jordan, 415 U.S. 651, 663
(1974). Immunity extends not only to the State, but also to
“arm[s] of the State [, ]” including state
officers. Mt. Health City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 280 (1977). While
acting in their official capacity, state officers are
entitled to Eleventh Amendment immunity because “a suit
against a state official in his or her official capacity is
not a suit against the official but rather is a suit against
the official's office, ” and “[a]s such, it
is no different from a suit against the State itself.”
Will v. Michigan Dep't of State Police, 491 U.S.
58, 71 (1989).
present case, all of the named Defendants are sued in their
official capacities for failing to “stop [sic] ¶
4th Amendment violation of openly seen larceny” of
funds from Plaintiff's prison trust account and
“breaching their legal duties and abusing their
authority.” (Comp. 4.) The Eleventh Amendment forbids