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Allen v. Buncombe County

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

September 29, 2017

KEITH ERWIN ALLEN, Plaintiff,
v.
BUNCOMBE COUNTY, NORTH CAROLINA, Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court on initial review of Plaintiff's Complaint, filed pursuant to 42 U.S.C. § 1983. See 28 U.S.C. § 1915(e). (Doc. No. 1).

         I. BACKGROUND

         Pro se Plaintiff Keith Erwin Allen is a pre-trial detainee currently incarcerated at the Buncombe County Detention Center in Asheville, North Carolina.[1] The North Carolina Department of Public Safety website shows that on May 11, 2011, Plaintiff was convicted, in Buncombe County, North Carolina, of common law robbery and of being a habitual felon. He served his prison sentence and was released from prison on May 21, 2015. Plaintiff filed this action on May 15, 2017, pursuant to 42 U.S.C. § 1983, naming as the sole Defendant “Buncombe County, North Carolina.” In the Complaint, Plaintiff alleges the following:

On 8-5-2009 the Plaintiff received 2 81-207 month sentences to run consecutively. On 5-11-2011, the Plaintiff was granted a motion for appropriate relief ordering Plaintiff to be re-sentenced on the 2 81-107 month sentences. On 5-11-2011 the Plaintiff was re-sentenced to 4 consecutive terms of 21-26 months. The Plaintiff completed the sentence imposed by the court and was released from North Carolina Department of Corrections on 5-21-2015.
The Plaintiff believes that the district attorney for the Court acted maliciously and with intent when sentencing the Plaintiff to 4 consecutive 21-26 month terms at a Level V. The Plaintiff believes he should have been sentenced to 4 consecutive terms of 13-17 months as a Level III. Costing the Plaintiff several months of his lifetime that may never be replaced.

See (Doc. No. 1 at 3-4). As to his purported legal claims, Plaintiff alleges that his Fifth Amendment and Fourteenth Amendment due process rights were violated, and that he is being subjected to cruel and unusual punishment in violation of the Eighth Amendment. (Id. at 4). For relief, Plaintiff seeks “a declaration that the acts and omissions describe[ed] herein violate[] his rights under the Constitution and the laws of the United States, ” an “injunction ordering that the Plaintiff be re-sentenced under the correct prior record level, ” and compensatory and punitive damages. (Id. at 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). In its frivolity review, this Court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

         III. DISCUSSION

         The Court will dismiss this action without prejudice. The only named Defendant in this action is Buncombe County, North Carolina. Buncombe County is a “person” under Section 1983 and may be held liable for violating Plaintiff's federal rights only if its policies or customs caused the violation. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). The Complaint alleges individual misconduct by the district attorney who prosecuted Plaintiff on re- sentencing, but nowhere does it identify any county policy or custom that caused Plaintiff's injury.[2] Moreover, the trial judge, not the prosecutor, was the person who sentenced Plaintiff. In sum, Buncombe County is simply not a properly named Defendant in this action, and Plaintiff's Complaint will therefore be dismissed without prejudice.[3]

         IV. CONCLUSION

         For the reasons stated herein, the Court dismisses this action. The action will be dismissed without prejudice.

         IT IS, ...


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