United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of
Plaintiff's Complaint, filed under 42 U.S.C. § 1983,
(Doc. No. 1). Also pending are Plaintiff's Motion for
Jury Trial, (Doc. No. 15), and Motion to Appoint Counsel,
(Doc. No. 19). Plaintiff is proceeding in forma
pauperis. See (Doc. No. 18).
se Plaintiff Gary Leon Duncan is a pretrial detainee
currently incarcerated at the New River Valley Regional Jail
in Dublin, Virginia. He filed this action on August 7, 2017,
pursuant to 42 U.S.C. § 1983. He names as Defendants:
Avery Mitchell Correctional Institution; “ N.C.
I.G./RNCC Supervisor” Ronna Romeny McDaniel; Warden
Mike Bell; and Head Administrator Jeff Mackvick. (Doc. No. 1
at 1). Plaintiff alleges that he served a North Carolina
criminal sentence at the Avery Mitchell Correctional
Institution and, before he was released, he asked whether an
N.C. I.S. search was done to make sure he has no pending
charges that would hinder his release. He received no
response. Upon his release from Avery Mitchell C.I., he got a
job and a home, which he furnished. Seven months after his
release, he was pulled over on a traffic violation and was
arrested on an outstanding fugitive warrant from August 30,
2013. He told the officer that the warrant must have been a
mistake because the Department of Public Safety had cleared
him of all charges. The warrant was active while Plaintiff
was at Avery Mitchell C.I. The institution's negligent
“failures” and “policies and procedures
violated [his] liberties and rights” and resulted in
Plaintiff losing “everything [he] had accomplished and
all [his] property, money that was invested … [and]
personal belongings” amounting to several thousands of
dollars. (Doc. No. 1 at 2). He alleges that the negligent
actions of one or more Defendants deprived him twice of his
life, liberty and property. He seeks “mental illness
and computation for all property lost in the amount(s) of
$120, 000” and “administrative punishments”
of the named officials. Plaintiff seeks a jury trial. (Doc.
September 27, 2017, Plaintiff filed a motion alleging that
this matter is “ripe” and that he would like
legal counsel to represent him going forward. (Doc. No. 19).
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 “(i) frivolous
or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). 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). A pro se complaint must be construed
liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will
not permit a district court to ignore a clear failure to
allege facts in his Complaint 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).
under § 1983 are directed at “persons”
acting under the color of state law who violated the
plaintiff's constitutional rights. 42 U.S.C. § 1983.
A party's capacity to be sued is determined by the law of
the State in which the District Court resides. Fed.R.Civ.P.
17(b). Under North Carolina law, unless a statute provides to
the contrary, only persons in being may be sued.
McPherson v. First & Citizens Nat'l Bank of
Elizabeth City, 240 N.C. 1, 18, 81 S.E.2d 386 (1954).
North Carolina law provides that “[t]he Department of
Correction is a state agency created for the performance of
essentially governmental functions, and a suit against this
department is a suit against the State.” Harwood v.
Johnson, 326 N.C. 231, 238, 388 S.E.2d 439, 443 ((citing
Pharr v. Garibaldi, 252 N.C. 803, 115 S.E.2d 18
(1960)); Thigpen v. Cooper, 739 S.E.2d 165 ( N.C.
Ct. App. 2013) (the State is not a “person” for
purposes of § 1983, and thus cannot be sued under that
Mitchell C.I. is not a “person” under § 1983
because a suit against it is a suit against North Carolina,
and sovereign immunity has not been waived. See
Harwood, 326 N.C. at 238.
claims against the other Defendants are too vague and
conclusory to proceed. Plaintiff states no facts whatsoever
with regards to any of these Defendants. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”);
see Fed.R.Civ.P. 8(a)(2) (a pleading must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.”). His vague
references to negligence and “policies and
procedures” fail to state how any of the Defendants
violated Plaintiff's constitutional rights; their
supervisory roles alone are an insufficient basis for §
1983 liability. See generally Monell v. Dep't. of
Soc. Servs., 436 U.S. 658, 688 & n.55 (1978)
(stating that under § 1983, liability is personal in
nature, and the doctrine of respondeat superior does not
apply); King v. Rubenstein, 825 F.3d 206, 223-24
(4th Cir. 2016).
Plaintiff's Complaint suffers from numerous deficiencies,
he must amend his complaint or this action will be subject to
dismissal without prejudice and without further notice to
Plaintiff. Plaintiff's amended complaint must be on the
required form and comply with all applicable rules and
procedures. Plaintiff is cautioned that the amended complaint
will supersede the original complaint so it must complete in
and of itself. Plaintiff may not amend the complaint
“piecemeal” by adding onto what he has already
alleged in the original complaint. In his amended complaint,
Plaintiff must allege how each individual Defendant violated
his constitutional rights. The Court will instruct the Clerk
to mail Plaintiff a new Section 1983 form for Plaintiff to
submit an amended complaint, if he so wishes.