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Fullard v. Perry

United States District Court, M.D. North Carolina

April 4, 2018

REGINALD FULLARD, Plaintiff,
v.
FRANK PERRY, et al., Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Reginald Fullard, submitted a pro se complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of North Carolina and requested permission to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). That court granted Plaintiffs in forma pauperis request, established a monthly payment process for Plaintiff to pay the applicable filing fee, and transferred the case to this District for further review.

         Plaintiff names Frank Perry, the former Secretary of the North Carolina Department of Public Safety, Lori Sykes, an attorney for the City of Winston-Salem, and Charles Walker and Donald K. Tisdale, two current or former state court prosecutors, as Defendants. Plaintiff makes no specific allegations as to Perry and Sykes, but alleges that Walker and Tisdale altered a plea agreement which Plaintiff entered in 1985 and, possibly, another agreement in October of 2013. Plaintiff alleges that this resulted in harsher punishment in violation of his constitutional rights. He also claims that his psychological problems and a psychological examination were not considered in 1985. Plaintiff seeks compensatory and punitive damages and the removal of his convictions from 1985.

         Because Plaintiff is "a prisoner seek[ing] redress from a governmental entity or officer or employee of a governmental entity, " this Court has an obligation to "review" this Complaint. 28 U.S.C. § 1915A(a). "On review, the court shall ... dismiss the complaint, or any portion of the complaint, if [it] - (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).

         As to the first basis for dismissal, the United States Supreme Court has explained that "a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). "The word 'frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). As part of this review, the Court may anticipate affirmative defenses that clearly appear on the face of the complaint. Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995) (en banc); Todd v. Baskerville, 712 F.2d 70, 74 (4th Cir. 1983).

         The Supreme Court further has identified factually frivolous complaints as ones involving "allegations that are fanciful, fantastic, and delusional. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal citations and quotation marks omitted). In making such findings, this Court may "apply common sense." Nasim, 64 F.3d at 954.

         Alternatively, a plaintiff "fails to state a claim upon which relief may be granted, " 28 U.S.C. § 1915A(b)(1), when the complaint does not "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief.'"" Id. (quoting Twombly, 550 U.S. at 557). This standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. In other words, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.[1]

         The final ground for dismissal under 28 U.S.C. § 1915A(b)(2) generally applies to situations in which doctrines established by the United States Constitution or at common law immunize governments and/or government personnel from liability for monetary damages. See, e.g Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing sovereign immunity of states and state officials under Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983 and common-law immunity doctrines, such as judicial, legislative, and prosecutorial immunity). Cf Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that, even where "damages are theoretically available under [certain] statutes . . ., in some cases, immunity doctrines and special defenses, available only to public officials, preclude or severely limit the damage remedy").

         For the reasons that follow, the Complaint should be dismissed pursuant to 28 U.S.C. § 1915A(b) because it is frivolous, because it fails to state a claim on which relief may be granted, and because it seeks monetary damages from a defendant with immunity from such relief.

         As an initial matter, it appears that Plaintiff is attempting to undermine at least his convictions from 1985 and possibly also his convictions from 2013. Plaintiff is not permitted to do this without first showing that such convictions have been reversed on direct appeal, expunged by Executive Order, declared invalid by a state tribunal, or, finally, called into question by a federal court through the issuance of a writ of habeas corpus. Heck v. Humphrey. 512 U.S. 477 (1994). Plaintiff fails to do so and, therefore, dismissal is proper for this reason alone.

         Next, the application of the appropriate statute of limitations is an affirmative defense that the Court may consider in this context. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655-56 (4th Cir. 2006) (citing Nasim, 64 F.3d at 955). The statute of limitations in this case is three years. See Wilson v. Garcia. 471 U.S. 261, 276-80 (1985) (holding that, in section 1983 actions, state statute of limitations for personal injury applies); Brooks v. City of Winston Salem. 85 F.3d 178, 181 (4th Cir. 1996) (applying North Carolina's three-year statute of limitations for personal injuries to section 1983 actions); N.C. Gen. Stat § 1-52 (establishing three-year statute of limitations for personal injury). A plaintiffs cause of action accrues, and the statute of limitations runs, from the date on which he "possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action." Nasim, 64 F.3d at 955. Here, any claims raised by Plaintiff accrued in 1985 and/or 2013. Both dates fall far more than three years prior to his filing of the current action and the Complaint should be dismissed for that reason.

         Plaintiff also names at least two current or former prosecutors, Charlie Walker and Donald K. Tisdale, as Defendants and seeks monetary damages from them. However, Prosecutors have absolute immunity for their participation in the judicial process. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). As to the other two Defendants, Frank Perry and Lori Sykes, Plaintiff sets out no factual allegations concerning these Defendants. Plaintiffs complaint should therefore be dismissed in its entirety.

         As a result, Plaintiffs request to proceed in forma pauper is should not be countenanced, with the exception that in forma pauper is status shall be granted for the sole purpose of entering this Order and Recommendation. The payment Order (Docket Entry 5) entered earlier by the United States District Court for the Eastern District of North Carolina will remain in place and take care of any payments of the filing fee in the case.

         IT IS THEREFORE RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A for being frivolous or malicious or for failing to state a claim upon which relief may be granted, as well as for seeking ...


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