United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
WEBSTER UNITED STATES MAGISTRATE JUDGE
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
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
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).
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.
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.
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,
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."
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").
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.
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.
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
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.
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.
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 ...