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, (Doc. No. 1). Plaintiff is
proceeding in forma pauperis. (Doc. No. 10). Also pending is
Plaintiff's Motion to Appoint Counsel, (Doc. No. 3).
Plaintiff Liberty B. Ellis (aka “Liberty
Thompson”) is a prisoner of the State of North
Carolina, currently incarcerated at Southern Correctional
Institution in Troy, North Carolina. The North Carolina
Department of Public Safety website indicates that Plaintiff
was convicted on March 22, 2017, in Henderson County Superior
Court of attempted drug trafficking. Plaintiff was sentenced
to six years and six months of imprisonment.
filed this action on February 14, 2018, pursuant to 42 U.S.C.
§ 1983, naming ten individuals as Defendants, including
the Henderson County Sheriff and several of his officers;
Plaintiff's court-appointed attorney in the underlying
criminal action; the district attorney who prosecuted the
charges against Plaintiff; and several Henderson County
detectives who investigated the criminal case. (Doc. No. 1 at
2). In the Complaint, Plaintiff challenges Defendants'
conduct leading up to her criminal conviction, and she
purports to bring the following legal claims: false
arrest/false imprisonment; due process violations;
slander/defamation of character; ineffective assistance of
counsel; Fourth Amendment/illegal search and seizure; breach
of contract; cruel and unusual punishment; prosecutorial
misconduct, in the form of selective and malicious
prosecution; and misuse of public office. (Id. at
11). In her claim for relief, Plaintiff seeks, among other
things, damages against Defendants and an order overturning
her conviction. (Id. at 12).
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,
§ 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” and the court must identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint 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 from such relief.
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). Furthermore, 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 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).
Heck v. Humphrey, 512 U.S. 477 (1994), the United
States Supreme Court held as follows:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under §
1983. Thus, when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the
plaintiff's action, even if successful, will not
demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed
to proceed, in the absence of some other bar to the suit.
Id. at 486-87 (footnotes omitted; emphasis added).
Here, given the allegations in the Complaint, a judgment in
Plaintiff's favor would necessarily imply the invalidity
of her conviction or sentence. Plaintiff has not alleged,
however, that her underlying conviction has been reversed or
otherwise invalidated. Indeed, she has alleged that her
conviction has not been reversed, and she seeks to have her
conviction “overturn[ed] and expunge[ed].” (Doc.
No. 1 at 12). Therefore, her claims are barred by
for the reasons stated above, the Court will dismiss this
action without prejudice. IT ...