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 Amended Complaint, filed under 42 U.S.C.
§ 1983, (Doc. No. 22). Also pending are Plaintiff's
Motion to Request Counsel, (Doc. No. 23), and Motion for Jury
Trial, (Doc. No. 24). Plaintiff is proceeding in forma
pauperis. See (Doc. No. 18).
se Plaintiff Gary Leon Duncan filed this action pursuant
to 42 U.S.C. § 1983. The initial Compliant was dismissed
for multiple facial deficiencies on initial review. (Doc. No.
20). He was granted leave to file an Amended Complaint, which
is now before the Court on initial review. Plaintiff names as
the sole Defendant Avery Mitchell Correctional
Institution's “ N.C. I.G./RNCC Supervisor”
Ronna Romeny McDaniel. (Doc. No. 22 at 1). Plaintiff alleges
that McDaniel violated his constitutional rights by failing
to run, or properly run, an N.C. I.S. search prior to his
release that would have found two active warrants. Upon his
release from Avery Mitchell C.I., Plaintiff 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 lost
his possessions and liberty as a result of McDaniel's
actions, which resulted in mental anguish, depression, and
the “suppression of happ[i]ness….” (Doc.
No. 22 at 5). He has lost weight and teeth, and cannot sleep.
(Doc. No. 22 at 6). He seeks $200, 000 in damages for his
mental illness and lost property. (Doc. No. 22 at 6).
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma
pauperis, the Court must review the Amended 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, the Court must determine whether the
Amended 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
complaint should not be dismissed for failure to state a
claim “unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
pro se complaint must be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); see
also Smith v. Smith, 589 F.3d 736, 738 (4th
Cir. 2009) (“Liberal construction of the pleadings is
particularly appropriate where … there is a pro
se complaint raising civil rights issues.”).
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). A
pro se complaint must still contain sufficient facts
“to raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (the Twombly
plausibility standard applies to all federal civil complaints
including those filed under § 1983). This
“plausibility standard requires a plaintiff to
demonstrate more than a sheer possibility that a defendant
has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal
quotation marks omitted). He must articulate facts that, when
accepted as true, demonstrate he has stated a claim entitling
him to relief. Id.
Federal Rules of Civil Procedure provide that, “[i]n
the complaint the title of the action shall include the names
of all the parties.” Fed.R.Civ.P. 10(a); see Myles
v. United States, 416 F.3d 551 (7th Cir.
2005) (“to make someone a party the plaintiff must
specify him in the caption and arrange for service of
process.”). Although pro se litigants are
entitled to have their pleadings liberally construed,
Haines, 404 U.S. at 520, “[d]istrict judges
have no obligation to act as counsel or paralegal to pro
se litigants, ” Pliler v. Ford, 542 U.S.
body of the Amended Complaint contains allegations against an
individual who is not named as a defendant in the caption as
required by Rule 10(a). This failure renders Plaintiff's
allegations against him nullities. See,
e.g., Londeree v. Crutchfield Corp., 68
F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to
dismiss for individuals who were not named as defendants in
the compliant but who were served).
alleges that McDaniel did not check, or failed to adequately
check, the N.C. I.S. database prior to his release, which
would have revealed two outstanding warrants.
1983 imposes liability on state actors who cause the
deprivation of any rights, privileges or immunities secured
by the Constitution.” Loftus v. Bobzien, 848
F.3d 278, 284 (4thCir. 2017) (quoting Doe v.
Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To
state a claim under § 1983, a plaintiff must allege that
the defendant, acting under the color of law, violated her