Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Duncan v. Avery Mitchell Correctional Institution

United States District Court, W.D. North Carolina, Asheville Division

May 14, 2018

GARY LEON DUNCAN, Plaintiff,
v.
AVERY MITCHELL CORRECTIONAL INSTITUTION, et al., Defendants.

          ORDER

          FRANK D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.

         THIS 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).

         I. BACKGROUND

         Pro 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).

         II. STANDARD OF REVIEW

         Because 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)).

         A 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.

         III. DISCUSSION

         (1) Unnamed Defendants

         The 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. 225 (2004).

         The 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).

         (2) Defendant McDaniel

         Plaintiff 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.

         “Section 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 ยง 1983, a plaintiff must allege that the defendant, acting under the color of law, violated her federal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.