United States District Court, M.D. North Carolina
REGINALD U. FULLARD, Plaintiff,
TWANDA STALEY, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Webster United States Magistrate Judge
Reginald Fullard, submitted a pro se complaint under 42
U.S.C. § 1983 and requests permission to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a).
Plaintiff names Twanda Staley, "Child Enforcement,
" "Forsyth County Courts Judiciary, " and
"Forsyth County Courts Administrative" as
Defendants in this case. He contends that Defendants violated
his rights under the First Amendment of the United States
Constitution, his rights to family knowledge, his right to
voice, and his right to access to the courts in connection
with child support and parental rights rulings. He seeks
mediation and damages.
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. § l9l5A(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. § l9l5A(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. § l9l5A(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. § l9l5A(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). C£
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
reasons that follow, the Complaint should be dismissed
pursuant to 28 U.S.C. § l9l5A(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 flaw with Plaintiffs claims is that they are barred
by the applicable statute of limitations. 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, Plaintiff
does not list any dates on which the allegations he raises
allegedly occurred. However, the Court takes judicial notice
that its own records include a prior § 1983 Complaint
filed by Plaintiff raising similar allegations against a
similar list of Defendants. See Fullard v. Staley,
No. 1:15CV16 (M.D.N.C). It is clear from reviewing both cases
that they are based on the same set of alleged events. More
importantly, the prior case was filed more than three years
prior to the current case, which means that any claims in the
current case are more than three years old and, therefore,
barred by the statute of limitations. The Complaint can be
dismissed on this basis alone.
prior case also points to a second problem for Plaintiff
because the Court dismissed that case with prejudice for
failing to state a claim upon which relief may be granted.
Not only does Plaintiffs current Complaint fail similarly,
but to the extent that his present filing actually represents
an improper attempt to relitigate his earlier case, his
current case should also be dismissed for that reason.
Plaintiff names "Forsyth County Courts Judiciary"
and "Forsyth County Courts Administrative" as
Defendants. In bringing an action under § 1983,
Plaintiff must name the persons who are actually responsible
for the alleged violations of his constitutional rights.
Those Defendants are not persons. Further, to the extent that
those Defendants could be construed to mean state court
judges or personnel, any claim against them would be
improper. Judges have absolute immunity for their judicial
actions. Stump v. Sparkman, 435 U.S. 349 (1978).
Similarly, court clerks are accorded derivative absolute
immunity when they act in obedience to judicial order or
under the court's direction. See, e.g.,
McCray v. State of Md, 456 F.2d 1 (4th Cir. 1972).
Plaintiff pleads no facts which would, if true, overcome this
immunity and entitle him to relief by showing that court
personnel did not act in accordance with the directions of
the state courts. He cannot seek damages from these
result, Plaintiffs request to proceed in forma
pauperis should not be countenanced, with the exception
that in forma pauperis status shall be granted for
the sole purpose of entering this Order and Recommendation.
has submitted the Complaint for filing and, notwithstanding
the preceding determination, § 1915(b)(1) requires that
he make an initial payment if funds for such a payment exist.
A review of Plaintiff s in forma pauperis
application reveals that such funds do not exist. Therefore,
the Court will not order a partial payment, but will order
that payments be deducted from Plaintiffs prisoner trust
account as funds become available.
THEREFORE ORDERED that in forma pauperis status be
granted for the sole purpose of entering ...