United States District Court, M.D. North Carolina
REGINALD U. FULLARD EL BEY, Plaintiff,
CPL. B. VALENTINE, et al., Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Webster United States Magistrate Judge
Reginald Underwood 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 Corporal B. Valentine, C.K.
Robertson, Lori Sykes, and Lismar Bosques as Defendants.
Plaintiffs claims are unclear, but all relate to an incident
that led to his arrest on May 10, 2012, and to subsequent
criminal convictions. He seeks to challenge the convictions,
be released, receive damages, and have seized firearms
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. Burner, 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."
reasons that follow, the Complaint should be dismissed
pursuant to 28 U.S.C. § l9l5A(b) because it is frivolous
and because it fails to state a claim on which relief may be
initial matter, the Court notes that Plaintiff is attempting
to undermine some of his criminal convictions. 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,
the events set out in the Complaint allegedly occurred in
2012. The Complaint is filed several years out of time and
is, therefore, barred by the applicable statutes of
limitations. It should be dismissed for this reason as well.
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 for ma 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 this Order and
FURTHER ORDERED that Plaintiffs trust officer shall be
directed to pay to the Clerk of this Court 20% of all
deposits to his account starting with the month of June of
2018, and thereafter each time that the amount in the account
exceeds $10.00 until the $350.00 filing fee has been paid.
RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915A for being frivolous or malicious or for