United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY JUDGE
MATTER is before the Court on initial review of
pro se Plaintiff's Complaint, (Doc. No. 1).
Plaintiff is proceeding in forma pauperis.
See (Doc. No. 5). A letter addressing the filing fee
is also before the Court for consideration. (Doc. No. 9).
se Plaintiff has filed a civil rights suit pursuant to
42 U.S.C. § 1983 that Plaintiff filed while incarcerated
at the Dan River Prison Work Farm. He names as Defendants the
Charlotte Mecklenburg Police Department (“CMPD”),
and CMPD Officers Joshua O. Baswell, Christopher Greene,
Christopher P. Miranda, and Luke E. Amos. Liberally
construing the Complaint and accepting the allegations as
true, the Defendant officers arrested Plaintiff in violation
of the Fourth Amendment, failed to conduct an adequate
investigation, perjured themselves in justifying his arrest
and initiating his prosecution, and exceeded the scope of a
search warrant. He seeks $25 million for pain and suffering
including the loss of his liberty, the expungement of his
charges, the review of his motion for discovery which will
reveal flaws that the State of North Carolina has overlooked,
costs and fees, and “whatever else you all see
fit.” (Doc. No. 1 at 4).
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma
pauperis, the Court must review the 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, a 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). 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.
Individuals Not Named As Defendants
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 Complaint contains allegations against
individuals who are not named as defendants in the caption as
required by Rule 10(a). This failure renders Plaintiff's
allegations against them 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). Plaintiff is granted
leave to file an amended complaint within 14 days of this
Order by properly naming any such individuals in the caption
of the Amended Complaint.
order to successfully allege a violation of 42 U.S.C. §
1983, a plaintiff must show that a “person”
acting under the color of state law violated his
constitutional rights. “The capacity of a governmental
body to be sued in the federal courts is governed by the law
of the state in which the district court is held.”
Avery v. Burke Cnty., 660 F.2d 111, 114
(4th Cir.1981) (citing Fed.R.Civ.P. 17(b)). In
North Carolina, in the absence of a statute, “the
capacity to be sued exists only in persons in being.”
McPherson v. First & Citizens Nat. Bank of Elizabeth
City, 81 S.E.2d 386, 397 ( N.C. 1954). Therefore,
departments of municipalities are not susceptible to suit
without statutory authorization. See Martin v.
Mecklenburg Cnty. Park & Recreation Dep't, 2006
WL 3780418 at *2 (W.D. N.C. Dec. 20, 2006) (departments of
cities cannot be sued alone). “In North Carolina, there
is no statute authorizing suit against a police