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Shine v. Charlotte Mecklenburg Police Department

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

June 11, 2018

KERRY ADAM SHINE, JR., [1] Plaintiff,



         THIS 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).

         I. BACKGROUND

         Pro 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).


         Because 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)).

         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.


         (1) Parties

         (A) Individuals Not Named As 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 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.[2]


         In 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 ...

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