United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on initial review of
Plaintiff's Complaint. (Doc. No. 1). Plaintiff has filed
an application to proceed in forma pauperis. (Doc. No. 2).
Also pending is Plaintiff's Motion to Serve Defendant
Tort Claim Notice. (Doc. No. 4).
addressing Plaintiff's claims, the Court notes that it
has considered Plaintiff's inmate trust fund account
statement and finds that Plaintiff has no funds or inadequate
funds available from which to assess an initial partial
filing fee. See (Doc. No. 3). Therefore, the payment
of an initial partial filing fee is waived. However,
Plaintiff is still liable for the full filing fee and is
directed to pay this fee by monthly payments in accordance
with this order. In accordance with 28 U.S.C. §
1915(b)(2), the correctional facility where Plaintiff is
incarcerated is required to deduct monthly payments of 20% of
the preceding month's income credited to Plaintiff's
trust fund account each time the amount in the account
exceeds $10.00. These monthly payments are to be sent to the
Clerk of Court for the United States District Court for the
Western District of North Carolina until the statutory fee of
$350.00 is paid in full.
Plaintiff Walter Timothy Gause is a prisoner of the State of
North Carolina, currently incarcerated at Tabor Correctional
Institution in Tabor City, North Carolina. The North Carolina
Department of Public Safety website indicates that Plaintiff
was convicted on February 21, 2014, in Mecklenburg County
Superior Court of robbery with a dangerous weapon, and he was
sentenced to 22 years in prison.
filed this action on July 10, 2018, pursuant to 42 U.S.C.
§ 1983, naming the following four persons as Defendants:
(1) Andrew Murray, identified as the district attorney for
Mecklenburg County; (2) Michael Chin, identified as an
assistant district attorney for Mecklenburg County; (3) Glen
Cole, identified as an assistant district attorney for
Mecklenburg County; and (4) Curtis Dreggens, identified as a
detective with the Mecklenburg County Police Department.
(Doc. No. 1 at 3). Plaintiff appears to be bringing a claim
against Defendants for wrongful conviction and prosecutorial
misconduct, asserting the following factual allegations in
his “Statement of Claim”:
Each Defendant. Judicial courts prosecutor and [detective] of
law enforcement dept. upon misconduct collusion and
constitution[al] violation. Mr. Gause civil liberty right
conspiracy. And injury Mr. Gause. By fraud on court, and
fraudulent misrepresentation of evidence, at trial, result in
unlawful wrongful unconstitutional conviction, false
imprisonment, and edit and tamper with video surveillance,
entry at trial cause[d] a fundamental miscarriage of justice,
due to fraud intrinsic extrinsic [unintelligible] perjury.
(Id. at 3-4). For relief, Plaintiff seeks, among
other things, $100 million in damages against Defendants and
an order overturning his conviction. (Id. at 4-5).
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to
dismissal on the grounds that it is “frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity, ” and the court must identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if
the complaint is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief.
frivolity review, this 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). Furthermore, a
pro se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts 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).
Heck v. Humphrey, 512 U.S. 477 (1994), the United
States Supreme Court held as follows:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that
has not been so invalidated is not cognizable under §
1983. Thus, when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. But if the ...