United States District Court, W.D. North Carolina, Asheville Division
ADAM W. HALL, Plaintiff,
SAINT TAPP, Defendant.
D. Whitney, Chief United States District Judge.
MATTER is before the Court on initial review of
pro se Plaintiff's Amended Complaint, (Doc. No.
7). Plaintiff is proceeding in forma pauperis. (Doc.
se Plaintiff filed a civil rights suit pursuant to 42
U.S.C. § 1983 while incarcerated at the Marion
Correctional Institution. He names as the sole Defendant
Assistant Unit Manager Saint Tapp in his official capacity.
construing the Complaint and accepting the allegations as
true, Defendant Tapp exceeded his authority by taking
Plaintiff's religious items. On June 21, 2018, Tapp had
Sergeant Morange take Plaintiff to segregation for praying
and burning incense. Tapp went into Plaintiff's cell and
took two bottles of oil and a black kufi which are
“religious items for [Plaintiff].” (Doc. No. 7 at
4). Plaintiff alleges that this caused mental and spiritual
injuries. Plaintiff seeks $20.96 for the items that were
taken and $100 for “pain and suffering.” (Doc.
No. 7 at 5).
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.
body of the Complaint contains allegations against an
individual who is not named as a defendant in the caption as
required by Rule 10(a). This failure renders Plaintiff's
allegations against him 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). The allegations directed
at an individual not named as a defendant are therefore
dismissed without prejudice.
Eleventh Amendment bars suits directly against a state or its
agencies, unless the state has waived its immunity or
Congress has exercised its power under § 5 of the
Fourteenth Amendment to override that immunity. Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66
(1989). “[A]n official capacity suit is, in all
respects other than name, to be treated as a suit against the
entity.” Kentucky v. Graham, 473 U.S. 159, 166
(1985). Therefore, a lawsuit against an officer in his
official capacity is, in substance, a claim against the
governmental entity and should be subject to the same
analysis. See Almone v. City of Long Beach, 478 F.3d
100, 106 (2d Cir. 2007); see Hutto v. S.C. Retirement
Sys., 773 F.3d 536, 549 (4th Cir. 2014)
(State officials sued in their official capacities for
retrospective money damages have the same sovereign immunity
accorded to the State). Congress has not imposed § 1983
liability upon states, and the state of North Carolina has
done nothing to waive its immunity. Bright v.
McClure, 865 F.2d 623, 626 (4th Cir. 1989)
(citing McConnell v. Adams, 829 F.2d 1319, 1328
(4th Cir. 1987)).
seeks damages against Defendant Tapp solely in his official
capacity. (Doc. No. 7 at 2). Plaintiff's claims against
Defendant for damages under § 1983 in his official
capacity are equivalent to a suit against the State and is
barred by the Eleventh Amendment. See generally
Will, 491 U.S. at 66; Graham, 473 U.S. at 166;
see, e.g., Hutto, 773 F.3d at 549.
Therefore, no damages are available on Plaintiff's §
Plaintiff's claim that Defendant Tapp failed to return
his property after he caught him burning incense is not
cognizable because Plaintiff has adequate post-deprivation
remedies under North Carolina law. See Hudson v.
Palmer, 468 U.S. 517 (1984); Parratt v. Taylor,
451 U.S. 527 (1981), overruled on other grounds by
Daniels v. Williams, 474 U.S. 327 (1986)); ...