United States District Court, M.D. North Carolina
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Webster, United States Magistrate Judge.
a federal prisoner, 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. § l915(a).
Plaintiff names M.D. Martinez, an officer with the
Winston-Salem Police Department, two unnamed homicide
detectives with that Department, the Department itself, and
G. Isenhour, a magistrate in Forsyth County, North Carolina,
as Defendants. Plaintiff claims that between 8:00 p.m. on May
10, 2015, and 4:00 a.m. on May 11, 2015, Martinez and the
homicide detectives illegally chased, arrested, detained, and
questioned him before charging him with misdemeanor
possession of marijuana and taking him before G. Isenhour,
who then set what Plaintiff considers to be an excessive bond
of $16, 000. Plaintiff alleges that these actions caused him
to serve extra time for state and federal probation
violations, to lose certain items of property, and miss the
chance to start a family with his significant other. He seeks
a total of $875, 352, 310 in damages.
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.
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. Butner, 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
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. § 1915A(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.”
final ground for dismissal under 28 U.S.C. § 1915A(b)(2)
generally applies to situations in which doctrines
established by the United States Constitution or at common
law immunize governments and/or government personnel from
liability for monetary damages. See, e.g., Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)
(discussing sovereign immunity of states and state officials
under Eleventh Amendment); Pierson v. Ray, 386 U.S.
547 (1967) (describing interrelationship between 42 U.S.C.
§ 1983 and common-law immunity doctrines, such as
judicial, legislative, and prosecutorial immunity). Cf.
Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982)
(noting that, even where “damages are theoretically
available under [certain] statutes . . ., in some cases,
immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage
reasons that follow, the Complaint should be dismissed
pursuant to 28 U.S.C. § 1915A(b) because it is
frivolous, because it fails to state a claim on which relief
may be granted, and because it seeks monetary damages from a
defendant with immunity from such relief.
initial matter, the Court notes that Plaintiff is attempting
to undermine his state and federal sentences, which he claims
were lengthened by the Defendants' actions. Plaintiff is
not permitted to do this without first showing that
convictions were 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
plaintiff's 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, Plaintiff claims that
the events in the Complaint occurred during a few hours on
May 10th and 11th of 2015, or well more than three years
prior to him filing the present Complaint. Plaintiff would
also have been well aware of the events at the time they
occurred. His entire Complaint can be dismissed for this
Plaintiff names a state court magistrate G. Isenhour, as a
Defendant. However, judges have absolute immunity for their
judicial actions. Stump v. Sparkman, 435 U.S. 349
(1978). Plaintiff's complaint against Defendant Isenhour
should therefore be dismissed for this additional reason.
result, Plaintiff's 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, however, and,
notwithstanding the preceding determination, §
1915(b)(1) requires that he make an initial payment of
$13.33. Failure to comply with this Order will lead to
dismissal of the complaint.
THEREFORE ORDERED that in forma pauperis status be
granted for the sole purpose of entering ...