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Ashe v. Amburgey

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

February 26, 2019

KENNETH ASHE, Plaintiff,
J. THOMAS AMBURGEY, et al., Defendants.



         THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1). Plaintiff has moved to proceed in forma pauperis. See (Doc. No. 2).

         I. BACKGROUND

         Pro se Plaintiff is a convicted and sentenced federal prisoner who currently resides in the Edgefield Federal Correctional Institution in Edgefield, South Carolina. He filed this civil rights suit pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) and 42 U.S.C. § 1983 with regards to incidents that allegedly occurred in Asheville, North Carolina.[1] He names as Defendants: BCDC/Sheriff's Office, Assistant Federal Defender Fredilyn Sison, Federal Prosecutor Don Gast, Attorney Stephen Lacey Cash, Attorney J. Thomas Amburgey, Attorney Rodney Gene Hasty, and Federal Probation Officer Jonathan Mason.

         Construing the Complaint liberally and accepting the allegations as true, the incidents involved in the instant case began in 2011 and ended in 2018. The facts underlying the claims are, verbatim: “Tampered evidence caused to receive more time, motional stress. Made me out to be a liar and in compitant in front of the court.” (Doc. No. 1 at 6). His injuries are: “Motional stress - put on medication; Sleep disorder - put on medication; money; family time; more incarceration than the law provides.” (Doc. No. 1 at 6). As relief, Plaintiff seeks $100, 000 and “sentence dismissed/set aside.” (Doc. No. 1 at 6). Plaintiff admits that he did not file grievances with regards to the alleged incidents “[b]ecause Attorney filing is Outside of filing grievance about ineffective counsel and prosecutor misconduct.” (Doc. No. 1 at 9). However, he claims he wrote letter with regards to the incidents that are a part of court records.


         “Section 1983 imposes liability on state actors who cause the deprivation of any rights, privileges or immunities secured by the Constitution.” Loftus v. Bobzien, 848 F.3d 278, 284 (4thCir. 2017) (quoting Doe v. Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To state a claim under § 1983, a plaintiff must allege that the defendant, acting under the color of law, violated his federal constitutional or statutory rights and thereby caused injury. Crosby v. City of Gastonia, 635 F.3d 634, 639 (4th Cir. 2011).

         The purpose of Bivens is to “deter individual federal officers from committing constitutional violations.” Holly v. Scott, 434 F.3d 287, 291 (4th Cir. 2006) (quoting Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)); see also Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (§ 1983 applies only to state actors)). Application of Bivens to private individuals “simply does not find legislative sanction.” Holly, 434 F.3d at 291.

         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.


         The Complaint is too vague, conclusory, and lacking in factual support to state a claim against any of the Defendants in that he fails to explain how they violated his rights under the color of law. See Fed.R.Civ.P. 8(a)(2) (short and plain statement is required); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact are not sufficient); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts, directly or indirectly, that support each element of the claim). Dismissal is warranted on this basis alone.

         Further, Plaintiff has named as Defendants several individuals and entities who are either protected by immunity, are not “persons” subject to suit, or who are private parties against whom this civil rights suit cannot proceed. First, Plaintiff names as a Defendant BCDC/ Sheriff's Office. This entity is not a federal one, so no Bivens claim against it is possible. Nor can this suit proceed against the Sheriff's Office under § 1983 because it is not a “person” under North Carolina law and therefore lacks the capacity to be sued. See, e.g., Moore v. City of Asheville, 290 F.Supp.2d 664, 673 (W.D. N.C. 2003), aff'd, 396 F.3d 385 (4th Cir. 2005) (holding in a § 1983 case that “under North Carolina law, the Asheville Police Department is not a ‘person' and, therefore, lacks the capacity to be sued.”); Wilson v. Fayetteville Police Dep't, 2014 WL 555663 (Feb. 11, 2014) (dismissing § 1983 action for failure to state a claim upon which relief can be granted because the Fayetteville Police Department is not an entity capable of being sued.”); Landry v. North Carolina, 2011 WL 3682788 (W.D. N.C. Aug. 23, 2011) (North Carolina sheriff's department and police department are not legal entities under North Carolina law capable of being sued).

         Plaintiff also names as a Defendant a federal prosecutor, Mr. Gast, who is absolutely immune for acts arising out of the exercise of his official functions. Imbler v. Pachtman, 424 U.S. 409, 418 (1976); see Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993) (prosecutorial immunity applies only to the extent that prosecutors serve as advocates for the State). Plaintiff does not allege any facts that ...

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