United States District Court, W.D. North Carolina, Asheville 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 moved
to proceed in forma pauperis. See (Doc. No.
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. 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.
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
STANDARD OF REVIEW
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).
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
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)).
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.
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.
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).
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 ...