United States District Court, E.D. North Carolina, Western Division
ORDER & MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.
police officer from the Town of Apex arrested Plaintiff Jamie
Lee McDonald based upon what he claims was a false police
report. McDonald now maintains that the person who filed the
allegedly false report, the officer involved in his arrest,
and the officials he complained to about his arrest are
liable for a violation of his constitutional rights. But the
district court should dismiss his complaint for two reasons.
First, McDonald has not alleged that the officers, who he has
sued in their official capacity alone, were acting pursuant
to an official policy or custom of the Town of Apex. And,
second, he cannot maintain a § 1983 action against the
person who filed the allegedly false police report against
him because that individual is not a state actor.
claims that Defendant Blake Alan Pokopec falsely told police
that McDonald stole a 2004 Toyota Prius from him when, in
fact, McDonald purchased the car from him 9 days earlier.
Compl. at 5, D.E. 1-1. Apex Police Officer Sites showed up at
McDonald's home to arrest him some time later.
Id. Although McDonald claimed to have paperwork in
his house that would have exonerated him, Sites arrested him
contacted Sites's “superiors to inform them of his
behavior and the violation” of his constitutional
rights, but they responded with “contempt”
towards him. Id.
McDonald “filed a formal complaint” with Apex
Police Captain Blair Myhand about Sites's conduct.
Id. Myhand responded that “the case was
investigated and closed[.]” Id.
McDonald then “filed a complaint with the Internal
Affairs Section.” Id. But he later received a
letter from Myhand telling him that his allegation were
unproven and the matter was closed. Id.
appealed Myhand's decision to Apex Town Manager Drew
Havens. Id. Havens agreed with Myhand. Id.
to McDonald, the defendants have violated his rights under
the Fourth, Fifth, and Fourteenth Amendments to the
Constitution. He has sued Sites, Myhand, and Havens, who he
claims acted under the color of state and local law, in their
official capacities. Id. at 4. Apex Chief of Police
John Letteney is also named as a defendant in his official
capacity. Id. at 3. McDonald has sued Pokopec in his
individual capacity. Id. at 4.
asks the court to allow him to proceed with his action
without paying the required filing fee and other costs
associated with litigation (colloquially known as proceeding
in forma pauperis or IFP). The court may grant his request if
he submits an affidavit describing his assets and the court
finds that he is unable to pay the filing fee. 28 U.S.C.
§ 1915. In assessing a request to proceed IFP, the court
should consider whether the plaintiff can pay the costs
associated with litigation “and still be able to
provide himself and his dependents with the necessities of
life.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948) (internal quotations
court has reviewed McDonald's application and finds that
he lacks the resources to pay the costs associated with this
litigation. The court thus grants McDonald's motion (D.E.
1) and allows him to proceed IFP.
addition to determining whether McDonald is entitled to IFP
status, the court must also analyze the viability of the
claims contained in the Complaint. 28 U.S.C. § 1915(e).
The court reviews a complaint to eliminate those claims that
unnecessarily impede judicial efficiency and the
administration of justice. Specifically, the court must
dismiss any portion of the complaint it determines is
frivolous, malicious, fails to state a claim upon which