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Hemby v. The Office of District Attorney

United States District Court, E.D. North Carolina, Eastern Division

June 5, 2019

GREGORY HEMBY, Plaintiffs,



         This matter is before the court on Plaintiffs application to proceed in forma pauperis under 28 U.S.C. § 1915 and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs and the application is allowed. However, for the reasons that follow, it is recommended that the complaint be dismissed.


         Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' "delusional," or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.

         In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "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." Id. "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. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).

         In order to state a claim on which relief may be granted, "a complaint must 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . ."" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.

         In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97. 106 (1976); Noble v. Bamett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         II. ANALYSIS

         Mr. Hemby brings this action alleging he was wrongfully arrested without probable cause and maliciously prosecuted for Second Degree Trespass in Pitt County District Court, No. 18 CR 056398.[1] Compl. [DE-1-1] ¶¶ 6-18. The case remains pending. Id. ¶¶ 2-3. Mr. Hemby alleges the Pitt County Magistrate failed to require a probable cause showing to detain him, and the Pitt County District Attorney's Office initiated a malicious prosecution against him, violating his civil rights under the United States Constitution and North Carolina state law. Id. ¶¶ 7-18. Mr. Hemby seeks monetary damages and dismissal of the pending charge. Id. ¶¶ 26-27, 29-30.

         A. Section 1983 Claim[2]

         Mr. Hemby alleges his Fourth Amendment rights were violated and seeks relief under 42 U.S.C. § 1983. Compl. [DE-1-1] ¶¶ 19-20. Section 1983 imposes liability on anyone who, under the color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. However, § 1983 is not a "source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (citations omitted). Thus, to state a claim under § 1983, a plaintiff must allege facts indicating a deprivation of rights guaranteed by the Constitution and laws of the United States and that this deprivation resulted from conduct committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42. 48 (1988) (citations omitted): see Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citations omitted).

         In order to challenge any aspect of a pending criminal case under § 1983, the complaint "must plausibly allege that the underlying "conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . ., or called into question by a federal court's issuance of a writ of habeas corpus.'" Sheridan v. Shekita, No. 5.T6-CT-3085-D, 2016 WL 9083355, at *2 (E.D. N.C. Oct. 31, 2016) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)), affd. 678 Fed.Appx. 145 (4th Cir. 2017). "A district court must undertake a case specific analysis to determine whether success on the [section 1983] claims would necessarily imply the invalidity of a conviction or sentence," and ''[i]f so, the court must dismiss the complaint." Id. (quoting Thigpen v. McDonnell, 273 Fed.Appx. 271, 272 (4th Cir. 2008) (per curiam)). Mr. Hemby alleges that his arrest was not supported by probable cause and that his prosecution was malicious, but he fails to make the allegations required by Heck because his case is still pending and has not been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or otherwise called into question. See Id. (dismissing § 1983 claim as barred by Heck where the plaintiff challenged the sufficiency of evidence against him in his criminal case and asserted malicious prosecution but failed to make the allegations Heck requires). Accordingly, it is recommended that the § 1983 claim be dismissed pursuant to Heck.

         Mr. Hemby also names defendants who are immune from § 1983 claims for monetary damages. "State officials sued in their official capacity for damages are protected by Eleventh Amendment immunity." Coulter v. Estate of Grannis, No. 5:16-CV-277-BO, 2017 WL 2226566, at *2 (E.D. N.C. May 19, 2017) (citing Ballenger v. Givens, 352 F.3d 842, 845 (4th Cir. 2003)). "Claims against North Carolina district attorneys in their official capacities are plainly claims against state officials and are barred by the Eleventh Amendment." Id. (citing Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006)). Likewise, official capacity claims against judicial officers, such as magistrates, are barred by the Eleventh Amendment. See D'Alessandro v. North Carolina, No. 5:14-CV-16-BO, 2014 WL 2535222, at *3 (E.D. N.C. Mar. 27, 2014), adopted by 2014 WL 2547696 (E.D. N.C. June 5, 2014). While Mr. Hemby alleges the state has waived its immunity under the North Carolina Tort Claims Act, Compl. [DE-1-1] ¶ 28, he is mistaken. The act "did not affect North Carolina's Eleventh Amendment immunity in federal courts." Dove for Estate of Dove v. Stevens, No. 5:05-CV-33-BO(1), 2006 WL 8438680, at *4 (E.D. N.C. Oct. 23, 2006); see Olavarria v. N.C. Admin. Office of Courts, No. 5:15-CV-00577-F, 2016 WL 1060238, at *1 (E.D. N.C. Mar. 14, 2016) ("The plain text of the statute limits the state's waiver, vesting in the Industrial Commission exclusive jurisdiction over cases falling under the Act.") (citing N.C. Gen. Stat. § 143-291(a); Russell v. N.C Dep't of Env't & Nat. Res., 742 S.E.2d 329, 332 ( N.C. Ct.App. 2013)).

         Prosecutors have absolute prosecutorial immunity from individual capacity claims for monetary damages "for acts carried out in the judicial phase of their prosecutorial functions, including initiating a judicial proceeding or appearing in court." Sheridan, 2016 WL 9083355, at *2 (dismissing malicious prosecution claim against an assistant district attorney because prosecutors are immune from suit for initiating a judicial proceeding); see Washington v. Wilson,697 Fed.Appx. 241, 243 (4th Cir. 2017) (per curiam) (affirming dismissal of vindictive and improper prosecution claim against the state attorney general's office, the attorney general, and a deputy attorney general on the grounds of absolute prosecutorial immunity because "their actions and inactions arose from their roles as advocates for the State [] in prosecuting [the plaintiff].") (citing Imbler v. Pachtman, 424 U.S. 409, 423-28) (1976)); Safar v. Tingle, 859 F.3d 241, 249 (4th Cir. 2017) (concluding the prosecutor's decision to seek an arrest warrant and ...

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