United States District Court, E.D. North Carolina, Eastern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.
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.
STANDARD OF REVIEW
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.
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).
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.
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).
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. 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.
Section 1983 Claim
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
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.
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)).
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 ...