United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on the memorandum and
recommendation by United States Magistrate Judge Robert T.
Numbers, II. [DE 4]. On May 20, 2019, Judge Numbers
recommended that plaintiff be permitted to proceed in
forma pauperis but that her claims be dismissed.
Id. Plaintiff has objected to the M&R and the
matter is ripe for review. For the reasons that follow, the
M&R is ADOPTED.
April 2019, plaintiff filed a pro se application to
proceed in forma pauperis under 28 U.S.C. §
1915. [DE 1]. Plaintiff claims that defendants violated her
Fourth, Fifth, and Fourteenth Amendments rights. In
particular, she claims that defendant Blake Alan Pokopec
falsely told police that plaintiff had stolen a 2004 Toyota
Prius from him when, in fact, plaintiff had purchased the car
from Pokopec. [DE 1-1, p. 5]. Plaintiff claims that although
she had paperwork that would have proven that she'd
purchased the car, defendant Sites arrested her anyway.
Id. Plaintiff alleges that she "filed a formal
complaint" with the Apex police department and then
"filed a complaint with the Internal Affairs
Section," but her appeals were ultimately unsuccessful.
2019, Judge Numbers entered the instant memorandum and
recommendation (M&R), granting plaintiffs application to
proceed in forma pauperis and recommending that
plaintiffs claims be dismissed for failure to state a claim
upon which relief can be granted. [DE 4]. Plaintiff has
objected to the M&R, reiterating her belief that her
constitutional rights were violated and arguing that
dismissal would be premature. [DE 7].
district court is required to review de novo those
portions of an M&R to which a party timely files specific
objections or where there is plain error. 28 U.S.C. §
636(b)(1); Thomas v. Am, 140');">474 U.S. 140, 149-50
(1985). "[I]n the absence of a timely filed objection, a
district court need not conduct de novo review, but
instead must only satisfy itself that there is no clear error
on the face of the record in order to accept the
recommendation." Diamond v. Colonial Life & Ace.
Ins. Co., 16 F.3d 310');">416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation and citation omitted). Here, the Court construes
plaintiffs response as a timely, specific objection to the
finding that she has not alleged sufficient facts to state a
claim upon which relief can be granted.
considering a motion to dismiss under Rule 12(b)(6),
"the court should accept as true all well-pleaded
allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v.
Matkari, 1130');">7 F.3d 1130, 1134 (4th Cir. 1993). A complaint
must state a claim for relief that is facially plausible.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged," as merely reciting the
elements of a cause of action with the support of conclusory
statements does not suffice. Iqbal, 556 U.S. at 678.
The Court need not accept the plaintiffs legal conclusions
drawn from the facts, nor need it accept unwarranted
inferences, unreasonable conclusions, or arguments.
Philips v. Pitt County Mem. Hosp., 176');">572 F.3d 176, 180
(4th Cir. 2009).
claims can be separated into two groups. First, plaintiffs
claims against the defendant officers must be dismissed.
Plaintiff has sued each of the defendant officers in their
official, rather than individual, capacities. As
such, her claims against each officer are actually claims
against the Town of Apex. See Kentucky v. Graham,
159');">473 U.S. 159, 165-66 (1985). In order to proceed under 42
U.S.C. § 1983 against a municipality like Apex, a
plaintiff must demonstrate that the alleged constitutional
injury is attributable to one of the munipality's
official policies, procedures, or customs. See Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,
694 (1978). Plaintiff has not alleged that the defendant
officers' alleged violations of her constitutional rights
were the product of some official Apex policy, procedure, or
custom. As such, plaintiff has not alleged sufficient facts
to state a claim against the defendant officers, and her
claims against each must be dismissed without prejudice.
plaintiffs claims against defendant Pokopec must also be
dismissed. To prevail on a § 1983 claim against an
individual, a plaintiff "must show that the alleged
deprivation was committed by a person acting under color of
state law." West v. Atkins, 487 U.S. 42, 48
(1988). Here, there is no indication that Pokopec was acting
under color of state law when he filed the police report
against plaintiff. A private citizen does not become a state
actor simply by filing a police report. See, e.g.,
Benavidez v. Gunnell, 15');">722 F.2d 615, 618 (10th Cir. 1983)
("The mere furnishing of information to police officers
does not constitute joint action under color of state law
which renders a private citizen liable under § 1983
...."). Because Pokopec was not a state actor, he may
not be sued under § 1983, and plaintiffs claims against
him must be dismissed.
Court has reviewed the M&R and is satisfied that there is
no clear error on the face of the record. Plaintiff has
failed to allege sufficient facts to state a claim upon which
relief can be granted under Rule 12(b)(6). Accordingly, the
memorandum and recommendation is ADOPTED.
memorandum and recommendation of Magistrate Judge Numbers [DE
4] is ADOPTED and plaintiffs ...