United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial review of the
Amended Complaint, (Doc. No. 8). Defendant Brandon Blackmon
has filed a Pre-Answer Motion to Dismiss, (Doc. No. 9),
seeking dismissal of all of Plaintiff's claims with
se Plaintiff purports to file suit under 42 U.S.C.
§ 1983. The Complaint was dismissed without prejudice on
initial review and Plaintiff was provided the opportunity to
amend and cure those defects. See (Doc. Nos. 1, 5).
Plaintiff's Amended Complaint is now before the Court on
whose address of record is in Charlotte, names as the sole
Defendant Brandon Blackmon, who is the Director of the McLeod
Addictive Disease Center in Charlotte. (Doc. No. 8 at 1).
Construing the Amended Complaint liberally and accepting the
allegations as true, Plaintiff was detoxed off of Methadone
against his will in 10 days without a fair hearing. This
caused withdrawal pain for 30 days, mental anguish, and
unbearable body aches. He seeks damages in the amount of the
Defendant's wages for three eight-hour shifts for 30
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court
must review the Amended Complaint to determine whether it is
subject to dismissal on the grounds that it is
“frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). The Court must determine
whether the Amended 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
state a claim under § 1983, a plaintiff must allege that
she was “deprived of a right secured by the
Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state
law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999). The color of law requirement
“excludes from its reach merely private conduct, no
matter how discriminatory or wrongful.” Id. at
50 (internal quotations omitted). In rare cases, the state
can “so dominate [private] activity as to convert it
to state action.” Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 181 (4th Cir. 2009). To
satisfy the state action requirement, a plaintiff must
demonstrate that the conduct at issue is “fairly
attributable to the State.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982). Conduct is fairly
attributable to the state where: (1) it is “caused by
the exercise of some right or privilege created by the State
or by a rule of conduct imposed by the State or by a person
for whom the State is responsible;” and (2) where the
party charged with the deprivation is a person who may
“fairly be said to be a state actor.”
Sullivan, 526 U.S. at 50. “Without state
action, [plaintiff] has no § 1983 claim.”
Thomas v. Salvation Army Southern
Territory, 841 F.3d 632, 637 (4th Cir.
2016) (affirming dismissal pursuant to §
1915(e)(2)(B)(ii) where plaintiff did not allege any facts
that even remotely suggested that defendants' actions
were attributable to the state).
8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007). The statement of the
claim does not require specific facts; instead, it
“need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However,
the statement must assert more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555.
pro se complaint must be construed liberally.
See 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 the 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).
Amended Complaint is frivolous and too vague and conclusory
to pass initial review. Plaintiff fails to explain his
relationship with Defendant or describe the alleged incident
in enough detail to satisfy Rule 8. His bare reference to 42
U.S.C. § 1983 is insufficient to state a claim.
Moreover, Plaintiff has failed to allege that the Defendant
was a state actor or explain how his alleged actions are
fairly attributable to the state. The allegations are so
severely deficient that the Court cannot conclude that it has
subject-matter jurisdiction over this action.
has had the opportunity to file an Amended Complaint and he
“is not entitled to any further opportunities to raise
the same claims” against the Defendant. See,
e.g., McDaniel v. Bailey, 748 Fed.Appx. 511
(4th Cir. 2019). The Amended Complaint will,
therefore, be dismissed with prejudice and the Clerk of Court
will be instructed to close this case. Defendant's
Pre-Answer Motion to Dismiss will be denied as moot.