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Tucker v. Kivett

United States District Court, M.D. North Carolina

July 24, 2019

CORNELIUS TUCKER, Plaintiff,
v.
CPL. KIVETT et. al., Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a pretrial detainee, alleges that his constitutional rights were violated and brings this pro se action pursuant to 42 U.S.C. § 1983. (Docket Entry 2.) Defendants, “Chief of Winston-Salem Police Department, ” Catrina Thompson, “Internal Affairs Division Winston-Salem Police Department, ” and Sgt. Dorn, have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Docket Entry 30.) Defendants have also filed a Motion for a Prefiling Injunction, requesting that Plaintiff must obtain leave of Court before filing any future civil complaints in the Middle District of North Carolina. (Docket Entry 37.)

         I. BACKGROUND

         Plaintiff originally filed this action pro se on October 24, 2018 against Cpl. Kivett, Sheriff Schatzman, Sgt. Ingle, Major Slater, Capt. Guard Settle, and Dr. Cunningham alleging, inter alia, due process violations, first amendment violations, cruel and unusual punishment, and deliberate indifference to a serious medical need. (Docket Entry 2.) Many of these claims do not pertain to the Defendants that have moved to dismiss.

         On November 15, 2018, Plaintiff amended the Complaint to include Defendants Chief of Winston-Salem Police Department (“WSPD”), Catrina Thompson, and the WSPD Internal Affairs Division, among other defendants. (Docket Entry 8.) The first page of Plaintiff's Amended Complaint alleges, inter alia, fraud, extortion, embezzlement, and violations of the Plaintiff's first, fourth, fifth, sixth, and fourteenth constitutional amendment rights. (Id. at 1.)

         Specifically, Plaintiff included Police Chief Thompson and the Internal Affairs Division “due to depriv[ation] of right(s) to file complaints regarding: life insurance policies, $10, 000, stolen, fraud.” (Id.) In the same Amended Complaint, Plaintiff claims that Defendant Jeri Wagner obtained his property by false pretenses, exploited Plaintiff as a disabled elder, and committed forgery, extortion, and embezzlement regarding Plaintiff's life insurance policies. (Id.) Later in the complaint, Plaintiff admits that “[e]ventually, [he] filed Superior C[ourt] claims on Jeri Wagner” and he is merely waiting for access to the case number. (Id. at 2.) Plaintiff further alleges that Thompson and the Internal Affairs Division “refused to reply” and discriminated against Plaintiff “based upon upon [his] jail detainee-status.” Plaintiff also requests

that, defendants, Police: Thompson, internal affairs div[ision], also produce for inspection [a No. of documents, a] reason for not replying to complaints, [and other documents] pertaining to not replying to complaints. Although . . . in journal [newspaper], Thompson stated she answer[s] all complaints about police complaints to citizens, I'm only a jail detainee.

(Id.)

         Plaintiff also amended the Complaint to include Sergeant Dorn of the WSPD. (Id. at 4) Plaintiff's allegations against Sgt. Dorn are as follows:

Police Detective Sgt. Dorn, in an interview April 16, 2015, [said] that he received results of DNA test and didn't mention there are 3 or 4 other/additional DNA [samples of] other persons. [H]owever, my attorney Jason B. Crump told me he had an independent DNA testing that had additional DNA of other persons on a terrycloth, amounting [to] unlawful, wrongful DNA analysis . . . Dorm[']s [sic] partner took a soda can out [of my] trash [that] I'd placed to illegally obtain fingerprints, to place them for sole purpose [of a] conspiracy-campaign. Sgt. Dorn ordered said police detective, name-unknown, to throw away said can, which exposed the intent to incriminate Tucker falsely. . . . Racial discrimination, both Caucasian, I'm Af[rican] Amer[ican.]

(Id.)

         Originally, Plaintiff sought injunctive relief in the form of an MRI scan or neurological examination. (Docket Entry 2.) In his Amended Complaint, Plaintiff seeks an injunction, as well as punitive and compensatory damages. (Docket Entry 8.)

         II. DISCUSSION

         A. Rule 12(b)(6) ...


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