United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on initial review of
Plaintiff's Amended Complaint filed under 42 U.S.C.
§ 1983, (Doc. No. 12), and on Plaintiff's Motion to
Remove $350 Filing Fee, (Doc. No. 15), and Motion to Appoint
Counsel, (Doc. No. 16). Plaintiff is proceeding in forma
pauperis. See (Doc. No. 8).
pro se incarcerated Plaintiff filed this action
pursuant to 42 U.S.C. § 1983 in the United States
District Court for the District of Columbia. (Doc. No. 1).
The District of Columbia court transferred the matter to this
Court due to improper venue. (Doc. No. 3). This Court
dismissed the Complaint without prejudice on initial review
and ordered Plaintiff to amend. The Amended Complaint is now
before the Court for initial review.
names as the sole Defendant Eric A. Hooks, Secretary of the
Department of Public Safety, in his official capacity. The
Amended Complaint alleges verbatim:
Erik A. Hooks said he/she was a Respondent as the state of
North Carolina Buncombe County Court case # 1:18-cv-273-FDW
which was a lie. And then he/she purged and change their
(Doc. No. 1 at 4).
alleges that Defendant Hooks violated § 1983 by
depriving Plaintiff of his right to a fair trial. (Doc. No. 1
at 3). He seeks $5 billion in damages.
STANDARD OF REVIEW
Plaintiff is a prisoner 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 “(i) frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). In its
frivolity review, 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 (1989). A
complaint should not be dismissed for failure to state a
claim “unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999)).
pro se complaint must be construed liberally.
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 his
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). A pro se
complaint must still contain sufficient facts “to raise
a right to relief above the speculative level” and
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007); see Ashcroft v. Iqbal, 556
U.S. 662 (2009) (the Twombly plausibility standard
applies to all federal civil complaints including those filed
under § 1983). This “plausibility standard
requires a plaintiff to demonstrate more than a sheer
possibility that a defendant has acted unlawfully.”
Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009) (internal quotation marks
omitted). He must articulate facts that, when accepted as
true, demonstrate he has stated a claim entitling him to
1983 imposes liability on state actors who cause the
deprivation of any rights, privileges or immunities secured
by the Constitution.” Loftus v. Bobzien, 848
F.3d 278, 284 (4thCir. 2017) (quoting Doe v.
Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To
state a claim under § 1983, a plaintiff must allege that
the defendant, acting under the color of law, violated her
federal constitutional or statutory rights and thereby caused
injury. Crosby v. City of Gastonia, 635 F.3d 634,
639 (4th Cir. 2011).
Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of Another State, or by
Citizens of any Foreign State.” U.S. Const. Amend. 11.
Thus, § 1983 suits against a state, its agencies, and
its officials sued in their official capacities for damages
are barred absent a waiver by the State or a valid
congressional override. Kentucky v. Graham, 473 U.S.
159, 169 (1985).