United States District Court, W.D. North Carolina, Statesville Division
GARY L. JOHNSON, Plaintiff,
BRYSON GRIER, Defendant.
D. Whitney Chief United States District Judge
MATTER is before the Court upon initial review of
Plaintiff Gary L. Johnson's amended Complaint pursuant to
42 U.S.C. § 1983. (Doc. No. 1 as amended by Doc. No.
8-1.) Also before the Court is Plaintiff's letter motion
for leave to file an amended complaint (Doc. No. 8), which
the Court shall grant, and motion to consolidate the original
§ 1983 and amended § 1983 Complaint (Doc. No. 9),
which the Court shall grant.
brings this amended action pursuant to 42 U.S.C. § 1983
against Bryson A. Grier, identified as a Hickory Police
officer; the Hickory Police Department (“HPD”);
James E. Crapps, Jr., identified as an HPD officer; Willis J.
Fowler, Graham H. Atkinson, Eric A. Montgomery, and Angela R.
Bryant, identified as commissioners on the North Carolina
Post Release Supervision and Parole Commission
(“PRSPC”) (hereinafter “the PRSPC
Defendants”); Erik A. Hooks, identified as Secretary of
the North Carolina Department of Public Safety
(“DPS”); Reuben F. Young, identified as interim
Chief Deputy Secretary of the DPS, and Kenneth E. Lassiter,
identified as Director of “ (hereinafter “the DPS
Defendants”), alleging violations of his constitutional
rights under the United States and North Carolina
Constitutions, and violations of various state tort laws.
(Am. Compl., Doc. No. 1 as amended by Doc. No. 8-1.)
Specifically, Plaintiff alleges that he was subjected to
false arrest, malicious prosecution, application of an ex
post facto sentencing law, and violations of his due process,
and Sixth and Eighth Amendment rights.
STANDARD OF REVIEW
Plaintiff is a prisoner proceeding in forma pauperis,
Court must review the 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, a court must
determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless
factual contentions, such as fantastic or delusional
scenarios. See 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
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 his complaint which set
forth a claim that is cognizable under federal law. See
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 Official Capacity Claims
Federal Civil Rights Act, 42 U.S.C. § 1983, imposes
civil liability upon every person who, under color of law,
deprives another of rights secured by the Constitution and
laws of the United States. 42 U.S.C. § 1983. To prevail
on a § 1983 claim, the plaintiff has the burden of
establishing (1) the deprivation of a right secured by the
Constitution or laws of the United States, and (2) that the
alleged deprivation was committed under color of state law.
Austin v. Paramount Parks, Inc., 195 F.3d 715, 727
(4th Cir. 1999). By its terms, § 1983 “creates no
substantive rights; it merely provides remedies for
deprivation of rights established elsewhere.” City
of Okla. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct.
2427, 2432 (1985) (citation omitted).
official capacity suit is, in all respects other than name,
to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Therefore, a lawsuit against a government official in his
official capacity is, in substance, a claim against the
governmental entity and should be subject to the same
analysis. See Almone v. City of Long Beach, 478 F.3d
100, 106 (2d Cir. 2007); see Hutto v. S.C. Retirement
Sys., 773 F.3d 536, 549 (4th Cir. 2014) (State officials
sued in their official capacities for retrospective money
damages have the same sovereign immunity accorded to the
State). Plaintiff has not named the municipality of Hickory
as a defendant in this action. Accordingly, Plaintiff's
§ 1983 official capacity claims against Defendants Grier
and Crapps are dismissed.
Eleventh Amendment bars suits for damages directly against a
state or its agencies, unless the state has waived its
sovereign immunity or Congress has exercised its power under
§ 5 of the Fourteenth Amendment to override that
immunity. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 66 (1989). Congress has not imposed
§ 1983 liability upon states, and North Carolina has
done nothing to waive its immunity. Bright v.
McClure, 865 F.2d 623, 626 (4th Cir. 1989) (citing
McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir.
1987)). Therefore, Plaintiff's § 1983 suit for
damages against the NCDPS and PRSPC Defendants in their
official capacities must be dismissed.
Defendants Grier, and Crapps
allegations against these Defendants are as follows:
On February 24, 2016, at about 3:15 a.m., in Hickory, North
Carolina, [HPD] Officer Bryson A. Grier . . . without
reasonable suspicion or probable cause, stopped Plaintiff,
asked [Plaintiff's name] and at the exact same time, put
his hand in [Plaintiff's] left front pants pocket and
pulled out [Plaintiff's] North Carolina Driver's
Plaintiff was served with a magistrate's order[ ]
charging him with misdemeanor [possession of] drug
paraphernalia and a Post-Release violation warrant. A warrant
for felonious habitual larceny was issued at that time
without [Plaintiff's] knowledge and [which] was not
served on Plaintiff until August 17, 2016 . . . . [Grier]
became a “Complainant” on the warrant issued on
2-25-2016, and [Grier] did not serve it, pursuant to [state
On March 19, 2018, [HPD] Officer James E. Crapps, Jr.
testified before a grand jury in Catawba County, N.C. in
reference to the Plaintiff in No. 17CRS916, formerly No.
16CRS51086 (Habitual Larceny).
Upon information and belief, Officer Crapps was not present
at the incident and arrest scene on February 24, 2016, nor
was he involved in the initial investigation of the alleged
(Am. Compl. ¶¶ 10-13.) Plaintiff alleges Defendant
Grier testified before another grand jury on February 20,
2017, but he does not state whether that testimony was
related to the habitual larceny warrant. (Am. Compl. ¶
23.) However, the Court will infer that it did.
claims his arrest by Defendant Grier constituted false arrest
under the Fourth Amendment, that Grier's failure to serve
him with the habitual felony larceny warrant for six months
deprived him of his Sixth Amendment right to counsel and due
process, and that Grier's “false statements and
fabrication of evidence in police reports constitute judicial
deception, ” malicious prosecution, and violation of
the Law of the Land Clause of the North Carolina
Constitution, Art. I, sec. 19. (Am. Compl. ¶¶
19-21.) Plaintiff further claims that Defendants Grier and
Crapps, through their testimony before two different grand
juries, conspired to violate his rights to due process and a
fair trial. (Am. Compl. ¶¶ 22-24.)
Fourth Amendment Claims for False Arrest and Malicious
an arrest amounts to a Fourth Amendment seizure, probable
cause is necessary for an arrest to be lawful. See
Henderson v. Simms, 223 F.3d 267, 272 (4th Cir. 2000);
see also Draper v. United States, 358 U.S. 307,
310-11 (1959). Accordingly, false arrest is a facially valid
civil rights claim. See Wallace v. Kato, 549 U.S.
384 (2007); Brooks v. City of Winston- Salem, 85
F.3d 178, 183 (4th Cir. 1996); Green v. Maroules,
211 Fed.Appx. 159 (4th Cir. 2006). A plaintiff may allege a
violation of § 1983 by asserting that “state
agents arrested her without ...