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Johnson v. Grier

United States District Court, W.D. North Carolina, Statesville Division

October 8, 2019

GARY L. JOHNSON, Plaintiff,
v.
BRYSON GRIER, Defendant.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS 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.

         I. BACKGROUND

         Plaintiff 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.

         II. STANDARD OF REVIEW

         Because Plaintiff is a prisoner proceeding in forma pauperis, [1] the 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 Cir. 1999)).

         A 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 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 relief. Id.

         III. DISCUSSION

         A. § 1983 Official Capacity Claims

          The 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).

         “[A]n 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.

         The 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.

         B. Defendants Grier, and Crapps

         Plaintiff's 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 License.
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 statute].
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 crime.

(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.

         Plaintiff 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.)

         1. Fourth Amendment Claims for False Arrest and Malicious Prosecution

         a. False Arrest

         Because 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 ...


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