United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
a federal inmate proceeding pro se, filed this civil rights
action pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). On
February 27, 2019, the court conducted frivolity review of
plaintiff's complaint, allowed the action to proceed as
to certain claims, and directed plaintiff to file amended
complaint particularizing his remaining claims. Plaintiff
timely complied with the court's order. The matter now is
before the court for frivolity review of plaintiff's
amended complaint pursuant to 28 U.S.C. §1915, and on
plaintiff's motions for leave to file amended complaint,
(DE 35), to seal medical records, (DE 36), and for order to
provide information to effect proper service, (DE 42).
court begins with plaintiff's motion to seal medical
records submitted as exhibits 26 and 35, (DE 35-4, 35-5), to
plaintiff's proposed amended complaint. The court has
reviewed the motion under the governing standard and finds
the exhibits should be sealed. See Doe v. Pub.
Citizen, 749 F.3d 246 (4th Cir. 2014). Accordingly, the
court grants plaintiff's motion to seal.
court now turns to plaintiff's motion for leave to file
amended complaint. The court's February 27, 2019, order
directed plaintiff to file amended complaint particularizing
his claims, and the instant motion seeks leave to file
amended complaint in conformity with the court's order.
Accordingly, the court grants plaintiff's motion for
leave to file amended complaint.
also moves for order directing the United States Attorney to
provide this court with defendant Lassiter's last known
address, in order to effectuate service of the summons and
complaint. The United States, which has entered limited
notice of appearance as an interested party, responded to
plaintiff's motion. The United States represents that
defendant Lassiter has authorized the United States
Attorney's Office for the Eastern District of North
Carolina to accept service of plaintiff's amended
complaint on her behalf. (DE 43). Accordingly, the court
denies as moot plaintiff's motion requesting address
information for defendant Lassiter.
U.S.C. § 1915 provides that courts shall review
complaints filed by prisoners seeking leave to proceed in
forma pauperis and dismiss such complaints if they are
“frivolous” or fail to state a claim on which
relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii). A complaint may be found frivolous
because of either legal or factual deficiencies. First, a
complaint is frivolous where “it lacks an arguable
basis . . . in law.” Neitzke v. Williams, 490
U.S. 319, 325 (1989). Legally frivolous claims are based on
an “indisputably meritless legal theory” and
include “claims of infringement of a legal interest
which clearly does not exist.” Adams v. Rice,
40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490
U.S. at 327). Under this standard, complaints may be
dismissed for failure to state a claim cognizable in law,
although frivolity is a more lenient standard than that for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Neitzke, 490 U.S. at 328.
Second, a complaint may be frivolous where it “lacks an
arguable basis . . . in fact.” Id. at 325.
Section 1915 permits federal courts “to pierce the veil
of the complaint's factual allegations and dismiss those
claims whose factual contentions are clearly baseless.”
See Denton v. Hernandez, 504 U.S. 25, 32 (1992)
(citing Neitzke, 490 U.S. at 327).
state a claim on which relief may be granted, the complaint
must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating
whether a claim is stated, “[the] court accepts all
well-pled facts as true and construes these facts in the
light most favorable to the plaintiff, ” but does not
consider “legal conclusions, elements of a cause of
action, . . . bare assertions devoid of further factual
enhancement[, ] . . . unwarranted inferences, unreasonable
conclusions, or arguments.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th
Cir. 2009) (citations omitted). In other words, the
plausibility standard requires a plaintiff to articulate
facts that, when accepted as true, plausibly demonstrate that
plaintiff is entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
plaintiff's motion for leave to file amended complaint
concedes that the counts two, five, and seven of his original
complaint should be dismissed for failure to state a claim
for the reasons stated in the court's February 27, 2019,
order. (DE 35 at 1). Accordingly, the court dismisses such
claims with prejudice.
the remaining claims, the court previously concluded the
majority of counts one, three, and six survive frivolity
review. (DE 12 at 4-7, 8-9, 13-14). Plaintiff's proposed
amended complaint, however, seeks leave to amend these counts
to include additional claims against defendants.
respect to count one, plaintiff requests leave to amend to
include the following allegation:
Defendants Smith, Glass, Slaydon, Christopher, Hendry,
Leslie, Wilkins, Willis, Halfast, Martin, and Dickerson
violated the plaintiff's First Amendment right to be free
from retaliation by failing to immediately report the
retaliation against and the wrongful detention of the
plaintiff, by defendants Ma'at and Hoskins, in violation