United States District Court, W.D. North Carolina, Asheville Division
DONALD C. KORNSE, JR., Plaintiff,
ACETO LAW OFFICE, P.A., et al., et al., Defendants.
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court sua sponte.
Plaintiff brings this action pursuant to 42 U.S.C. §
1983 against members of the Aceto Law Office, P.A.; officers
at the Buncombe County Detention Facility; Sheriff Van Duncan
of the Buncombe County Sheriff's Office; retired U.S.
Magistrate Judge Dennis Lee Howell; officials at the Bureau
of Prisons as well as “unknown Bureau of Prisons
Subcontractors”; members of the United States Marshals
Service; members of the United States Attorney's Office,
Fiat Chrysler Automobiles, LLC; members of the Federal Public
Defenders of Western North Carolina; Dan Fields, the owner
Fields Auto Group; officers and employees of H.I.G. Capital,
LLC/Correctional Medical Group Companies Inc./Southeast
Corrections; the Law Offices of Chris Mancini, P.A.; the
North Carolina State Bureau of Investigation (NCSBI) and
Alcohol Law Enforcement (ALE); the owners and employees of
Skyland Automotive Inc.; agents of the Department of Homeland
Security (DHS); and members of the local news media, alleging
various violations of his civil rights arising from his
arrest and subsequent prosecution and conviction for
impersonating a federal officer. [See Doc. 1 at 50
(listing twenty alleged civil rights violations)]. The
Plaintiff's Complaint is 59 pages in length and is
accompanied by nearly 1, 200 pages of letters, documents, and
criminal prosecution referenced in the Plaintiff's
Complaint stems from a Bill of Indictment filed in this
District in April 2016, charging the Plaintiff with
impersonating a Department of Homeland Security officer, in
violation of 18 U.S.C. § 912. [Criminal Case No.
1:16-cr-00041-MR (“CR”), Doc. 1]. In November
2016, the Plaintiff was found guilty of this charge by a
jury. [CR Doc. 58]. On April 13, 2017, the Plaintiff was
sentenced to a term of time served, followed by one year of
supervised release. [CR Doc. 81]. The Plaintiff appealed [CR
Doc. 83], and the Fourth Circuit Court of Appeals affirmed
his conviction and sentence on January 11, 2018. [CR Doc.
Plaintiff previously filed a civil action asserting nearly
identical allegations and claims on April 11, 2019. On June
5, 2019, the Court dismissed the Plaintiff's claims under
§ 1983 and for defamation related to statements made
about his arrest and conviction on the grounds that the
Plaintiff is barred from asserting any claims that would
necessarily imply the invalidity of his conviction unless and
until he can show that his underlying conviction has been
reversed, expunged, or otherwise invalidated. [Civil Case No.
1:19-cv-00123-MR-WCM, Doc. 5]. To the extent that the
Plaintiff asserted any other claims for defamation or
attempted to assert a claim for deliberate indifference, the
Court found such claims to be conclusory and utterly devoid
of factual support and therefore dismissed those claims
without prejudice. [Id.].
STANDARD OF REVIEW
the Plaintiff has paid the $400 fee associated with the
filing of this action, the statutory screening procedure
authorized under the in forma pauperis statute, 28
U.S.C. § 1915(e)(2), is not applicable. Nevertheless,
the Court has inherent authority to dismiss a frivolous
complaint sua sponte. See Ross v. Baron, 493
Fed.Appx. 405, 406 (4th Cir. 2012) (noting that
“frivolous complaints are subject to dismissal pursuant
to the inherent authority of the court, even when the filing
fee has been paid”) (citing Mallard v. United
States Dist. Ct. for S.D. of Iowa, 490 U.S. 296, 307-08
complaint is deemed frivolous “where it lacks an
arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325, 109 S.Ct. 827, 104
L.Ed.2d 338 (1989). “Legally frivolous claims are based
on an ‘indisputedly meritless legal theory' and
including ‘claims of infringement of a legal interest
which clearly does not exist.'” Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994). Claims are
“factually frivolous” if “the facts alleged
rise to the level of the irrational or the wholly
incredible.” Denton v. Hernandez, 504 U.S. 25,
noted, the Plaintiff previously filed a civil action
asserting nearly identical allegations and claims. For the
reasons stated in that prior Order [Civil Case No.
1:19-cv-00123-MR-WCM, Doc. 5], the Plaintiff's present
claims also must be dismissed.
Plaintiff's claims under § 1983 and for defamation
related to statements made about his arrest and conviction
must be dismissed on the grounds that the Plaintiff is barred
from asserting any claims that would necessarily imply the
invalidity of his conviction unless and until he can show
that his underlying conviction has been reversed, expunged,
or otherwise invalidated. Heck v. Humphrey, 512 U.S.
477, 486-87 (1994).
the Plaintiff asserts § 1983 claims against a number of
private actors, including lawyers, members of the local
media, and owners and employees of Skyland Automotive. In
this regard, the Plaintiff's Complaint is frivolous and
fails to state a claim upon which relief can be granted. As
the Fourth Circuit has explained:
To implicate 42 U.S.C. § 1983, conduct must be fairly
attributable to the State. The person charged must either be
a state actor or have a sufficiently close relationship with
state actors such that a court would conclude that the
non-state actor is engaged in the state's actions. Thus,
the Supreme Court has held that private activity will
generally not be deemed “state action” unless the
state has so dominated such activity as to convert ...