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Allen v. Cooper

United States District Court, M.D. North Carolina

November 22, 2019

DERRICK ALLEN, Plaintiff,
v.
GOVERNOR ROY COOPER, et al., Defendants.

          MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge.

         This case comes before the Court on Plaintiff's Application to Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed in conjunction with his pro se Complaint (Docket Entry 2). For the reasons that follow, the Court will grant Plaintiff's instant Application for the limited purpose of recommending dismissal of this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.

         LEGAL STANDARD

         “The federal in forma pauperis [‘IFP'] statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts ‘solely because his poverty makes it impossible for him to pay or secure the costs.'” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with filing fees, however, [is] not without its problems. Parties proceeding under the statute d[o] not face the same financial constraints as ordinary litigants. In particular, litigants suing [IFP] d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004).

         To address this concern, the IFP statute provides, in relevant part, that “the court shall dismiss the case at any time if the court determines that the action or appeal fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint falls short when it does not “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) (emphasis added) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.[1] The Court may also anticipate affirmative defenses that clearly appear on the face of the complaint. Nasim, 64 F.3d at 955.

         BACKGROUND

         Asserting claims under “42 U.S.C. § 1983” for “[v]iolation[] of [his] constitutional [r]ights . . . [under the] 8th, 5th, 6th, 7th, and 14th [A]mendment[s], ” Plaintiff initiated this action against four defendants: (1) “Governor Roy Cooper” (“Governor Cooper”), (2) “Roy Lee Guy” (“Defendant Guy”), (3) “The Office of Executive Clemency, ” and (4) “Laura Dian Loewe” (“Defendant Loewe”). (Docket Entry 2 at 1-3.) The Complaint's statement of claim states in its entirety:

[Plaintiff] ha[s] a pending [p]ardon of innocence with the Governor's office; Case # P-17-0009. [Plaintiff] was wrongfully incarcerated for offenses 98crs5208, 98crs7980 & 98CRS7979. [ ] Since released from [p]rison and/or Durham County Jail; [Plaintiff] ha[s] been subject to cr[ue]l and un[]usual circumstances such as homelessness, employment discrimination, [Plaintiff's] name has been slander[ed] endlessly and [Plaintiff is] continuously harassed by police and locked while at school - pastence [sic], and charges end up dismissed which leaves [Plaintiff] wors[e] off. [Plaintiff] ha[s] written letters and too called Gov[e]rnor[] Cooper['s] administration voi[c]ing [his] concerns and yet to no avail[. Plaintiff] ha[s] also been the victim of insurance fraud[ ] at the hand of the police[ in D]urham[, ] or so it appears[.]

(Id. at 4.) The Complaint also alleges that Plaintiff has “been subjected to housing discrimination, employment discrimination, slander/libel and [m]ore” (id. at 5), and further requests “compensat[ion] for [] mental anguish and punitive damages in accordance with federal law or simply for [his] pardon of innocence to be granted” (id. at 6).

         DISCUSSION

         I. The Office of Executive Clemency

         As an initial matter, the Office of Executive Clemency does not qualify as a “person” subject to suit under 42 U.S.C. § 1983. In that regard, to state a claim for relief under Section 1983, Plaintiff must assert “that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).[2]

         The Office of Executive Clemency falls within the North Carolina Department of Public Safety (see Docket Entry 2-1 at 1), a state agency. “[T]he state and its agencies are not persons acting under state law.” Shelton v. Crookshank, No. 3:17CV108, 2018 WL 527423 ( W.Va. Jan. 24, 2018) (unpublished) (internal citation omitted) (dismissing Section 1983 claims against state agencies including office of state's governor), aff'd, 742 Fed.Appx. 782 (4th Cir. 2018). Therefore, the Court should dismiss all claims against the Office of Executive Clemency.

         II. Official ...


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