United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Patrick Auld United States Magistrate Judge.
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.
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).
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,
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. The Court may also anticipate affirmative
defenses that clearly appear on the face of the complaint.
Nasim, 64 F.3d at 955.
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
[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 unusual 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).
The Office of Executive Clemency
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
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.