United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on initial review of
Plaintiff's Complaint under 28 U.S.C. §§ 1915A
and 1915(e) [Doc. 1], Plaintiff's “Ex Parte Motion
to Appoint Marshal to Serve Summons and Complaint”
[Doc. 4], Plaintiff's “Motion to Make Monthly
Payments Toward Filing Fee” [Doc. 5].
Plaintiff Kenneth Foster (“Plaintiff”) is a
federal inmate currently incarcerated at Fort Dix East
Federal Correctional Institution located in Joint Base MDL,
New Jersey. On August 26, 2009, the Honorable Lacy H.
Thornburg, United States District Judge, entered judgment
against Plaintiff after a jury found Plaintiff guilty of
conspiracy to possess with intent to distribute cocaine base,
in violation of 21 U.S.C. §§ 846, 841(a)(1) (Count
One), and use of a communication facility to facilitate the
distribution of cocaine, in violation of 21 U.S.C. §
843(b) (Count Two). [Criminal No. 1:09-cr-00013-MR-WCM
(“CR”), Doc. 347: Judgment]. Plaintiff was
sentenced to a term of imprisonment of 360 months on Count
One and 96 months on Count Two, to be served concurrently.
[Id. at 2]. Plaintiff has unsuccessfully sought to
challenge this conviction several times, both by direct
appeal and through Section 2255 motions to vacate.
[See CR Doc. 363, 627, 689, 710, 718, 722, 858;
Civil No. 1:09-cr-00013-MR-WCM-8, Doc. 1; Civil No.
1:09-cr-00315-MR, Doc. 1].
October 18, 2019, Plaintiff filed a complaint in this matter
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 1].
Plaintiff has named the Honorable Lacy H. Thornburg, former
United States District Judge, as the sole Defendant. In the
Complaint, Plaintiff alleges that Judge Thornburg, “a
former Federal Judge in Plaintiff[']s criminal matter,
was retired when he entered a false document into the
court[']s docket and record without being assigned,
designated, or given any permissions.” [Doc. 1 at 4].
Plaintiff claims that Judge Thornburg violated The Privacy
in entering the document in the record because Rule 5.2 of
The Privacy Act “clearly states that any document under
seal cannot be made public record, which the document in
question was.” [Doc. 1 at 12]. Plaintiff also contends
that the filing of this document violated his “rights
covered under Due Process.” [Doc. 1 at 13].
claims that this alleged act “has caused irreparable
hardship to Plaintiff, legally, and socially.”
[Id.]. Plaintiff, however, does not elaborate on the
nature of the alleged hardship.
seeks five million dollars in damages. [Id.].
STANDARD OF REVIEW
Plaintiff is proceeding pro se, the Court must review the
Complaint to determine whether it is subject to dismissal on
the grounds that it is “frivolous or malicious [or]
fails to state a claim on which relief may be granted.”
28 U.S.C. § 1915(e)(2). Furthermore, § 1915A
requires an initial review of a “complaint in a civil
action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity,
” and the court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief.
frivolity review, this 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. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a
pro se complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972). 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.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
Complaint fails initial review for several reasons.
the act of which Plaintiff complains occurred in March of
2010. Any claim Plaintiff may have had under Bivens
or otherwise has long since expired. See Harrison v.
Herbel, No. 5:05-CT-550-D, 2007 WL 9757745, at *1 (E.D.
N.C. July 17, 2007) (dismissing Bivens claim where
Plaintiff failed to file his complaint within the applicable
statute of limitations). Plaintiff's failure to timely
file the complaint is plainly evident and the Plaintiff,
therefore, has failed to state a claim as a matter of law.
Judge Thornburg is immune from suit under the doctrine of
judicial immunity. See Stump v. Sparkman, 435 U.S.
349, 359 (1996) (“A judge is absolutely immune from
liability for his judicial acts even if his exercise of
authority is flawed by the commission of grave procedural
errors.”); Imbler v. Pachtman, 424 U.S. 409,
419 (1976) (stating that judicial “immunity applies
even when the judge is accused of acting maliciously and
corruptly, and it is not for the protection or benefit of a
malicious or corrupt judge, but for the benefit of the
public, whose interest it ...