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Foster v. Thornburg

United States District Court, W.D. North Carolina, Asheville Division

December 11, 2019

KENNETH FOSTER, Plaintiff,
v.
LACY H. THORNBURG, Defendant.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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].

         I. BACKGROUND

         Pro se 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].

         On 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.”[1] [Doc. 1 at 4]. Plaintiff claims that Judge Thornburg violated The Privacy Act[2] 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].

         Plaintiff 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.

         Plaintiff seeks five million dollars in damages. [Id.].

         II. STANDARD OF REVIEW

         Because 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.

         In its 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).

         III. DISCUSSION

         Plaintiff's Complaint fails initial review for several reasons.

         First, 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.

         Second, 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 ...


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