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 the
Complaint, (Doc. No. 1). Plaintiff has filed an Application
to proceed in forma pauperis, (Doc. No. 2), and a
Motion to Rule on the IFP application, (Doc. No. 4).
se Plaintiff has filed this civil rights suit pursuant
to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). He
names as Defendants: FBI Agents Rory P. Poynter, Jeff S.
Blanton, Mickey R. Nocera, Brian O'Hara, Reanna
O'Hara, and Assistant United States Attorney David P.
Lewen. Plaintiff's claims relate to a search that
occurred in this District which was prosecuted in the Eastern
District of Tennessee, case number 3:15-cr-177.
his criminal trial, Petitioner filed two motions to suppress
evidence, one of which argued that the affidavit in support
of the warrant to search a cabin at 380 Allison Drive
contained false information and failed to establish probable
cause. He also asked the Tennessee district court for a
Franks hearing as to whether officers had used
false information to obtain that warrant. The district court
denied his motions then conducted a trial with over 40
witnesses and the jury convicted Plaintiff of all charges.
The court sentenced him to four consecutive life sentences
plus 155 years. Plaintiff argued on direct appeal that much
of the evidence at trial should have been excluded, either
because the police allegedly violated the Fourth Amendment,
or because its admission violated Rule 403 of the Federal
Rules of Evidence, and that he was entitled to a new trial
because of prosecutorial misconduct. He specifically argued
that officers lacked probable cause for their search of the
cabin at 380 Allison Drive which they conducted pursuant to a
warrant. The Sixth Circuit rejected his arguments and
affirmed his convictions. United States v. Benanti,
775 Fed.Appx. 556 (6th Cir. 2018).
instant lawsuit, Plaintiff s addresses the search warrant
affidavit that was submitted to this Court on November 26,
2015, and a suppression hearing that was heard in the Eastern
District of Tennessee on June 2, 2016.
Plaintiff's claims liberally and accepting them as true,
Defendant Poynter submitted a search warrant affidavit to
Judge Howell on November 26, 2015, that contained recklessly
false statements that that: (1) “FBI … examined
a GPS device found in the abandoned, stolen vehicle and found
a track to the address of 124 Rebel Ridge Road, ” (Doc.
No. 1 at 5); (2) “The same two males stayed at 124
Rebel Ridge Rd from July 27, 2015 - October 25, 2015, ”
(Doc. No. 1 at 8); (3) “The employee said the two males
placed a deposit on Southern Comfort (380 Allison Dr) to be
occupied on Nov 16, 2015, ” (Doc. No. 1 at 8); (4)
“The NCHSP trooper who was involved in the vehicle
chase on Sept. 3 2015 positively identified Witham to be the
driver who fled him during the earlier chase, ” (Doc.
No. 1 at 11); (5) “The driver ignored the emergency
lights and siren of the NCHSP vehicle and preceded on I-26
East bound to Long Shoals road, at which point it exited the
interstate, ” (Doc. No. 1 at 13); (6) “black
rubber gloves” and Benanti's also contained a
“stocking Cap, ” (Doc. No. 1 at 15); and (7)
“[Y]our affiant was notified by HCSO investigators that
a surveillance team had observed a gray Nissan Pathfinder,
occupied by two white males leaving the target location,
” (Doc. No. 1 at 15). Plaintiff alleges that each of
the Defendants knew of the falsity of these statements before
the search warrant was filed. He further alleges that
Defendant Lewen, a federal prosecutor, committed these acts
in his administrative or investigative capacities during the
drafting of the search warrant.
further alleges that, at the June 2, 2016 suppression
hearing, Defendant Blantin perjured himself by testifying
that: (1) the 124 Rebel Ridge Road address was part of the
data found in the GPS; (2) two white males were staying at
the 124 Rebel Ridge Road address; and (3) two white males
were observed at the 380 Allison Drive on November 25, 2015.
Plaintiff alleges that Defendant Blantin intentionally misled
the Court at the suppression hearing.
seeks declaratory judgment, nominal compensatory damages,
punitive damages, a jury trial, the costs of this lawsuit,
and any additional relief that the Court deems just, proper,
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). A
pro se complaint must still contain sufficient facts
“to raise a right to relief above the speculative
level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility
standard applies to all federal civil complaints including
those filed under § 1983). This “plausibility
standard requires a plaintiff to demonstrate more than a
sheer possibility that a defendant has acted
unlawfully.” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (internal quotation marks
omitted). He must articulate facts that, when accepted as
true, demonstrate he has stated a claim entitling him to
state a claim under Bivens, a plaintiff must allege
that a defendant is a federal agent who acted under the color
of authority and engaged in unconstitutional conduct. The
purpose of Bivens is to “deter individual
federal officers from committing constitutional
violations.” Holly v. Scott, 434 F.3d 287, 291
(4th Cir. 2006) (quoting Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 70 (2001)); see also
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)
(§ 1983 applies only to state actors)). The Court