United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on initial review of
Plaintiff's Complaint filed under 42 U.S.C. § 1983
[Doc. 1], see 28 U.S.C. § 1915(a), and
Plaintiff's Motion to Proceed in Forma Pauperis [Doc. 2].
Plaintiff Brian Keith Rogers (“Plaintiff”) is a
prisoner currently incarcerated at Butner Federal
Correctional Institution in Butner, North Carolina. Plaintiff
filed the current action on July 18, 2019, pursuant to 42
U.S.C. § 1983, naming the following as Defendants: (1)
Charlotte Mecklenburg Police Department; (2) Charlotte
Mecklenburg Magistrate Office; (2) Scottie P. Carson,
identified as a police sergeant; (4) J.G. Brito, identified
as a police officer; (5) FNU Kellough, identified as a police
officer; and (5) FNU Simmons, identified as a Mecklenburg
County Magistrate. [Doc. 1 at 1, 3]. Plaintiff purports to
bring claims against Defendants for violation of
Plaintiff's rights under Fourth, Fifth, Eighth and
Fourteenth Amendments to the U.S. Constitution for racial
profiling, false accusations, issuance of an unreasonable
bond, and denial of an unbiased hearing in relation to
Plaintiff's arrest for trafficking and possession of
opium or heroin. [Doc. 1 at 3-4; Doc. 3].
Plaintiff alleges as follows in support of his claims:
On Sept. 6, 2018 undercover Officer Kellough in his official
capacity did racially profile and make false accusation, in
the course of duty against the Plaintiff (Brian Keith
Rogers). To cause the stop, handcuff and detainment search
and arrest for crimes of trafficking and possession of opium
or heroin. At 17:21 hours on the same day just mins later
officers Scottie P. Carson Jr. and J.G. Brito Jr. in their
official capacity after receiving a call from Officer
Kellough that he observed the Plaintiff make a hand to hand
drug tranaction [sic] [with a white male]. Then
detain, cuff, and search then illegally arrest the Plaintiff
(Brian Keith Rogers), Magistrate Judge G. Simmons in his
official capacity as a judicial officer, did deny the
Plaintiff a fair, impartial unbiased hearing. An issued
unreasonable bond of $250, 000.00 and a order of detainment
in Mecklenburg County Jail.
[Doc. 1 at 3 (grammatical errors in original); Doc. 3 at 2].
“Memorandum and Affidavit” Plaintiff filed the
same day as his Complaint, which the Court construes as a
part of Plaintiff's Complaint for the purpose of initial
review, Plaintiff alleges additional relevant facts:
On Sept. 6, 2018 Under Cover Officer C Kellough radioed
Uniformed Officer Scottie P. Carson Jr. and Officer J.G.
Brito Jr that he observed the Plaintiff (Brian Keith Rogers)
conduct a hand to hand drug transaction in the parking lot of
Bojangles on Statesville Rd. A recanted statement later
reported by Officer Kellough insist that he never observed a
drug transaction but observed what looked to be a possible
drug transaction being moved to another location. His
assumption was based off what actions described in his
recanted statement that can only be construed as lies to
justify the false radio mgs. to the Uniformed Officers of a
hand to hand drug transaction by the Plaintiff.
[Doc. 3 at 1 (grammatical errors in original)]. Plaintiff
does not allege whether he was convicted of this offense and
does not attempt to state a claim for false imprisonment.
Plaintiff has been housed at Butner since shortly after
filing his Complaint in this matter.
relief, Plaintiff seeks $75 million in damages, as well as
various injunctive relief including that his criminal record
be fully expunged “of any and all offenses reported on
it prior to and presently as a result of this
incident.” [Doc. 1 at 4-5].
STANDARD OF REVIEW
Court must review Plaintiff's 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 ...