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Rogers v. Charlotte Mecklenburg Police Dep't

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

December 28, 2019

BRIAN KEITH ROGERS, Plaintiff,
v.
CHARLOTTE MECKLENBURG POLICE DEP'T, et al., Defendants.

          ORDER

          Frank D. Whitney, Chief United States District Judge

         THIS 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].

         I. BACKGROUND

         Pro se 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].

         Specifically, 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].

         In a “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.

         For 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].

         II. STANDARD OF REVIEW

         The 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.

         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 ...


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