Gardner v. Lenoir Cnty. Sheriff's Office

• Decision Date: 18 May 2015
• Docket Number: 4:14-CV-66-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: EMMANUEL JEROME GARDNER, Plaintiff, v. LENOIR COUNTY SHERIFF'S OFFICE, CHRISTOPHER A. ROGERSON, MAGISTRATE SHANTE M. GREEN, and MAGISTRATE K. C. JONES, Defendants.

EMMANUEL JEROME GARDNER, Plaintiff,
v.
LENOIR COUNTY SHERIFF'S OFFICE,
CHRISTOPHER A. ROGERSON, MAGISTRATE SHANTE M. GREEN,
and MAGISTRATE K. C. JONES, Defendants.

4:14-CV-66-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISION

May 18, 2015

MEMORANDUM AND RECOMMENDATION

This pro se case, brought by plaintiff Emmanuel Jerome Gardner ("plaintiff"), an inmate, is before the court for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). It was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1).¹ For the reasons set forth below, it will be recommended that this case be dismissed.

I. BACKGROUND

A. Plaintiff's Allegations

Plaintiff's allegations are set forth in a four-page complaint form (Compl. (D.E. 1)) completed in handwriting supplemented by six handwritten pages entitled "Complaint" (Supp. Compl. (D.E. 1-1)) filed with the complaint form. Plaintiff names as defendants: (1) the Lenoir County Sheriff's Office ("LCSO"); (2) Christopher A. Rogerson ("Rogerson"), an attorney; and (3) Lenoir County Magistrates Shante M. Green ("Magistrate Green") and K.C. Jones ("Magistrate Jones"). (Compl. 1).

In his complaint and supplemental complaint, plaintiff alleges as follows:

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On 2 January 2014, Sheriff Allen Seymour² ("Seymour") of the LCSO executed a search warrant at plaintiff's residence. (Supp. Compl. ¶ 1). The search warrant, issued by Magistrate Green, authorized officers to seize: Newport cigarettes or Newport cigarette packaging; Black and Mild cigars or cigar packaging; narcotics; a gray-colored sweatshirt with a hood; light gray pants with a stripe down the side; white sneakers; a dark-colored face mask; white gloves; blue or dark-colored gloves; a handgun; handgun ammunition; blue or dark-colored coveralls; and white shoes. (Id. ¶ 2). Seymour was unable to find any of the listed items in the residence. (Id. ¶ 3). Seymour then "took it upon himself to steal" a Motorola Android cell phone, a black and gray coat, and several other items. (Id.). Seymour subsequently arrested plaintiff and charged him with two counts of robbery with a dangerous weapon, in purported violation of N.C. Gen. Stat. § 14-87; one count of second-degree kidnapping, in purported violation of N.C. Gen. Stat. § 14-39; and one count of attempted first-degree murder, in purported violation of N.C. Gen. Stat. § 14-17. (Id. ¶ 4). Plaintiff was later brought before Magistrate Green, who set bail at $1,000,000 secured. (Id. ¶ 5).

The following day, 3 January 2014, Judge Les Turner appointed Rogerson to represent plaintiff on these charges. (Id. ¶ 6). On 24 January 2014, plaintiff was charged with an additional charge of conspiracy to commit robbery with a dangerous weapon, in purported violation of N.C. Gen. Stat. § 14-87. (Id. ¶ 7). This charge arose from the same incident underlying the earlier charge of robbery with a dangerous weapon. (Id.). Magistrate Jones imposed an additional $750,000 in bail for the conspiracy charge. (Id.). Plaintiff contends that

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conspiracy to commit robbery with a dangerous weapon and attempted first-degree murder are not violations of N.C. Gen. Stat. § 14-87 or § 14-17.³ (Id. ¶ 14).

Rogerson did not accept calls from the Lenoir County Detention Center where plaintiff was housed, and plaintiff therefore attempted to contact him by letter on 26 January 2014. (Id. ¶ 8). In the letter, plaintiff requested that Rogerson inform him of the offenses he allegedly committed, send him a copy of the respective statutes, and file a motion for discovery on his behalf. (Id.). On 27 January 2014, Judge Turner reappointed Rogerson to continue representing plaintiff, even though plaintiff requested to have different counsel. (Id. ¶ 9). Rogerson visited plaintiff at the detention center on 28 January 2014 at the request of Judge Turner. (Id. ¶ 10). Rogerson informed plaintiff that he would send him a copy of the statutes he allegedly violated and would file a motion with the court for the appointment of a private investigator. (Id.).

On 28 January 2014, plaintiff filed an administrative complaint with Sheriff Chris Hill ("Hill") against Seymour for the property that Seymour allegedly took unlawfully from plaintiff's residence. (Id.). On 4 March 2014, plaintiff received an undated and unsigned denial of his administrative complaint. (Id. ¶ 11). On 9 March 2014, plaintiff wrote to Hill requesting that he reconsider the denial. (Id. ¶ 12). Plaintiff received a second denial on 24 March 2014 signed by Major Ryan Dawson. (Id. ¶ 13).

B. Plaintiff's Claims

Plaintiff, alleging federal question jurisdiction under 28 U.S.C. § 1331, claims defendants deprived him of rights he has under the Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution. (Id. at 1-2). He further alleges that they conspired to do so: "[they] are working in cohesion to deprive the Plaintiff of several of his constitutional rights." (Id. ¶ 14).

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Plaintiff seeks the following relief: (1) $10,000 in compensatory damages; (2) a court order directing LCSO to launch a full criminal investigation into Seymour's actions; (3) punitive damages; and (4) his release from house arrest while any state or federal charges are pending. (Id. at 6, Relief). Plaintiff also requests a trial by jury in this matter. (Id.).

II. APPLICABLE LEGAL STANDARDS

A. Frivolity Review

After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).

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In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.

A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336-37 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court

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determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).

B. 42 U.S.C. §§ 1983 and 1985 Claims

Title 42 U.S.C. § 1983 ("§ 1983") provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: "(1) the violation of a right secured by the Constitution and...