ALLEN v. GLINES

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv793

v. )

)

SARA GLINES, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff’s Application to

Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed

in conjunction with his pro se Complaint (Docket Entry 2). For the

reasons that follow, the Court will grant Plaintiff’s instant

Application for the limited purpose of recommending dismissal of

his federal claims, under 28 U.S.C. § 1915(e)(2)(B)(ii), for

failure to state a claim, and dismissal without prejudice of his

state claims under 28 U.S.C. § 1367(c)(3), given the absence of any

viable federal claim.

LEGAL STANDARD

“The federal in forma pauperis [‘IFP’] statute, first enacted

in 1892 [and now codified at 28 U.S.C. § 1915], is intended to

guarantee that no citizen shall be denied access to the courts

‘solely because his poverty makes it impossible for him to pay or

secure the costs.’” Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with

filing fees, however, [is] not without its problems. Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants. In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully

obtaining relief against the administrative costs of bringing

suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in relevant

part, that “the court shall dismiss the case at any time if the

court determines that the action or appeal fails to state a claim

on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint falls short when it does not “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (emphasis added) (internal citations omitted) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.!

BACKGROUND

Asserting claims under “42 U.S.C. § 1983,” pursuant to his □□

amendment [right] Lo [freedom from] cruel [and] unusual

punishment, ” Plaintiff initiated this action against Six

defendants: (1) “Sara Glines” (“Defendant Glines”); (2) “Jim

Puryear” (“Defendant Puryear”); (3) Robyn Tomlins” (“Defendant

Tomlins”); (4) “Jane Elizabeth” (“Defendant Elizabeth”); (5) “The

News & Observi[e]r”; and (6) “The He[ra]ld-Sun.” (Docket Entry 2 at

1-3.) The Complaint’s statement of claim states in its entirety:

In 1998, [Plaintiff] was charged with [flirst degree

murder, [f]irst degree [s]tatutory [slexual offense,

[and] [flelonious child abuse. [Plaintiff’s] face was

plastered on the front page of both the He[ra]ld-Sun and

News & Observ[elr. Charges were dismissed in 2010 by

Judge Orlando F. Hudson, and yet ADA Tracey Cline

appealed Judge Hudson[’]s [r]luling in which North

t Although “[a] document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

citations and quotation marks omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Office of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint

- . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than

the mere possibility of misconduct.’” (first quoting Erickson, 551

U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).

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Carolina Court of [A]ppeals overturned Judge Hudson[’s

r]uling, and remand[ed] the case for [t]rial[. ]

Eventually, [t]he State of North Carolina moved to

dismiss the case. [Plaintiff] was subjected to media

coverage that blemished not only [his] reputation, [but

also s]landered [his] name [and] subjected [him] to

libel[,] defamation of character, [and] cruel and unusual

punishment. During the times of not being charged or

convicted of the before[-]mentioned offenses[, Plaintiff]

was still subjected to the mental agony of being

perceived as a child murderer and sex offender . . . .

The media played a major role in tarnishing [Plaintiff’s]

name without deoxyribonucleic acid and/or DNA.

(Id. at 4.) The Complaint also alleges that Plaintiff has “been

subjected to housing discrimination, employment discrimination,

slander/libel and [m]ore” (id. at 5), and further requests

“compensat[ion] for [] mental anguish and punitive damages in

accordance with federal law” (id. at 6).

DISCUSSION

I. The Herald-Sun and the News & Observer

As an initial matter, to state a claim for relief under

Section 1983, Plaintiff must assert “that [he was] deprived of a

right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

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(1999).2 Regarding the Herald-Sun and the News & Observer, the

Complaint alleges that, (i) “[Plaintiff’s] face was plastered on

the front pages of both the He[ra]ld-Sun and News & Observ[e]r,”

(ii) “[Plaintiff] was subjected to media coverage that blemished

not only [his] reputation, [but also s]landered [his] name, [and]

subjected [him] to libel[,] defamation of character, [and] cruel

and unusual punishment,” and (iii) “[t]he media played a major role

in tarnishing [Plaintiff’s] name without deoxyribonucleic acid

and/or DNA.” (Docket Entry 2 at 4.)

A. No State Action

The Complaint’s allegations fail to state Section 1983 claims

against either the Herald-Sun or the News & Observer, because such

claims require “state action,” Hall v. Quillen, 631 F.2d 1154, 1155

(4th Cir. 1980), and the Complaint does not establish that either

of these defendants qualify as state actors (see Docket Entry 2 at

1-7). The claims against the Herald-Sun and the News & Observer

2 Specifically, Section 1983 provides, in pertinent part,

that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

42 U.S.C. § 1983 (emphasis added).

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therefore fail as a matter of law. See American Mfrs., 526 U.S. at

50 (holding that Section 1983’s under-color-of-state-law

requirement “excludes from its reach merely private conduct, no

matter how discriminatory or wrongful” (internal quotation marks

omitted)).

To prove that a defendant acted under color of state law, “the

person charged must either be a state actor or have a sufficiently

close relationship with state actors such that a court would

conclude that the non-state actor is engaged in the state’s

actions.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 (4th Cir. 2009). Although a private entity may satisfy that

condition by performing functions “traditionally the exclusive

prerogative of the State,” Jackson v. Metropolitan Edison Co., 419

U.S. 345, 353 (1974), the Complaint lacks any indication that any

actions of the Herald-Sun or the News & Observer so qualify (see

Docket Entry 2 at 1-7). To the contrary, the actions attributed to

these defendants fall outside the reach of Section 1983. See,

e.g., Lloyd v. Scotland Cty. Sheriff Dep’t, No. 1:19CV3, 2019 WL

1118530, at *2 (M.D.N.C. Feb. 8, 2019) (unpublished) (dismissing

Section 1983 claims against newspaper defendant because “a

newspaper is plainly not a state actor”), recommendation adopted,

2019 WL 1116764, at *1 (M.D.N.C. Mar. 11, 2019) (Osteen, Jr., J.);

Morton v. Greenwood City Police Dep’t, Civ. Action No. 8:13-1243,

2013 WL 4042186, at *3 (D.S.C. Aug. 7, 2013) (unpublished) (“[The

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d]efendant [newspaper] is not a person acting under the color of

state law. [The p]laintiff makes no allegation that this newspaper

is any kind of state actor that would be amenable to suit under

[Section] 1983.”); Wellman v. Williamson Daily News, Inc., 582 F.

Supp. 1526, 1528 (S.D.W.V. 1984) (“[T]he publication of a newspaper

does not involve state action.” (internal quotation marks

omitted)), aff’d, No. 84-1462, 742 F.2d 1450 (table) (4th Cir.

Sept. 11, 1984) (unpublished).

B. Defamation Claim

Next, “even if the newspaper[s] were amenable to suit, a

defamation cause of action would not lie under [Section] 1983.”

Morton, 2013 WL 4042186, at *3 (finding that “[a]ny defamation

suffered by [the p]laintiff would not be actionable under [Section]

1983 because it does not implicate federal constitutional or

statutory rights [as] ‘defamation, by itself, is a tort actionable

under the laws of most states, but not a constitutional

deprivation’” (quoting Siegert v. Gilley, 500 U.S. 226, 233

(1991))). Therefore, because “a [p]laintiff’s charge of

defamation, standing alone and apart from any other governmental

action with respect to him, does not state a claim for relief under

Section 1983,” Wellman, 582 F. Supp. at 1528 (internal quotation

marks omitted), the Complaint has failed to state a cause of action

under Section 1983 against the Herald-Sun and the News & Observer.

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Accordingly, the Court should dismiss all Section 1983 claims

against the Herald-Sun and the News & Observer for failure to state

a claim.

II. Defendants Glies, Puryear, Tomlins, and Elizabeth

In addition, beyond naming them as Defendants, the Complaint

does not even so much as mention Defendants Glines, Puryear,

Tomlins, and Elizabeth. (See Docket Entry 2 at 1-7.) Thus, the

Complaint fails to establish Section 1983 claims against Defendants

Glines, Puryear, Tomlins, and Elizabeth due to the lack of factual

matter suggesting that any of those defendants violated Plaintiff’s

constitutional rights. See American Mfrs., 526 U.S. at 49

(requiring allegations of a “depriv[ation] of a right secured by

the Constitution or laws of the United States” to state a Section

1983 claim); see also Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th

Cir. 2016) (“Section 1983 is not itself a source of substantive

rights, but rather provides a method for vindicating federal

constitutional and statutory rights.”).

Put another way, nothing in the record indicates in any way

that Defendants Glies, Puryear, Tomlins, or Elizabeth engaged in

any violation of Plaintiff’s constitutional rights as remains

necessary to state a plausible Section 1983 claim. See Iqbal, 556

U.S. at 679 (“While legal conclusions can provide the framework of

a complaint, they must be supported by factual allegations.”). The

Court should therefore dismiss all Section 1983 claims alleged

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against Defendants Glies, Puryear, Tomlins, and Elizabeth for

failure to state a claim.

III. State-Law Claims

Given the dismissal of the Complaint’s federal claims (i.e.,

the Section 1983 claims), the Court should dismiss without

prejudice any related state-law claims (e.g., “slander[],” “libel,”

and “defamation of character” (Docket Entry 2 at 4, 5)). Federal

courts “have original jurisdiction of all civil actions arising

under the Constitution [and] laws . . . of the United States.” 28

U.S.C. § 1331.3 “[I]n any civil action of which the [federal]

courts have original jurisdiction, the [federal] courts shall have

supplemental jurisdiction over all other claims that are so related

to claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article III of the

United States Constitution.” 28 U.S.C. § 1367(a). Nevertheless,

3 Federal courts also maintain “original jurisdiction of all

civil actions where the matter in controversy exceeds the sum or

value of $75,000, exclusive of interest and costs, and is between

. . . citizens of different States.” 28 U.S.C. § 1332(a). Under

Section 1332(a), original “jurisdiction does not exist unless each

defendant is a citizen of a different State from each plaintiff.”

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)

(emphasis in original). In this case, the Complaint asserts that

Plaintiff and Defendants qualify as citizens of North Carolina

(Docket Entry 2 at 2-3), thus precluding original jurisdiction over

these actions under Section 1332(a). Moreover, the Complaint does

not purport to invoke diversity jurisdiction. (See id. at 3

(asserting jurisdiction pursuant to Section 1983).) Accordingly,

federal question jurisdiction provides the only source of the

Court’s original jurisdiction over this matter.

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a federal court “may decline to exercise supplemental jurisdiction

over a claim,” 28 U.S.C. § 1367(c), if it dismisses “all claims

over which [it] has original jurisdiction,” 28 U.S.C. § 1367(c)(3).

Here, as discussed above, Plaintiff’s Section 1983 claims

warrant dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). The Court

thus may appropriately decline to exercise supplemental

jurisdiction over Plaintiff’s state-law claims. See Shanaghan v.

Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (explaining that, pursuant

to Section 1367(c)(3), “a [federal] court has discretion to dismiss

or keep a case when it ‘has dismissed all claims over which it has

original jurisdiction,’” and that “[t]here are no situations

wherein a federal court must retain jurisdiction over a state law

claim, which would not by itself support jurisdiction” (emphasis in

original)); see also Wellman, 582 F. Supp. at 1528 (finding that,

“at best, [the p]laintiff’s complaint alleges only a state tort

action for defamation” and, as such, “it would be inappropriate to

exercise pendent jurisdiction over [the p]laintiff’s state tort

claims”).

CONCLUSION

In sum, the Herald-Sun and the News & Observer do not qualify

as “state actors” subject to suit under Section 1983, Plaintiff

cannot assert a defamation claim under Section 1983, and Plaintiff

has failed to allege a plausible claim for relief against Defendant

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Glines, Defendant Puryear, Defendant Tomlins, and Defendant

Elizabeth.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

IT IS RECOMMENDED that Plaintiff’s federal claims be dismissed

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii),

and his state claims be dismissed without prejudice under 28 U.S.C.

§ 1367(c)(3).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 2, 2019

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