ALLEN v. COOPER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv794

v. )

)

GOVERNOR ROY COOPER, 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

this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a 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

elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.* The Court may also anticipate

affirmative defenses that clearly appear on the face of the

complaint. Nasim, 64 F.3d at 955.

BACKGROUND

Asserting claims under “42 U.S.C. § 1983” for “[v]Jioclation[]

of [his] constitutional [r]Jights .. . [under the] □□ 5°, 6,

and 14** [A]jmendment[s],” Plaintiff initiated this action against

four defendants: (1) “Governor Roy Cooper” (“Governor Cooper”),

(2) “Roy Lee Guy” (“Defendant Guy”), (3) “The Office of Executive

Clemency,” and (4) “Laura Dian Loewe” (“Defendant Loewe”). (Docket

Entry 2 at 1-3.) The Complaint’s statement of claim states in its

entirety:

[Plaintiff] ha[s] a pending [p]lardon of innocence with

the Governor’s office; Case # P-17-0009. [Plaintiff] was

wrongfully incarcerated for offenses 98crs5208, 98crs7/980

& 98CRS7979. [ ] Since released from [p]rison and/or

Durham County Jail; [Plaintiff] hal[s] been subject to

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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cr[ue]l and un[]usual circumstances such as homelessness,

employment discrimination, [Plaintiff’s] name has been

slander[ed] endlessly and [Plaintiff is] continuously

harassed by police and locked while at school – pastence

[sic], and charges end up dismissed which leaves

[Plaintiff] wors[e] off. [Plaintiff] ha[s] written

letters and too called Gov[e]rnor[] Cooper[’s]

administration voi[c]ing [his] concerns and yet to no

avail[. Plaintiff] ha[s] also been the victim of

insurance fraud[ ] at the hand of the police[ in

D]urham[,] or so it appears[.]

(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 or simply for [his] pardon of innocence

to be granted” (id. at 6).

DISCUSSION

I. The Office of Executive Clemency

As an initial matter, the Office of Executive Clemency does

not qualify as a “person” subject to suit under 42 U.S.C. § 1983.

In that regard, 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

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deprivation was committed under color of state law.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).2

The Office of Executive Clemency falls within the North

Carolina Department of Public Safety (see Docket Entry 2-1 at 1),

a state agency. “[T]he state and its agencies are not persons

acting under state law.” Shelton v. Crookshank, No. 3:17CV108,

2018 WL 527423 (W. Va. Jan. 24, 2018) (unpublished) (internal

citation omitted) (dismissing Section 1983 claims against state

agencies including office of state’s governor), aff’d, 742 F. App’x

782 (4th Cir. 2018). Therefore, the Court should dismiss all

claims against the Office of Executive Clemency.

II. Official Capacity Claims

Next, the Complaint indicates that it asserts official

capacity claims against Governor Cooper, Defendant Guy, and

Defendant Loewe. (See Docket Entry 2 at 2-3.) To this extent, the

claims will fail for the same reasons that claims fail against the

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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Office of Executive Clemency. Although “state officials literally

are persons[, ] a suit against a state official in his or her

official capacity is not a suit against the official but rather is

a suit against the official’s office.” Will v. Mich. Dep’t. Of

State Police, 491 U.S. 58, 71 (1989). “Because a state is not a

‘person’ under [Section] 1983, it follows that state officials

acting in their official capacities cannot be sued for damages

under the statute.” Wells v. Northam, No. 3:18CV00040, 2018 WL

2978026, at *2 (W.D. Va. June 13, 2018) (unpublished) (citing Will,

491 U.S. at 71). The Complaint states that (i) Governor Cooper

serves as the “Governor of North Carolina,” (ii) Defendant Guy

serves as “Governor Cooper[’]s Administra[tor],” and (iii)

Defendant Loewe serves as “Assistant to the Governor

Administrator.” (Docket Entry 2 at 2-3; see also Docket Entry 2-

1.) Therefore, all defendants qualify as state officials and, as

such, no claim lies against them under Section 1983 for damages in

their official capacities.

Accordingly, the Court should dismiss all official capacity

damages claims against Governor Cooper, Defendant Guy, and

Defendant Loewe.

III. Individual Capacity Claims

As a final matter, the Complaint alleges that Plaintiff “ha[s]

a pending [p]ardon of innocence with the Governor’s office” (Docket

Entry 2 at 4), and requests that it “be granted” (id. at 6).

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According to the Complaint, Plaintiff has “written letters and []

called Gov[e]rnor[] Cooper[’s] administration voi[c]ing [his]

concerns and yet to no avail.” (Id.)

Plaintiff “generally has no constitutional right to clemency.”

Armando Soto v. North Carolina, Civ. Action No. 5:17-CT-03187, 2018

WL 7958118, at *1 (E.D.N.C. Sept. 27, 2018) (unpublished),

recommendation adopted, 2019 WL 1507405, at *1 (E.D.N.C. Apr. 5,

2019) (unpublished); see also Ohio Adult Parole Authority v.

Woodard, 523 U.S. 272, 283 (1998) (holding that “[t]here is [] no

substantive expectation of clemency”). Moreover, “[c]lemency is an

executive remedy, not a judicial remedy,” and, as such, “the

decision to grant or deny clemency is left to the discretion of the

governor.” Armando Soto, 2018 WL 7958118, at *2; see also N.C.

Const. art. III, § 5(6) (defining duties of the Governor of North

Carolina to include clemency). Additionally, although “truly

outrageous clemency procedures [may] rise to the level of a due

process violation . . . Plaintiff’s wholly conclusory allegation[s]

. . . fail[] to state any due process violation.” Id. (internal

citations omitted).

Further, “[b]ecause the doctrine of respondeat superior has no

application under [S]ection 1983, Governor Cooper cannot be held

liable under [Section] 1983 simply because of the position he

occupies as Governor of North Carolina.” Bunting v. Cooper, Civ.

Action No. 5:17-CT-3098, 2017 WL 5639948, at *3 (E.D.N.C. May 23,

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2017) (unpublished) (internal quotation marks and citation

omitted), recommendation adopted, 2017 WL 2692617 (E.D.N.C. June

22, 2017) (unpublished), aff’d, 700 F. App’x 315 (4th Cir. 2017).

“[TA] successful individual capacity claim must allege that the

defendant was personally involved in the deprivation of

[Plaintiff]’s rights.” Id. (citing Iqbal, 556 U.S. at 676, and

Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,

691-92 (1978)). The Complaint lacks any such allegations against

Governor Cooper.

In addition, beyond naming them as Defendants, the Complaint

does not even so much as mention Defendant Guy or Defendant Loewe.

(See id. at 4-7.) The Complaint’s aforementioned attachment, the

letter addressed to Plaintiff from the Office of Executive Clemency

(see Docket Entry 2-1), does bear Defendant Loewe’s signature in

her capacity as “Assistant to Governor’s Clemency Administrator,”

however, the letter merely (i) advises Plaintiff that “all

necessary documentation for [him] to be considered for a pardon has

been received,” (ii) provides the relevant case number, and (iii)

informs him of the events to follow. (Id.)

Thus, even considered collectively, the Complaint and its

attached document fail to establish a Section 1983 claim against

Governor Cooper, Defendant Guy, and Defendant Loewe due to the lack

of factual matter suggesting that any of those defendants violated

Plaintiff’s constitutional rights. See American Mfrs. Mut. Ins.

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Co., 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 Governor Cooper, Defendant Guy, and Defendant Loewe 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 individual capacity claims

alleged against Governor Cooper, Defendant Guy, and Defendant

Loewe, as well as any official capacity claim against them for

injunctive relief, for failure to state a claim.

CONCLUSION

In sum, the Office of Executive Clemency does not qualify as

a “person” subject to suit under Section 1983, Plaintiff’s claims

for damages against Governor Roy Cooper, Defendant Guy, and

Defendant Loewe in their official capacities constitute claims

against the State, not a “person” as required under Section 1983,

Plaintiff has no constitutional right to clemency, and Plaintiff

has otherwise failed to allege a plausible claim for relief against

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Governor Cooper, Defendant Guy, and Defendant Loewe in their

individual capacities, or for purposes of injunctive relief in

their official capacities.

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 this action be dismissed pursuant to 28

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

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 22, 2019

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