ALLEN v. CAMPBELL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv765

v. )

)

LAWRENCE M. CAMPBELL, 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, or alternatively under 28 U.S.C. § 1915(e)(2)(B)(i),

as frivolous due to untimeliness.

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 . . . is frivolous or

. . . fails to state a claim on which relief may be granted[.]” 28

U.S.C. § 1915(e)(2)(B). A complaint fails to state a claim 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

-2-

action, supported by mere conclusory statements, do not suffice.”

Alternatively, the United States Supreme Court has explained

that “a complaint, containing as it does both factual allegations

and legal conclusions, is frivolous where it lacks an arguable

basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989). “The word frivolous is inherently elastic and not

susceptible to categorical definition. . . . The term’s

capaciousness directs lower courts to conduct a flexible analysis,

in light of the totality of the circumstances, of all factors

bearing upon the frivolity of a claim.” Nagy, 376 F.3d at 256-57

(internal quotation marks omitted). As concerns this case, an

action fails as frivolous when “it appear[s] on the face of the

complaint . . . that the applicable statute of limitations bars

[the plaintiff’s claims] .. . .” Todd v. Baskerville, 712 F.2d

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)).

-3-

70, 74 (4th Cir. 1983); see also Nasim, 64 F.3d at 955 (holding

that courts may anticipate defenses when conducting IFP review),

956 (“[T]he [district] court found that [the plaintiff’s claim] was

barred by the applicable . . . statute of limitations. In these

circumstances, the district court did not abuse its discretion in

concluding that the action was frivolous . . . .”).

BACKGROUND

Asserting claims under “42 U.S.C. § 1983,” pursuant to “[t]he

sixth clause of the First Amendment[,] to petition the government

of a[] redress of grievances, the 14th [A]mendment section [O]ne,

[] the 8th [A]mendment, third clause[,] cruel and unusual

punishment, [] the last clause of the [6th A]mendment . . .” (Docket

Entry 2 at 3 (internal brackets omitted)), “[t]he 5th [A]mendment,

. . . [and] 13th [A]mendment . . .” (id. at 6), Plaintiff initiated

this action against nine defendants: (1) “Lawrence M. Campbell”

(“Attorney Campbell”); (2) “Dawn Y. Baxton” (“Attorney Baxton”);

(3) “Robert Brown Jr” (“Attorney Brown”); (4) “Gretchen M. Eng[el]”

(“Defendant Engel”); (5) “Jay Ferguson” (“Defendant Ferguson”); (6)

“Donald H. Beskind” (“Defendant Beskind”); (7) “Stephen C.

Freedman” (“Attorney Freedman”); (8) “Durham County Public

Defenders [O]ffice”; and (9) “The Center for Death Penalty

Litigation” (the “CDPL”) (id. at 1-3). The Complaint states the

following as its basis for asserting claims under Section 1983:

-4-

[Plaintiff’s ] attorneys used the death penalty as a

bargaining chip to induce [Plaintiff] into accepting an

alford plea for crimes [he] did not commit. [Plaintiff]

did not have comp[e]tent representation guaranteed by the

6th [A]mendment; moreover, [Plaintiff] was deprived of

life, liberty[,] and property without due process

guaranteed by the 5th [A]mendment. In truth, [Plaintiff]

was subjected to slavery which is forbidden by the 13th

[A]mendment not unless as a[] punishment for crimes one

has been convicted of ([Plaintiff] was wrongfully

imprisoned). [A]ll privileges gu[a]ranteed by the 14th

[A]mendment[,] section one[,] ha[ve] been infringed.

(Id. at 6 (parentheses in original).) The Complaint’s “Statement

of Claim” states in its entirety:

In August of 1999, [Plaintiff] was sentenced to a term of

54 years[ f]or the charge of First [D]egree [M]urder[,

which] was reduce[d] to [S]econd [D]egree [M]urder and

[Plaintiff] received a sentence of 237 months ([m]inimum)

and 294 months ([m]aximum)[, a]nd for First Degree

Statutory Sexual [O]ffense[, Plaintiff] received a

sentence of 288 months, [m]inimum, and 355 months

[m]aximum. The sentence for First Degree Sexual [Offense

r]an at the expiration of [Plaintiff’s sentence for

S]econd [Degree] Murder. [Plaintiff] was represented by

[Attorney] Brown[ a]nd [Attorney] Freedman. [T]he

prosecutor[s] for the State of North Carolina w[ere]

[F]reda Black and Tracey Cline.

(Id. at 7.) The Complaint also alleges that, “[f]rom the outset,

[Plaintiff] was wrongfully charged with [o]ffenses [he] did not

commit[], and [was] imprisoned for a duration of 12 years and 7

months[.] Moreover, due to the stigma that has been attached to

[Plaintiff’s] name[, he] ha[s] been subject to hardship which is

rife with misperception [sic], deceit[,] and neglect, ” (id. at 7),

and further requests “compensat[ion] for [] mental anguish and

punitive damages in the amount of $700,000.00” (id. at 8).

-5-

DISCUSSION

I. Attorney Campbell, Attorney Baxton, Attorney Brown, Attorney

Freedman, and the Durham County Public Defender’s Office

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

(1999).2 “The Bill of Rights is a negative proscription on public

action[,] to simply apply it to private action is to obliterate a

fundamental fact of our political order. Statutory and common law,

rather than the Constitution, traditionally govern relationships

between private parties.” Holly v. Scott, 434 F.3d 287, 291 (4th

Cir. 2006) (emphasis in original) (internal citations omitted).

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).

-6-

A. No State Action

The Complaint’s allegations fail to state Section 1983 claims

against Attorney Campbell, Attorney Baxton, Attorney Brown,

Attorney Freedman, and/or the Durham County Public Defender’s

Office, because such claims require “state action,” Hall v.

Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980), and the Complaint

does not establish that any of these defendants qualify as state

actors (see Docket Entry 2 at 1-9). The Complaint identifies

(i) Attorney Campbell as a “Public Defender,” (ii) Attorney Baxton

as an “Assistant Public Defender,” (iii) Attorney Brown as an “Ex-

Public Defender,” and (iv) Attorney Freedman as an “Ex-Staff

[A]ttorney for [the CDPL]/[n]ow Assistant Capital [D]efender.”

(Id. at 2, 3, 5.) The claims against Attorney Campbell, Attorney

Baxton, Attorney Brown, Attorney Freedman, and the Durham County

Public Defender’s Office 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,

-7-

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 Attorney Campbell, Attorney Baxton, Attorney Brown,

Attorney Freedman, and/or the Durham County Public Defender’s

Office so qualify (see Docket Entry 2 at 1-9).

To the contrary, the actions attributed to these Defendants

fall outside the reach of Section 1983. See, e.g., Polk Cty. v.

Dodson, 454 U.S. 312, 324 (1981) (“[A] public defender does not act

under color of state law when performing a lawyer’s traditional

functions as counsel to a defendant in a criminal proceeding.”);

Pretty v. Campbell, No. 3:19CV24, 2019 WL 4720983, at *4 (E.D. Va.

Sept. 26, 2019) (unpublished) (dismissing claims against public

defender and public defender’s office as “[p]rivate attorneys and

public defenders do not act under color of state or federal

authority when they represent defendants in criminal proceedings”);

Kirk v. Curran, No. 3:09CV301-3, 2009 WL 2423971, *1 (W.D.N.C. Aug.

4, 2009) (unpublished) (“[N]either public defenders nor private

criminal attorneys are ‘state actors’ under [Section] 1983.”),

aff’d, 357 F. App’x 529 (4th Cir. 2009); O’Neal v. South Carolina,

No. 9:08–587, 2008 WL 4960423, at *3 (D.S.C. Nov. 20, 2008)

(unpublished) (concluding “that the actions of a criminal defense

-8-

attorney . . . are not state action”), appeal dismissed, 328 F.

App’x 283 (4th Cir. 2009).

B. Thirteenth Amendment Claim

The Complaint also fails to state a claim against Attorney

Campbell, Attorney Baxton, Attorney Brown, Attorney Freedman,

and/or the Durham County Public Defender’s Office under the

Thirteenth Amendment. The Complaint alleges that Plaintiff was

“subjected to slavery[,] which is forbidden by the 13th

[A]mendment,” as a result of “[his] then attorneys,” who “used the

death penalty as a bargaining chip to induce [him] into accepting

an alford plea for crimes [that he] did not commit,” which resulted

in his “wrongful[] imprison[ment].” (Docket Entry 2 at 6.) The

Complaint also emphasizes that Plaintiff “was represented by

[Attorney] Brown[] and [Attorney] Freedman.” (Id. at 7.)

The Thirteenth Amendment provides that “[n]either slavery nor

involuntary servitude, except as a punishment for crime whereof the

party shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.” U.S. Const.

Amend. XIII, § 1. Notably “[t]he Thirteenth Amendment extends

beyond state action.” United States v. Kozminski, 487 U.S. 931,

942 (1988); see also Knowlin v. Wade, No. 1:17cv644, 2017 WL

3911589, at *3 n. 3 (M.D.N.C. Sept. 6, 2017) (unpublished)

(emphasizing that “[v]iolations of the Thirteenth Amendment do not

require that a defendant act under color of state law”). However,

-9-

the “Thirteenth Amendment does not give rise to an independent

cause of action. [P]laintiffs instead must avail themselves of the

remedies . . . that Congress has created under the power granted to

it in that amendment.” Westray v. Porthole, Inc., 586 F. Supp.

834, 838-39 (D. Md. 1984) (internal citations omitted). Here, the

Complaint alleges its claims under Section 1983 and, although

“[t]here is a private cause of action for violations of the

Thirteenth Amendment under [Section] 1983, [] that avenue is

confined to conduct by state actors,” Bhagwanani v. Howard Univ.,

355 F. Supp. 2d 294, 301 (D.C. Jan. 17, 2005) (citing Sumpter v.

Harper, 683 F.2d 106, 108 (4th Cir. 1982)). Therefore, given the

absence of state action, the Complaint has failed to properly

allege a claim under the Thirteenth Amendment.

In any event, the Complaint fails to allege factual matter

showing that Plaintiff endured slavery or involuntary servitude “by

the use or threatened use of physical restraint or injury, or by

the use of coercion through law or the legal process,” Kozminski,

487 U.S. at 948. (See Docket Entry 2 at 1-9.) In addition, as it

concerns the Complaint’s “wrongful imprisonment” allegation (see

id. at 6), other courts have held that, “where a prisoner is

incarcerated pursuant to a presumptively valid judgment and

commitment order . . . the [T]hirteenth [A]mendment’s prohibition

. . . is not implicated . . . even though the conviction may be

subsequently reversed.” Omasta v. Wainwright, 696 F.2d 1304, 1305

-10-

(11th Cir. 1983). Therefore, Plaintiff’s Thirteenth Amendment

claim, as alleged under Section 1983, fails as a matter of law.

Given all of these considerations, the Court should dismiss

the Section 1983 claims against Attorney Campbell, Attorney Baxton,

Attorney Brown, Attorney Freedman, and the Durham County Public

Defender’s Office.

II. Defendant Engel, Defendant Ferguson, Defendant Beskind, and

the CDPL

Next, beyond naming them as Defendants, the Complaint does not

even so much as mention Defendant Engel, Defendant Ferguson,

Defendant Beskind, and/or the CDPL. (See Docket Entry 2 at 1-9.)

Thus, the Complaint fails to establish Section 1983 claims

Defendant Engel, Defendant Ferguson, Defendant Beskind, and the

CDPL 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 Defendant Engel, Defendant Ferguson, Defendant Beskind, and/or

-11-

the CDPL 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 against Defendant Engel, Defendant

Ferguson, Defendant Beskind, and the CDPL for failure to state a

claim.

III. Statute of Limitations

Lastly, the Complaint’s claims obviously fail due to

Plaintiff’s failure to allege them within the applicable statute of

limitations period. “The statute of limitations for all [Section]

1983 claims is borrowed from the applicable state’s statue of

limitations for personal-injury actions . . . .” Tommy Davis

Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66-67 (4th

Cir. 2015). “[Section] 1983 claims arising in North Carolina are

limited by the three-year period for personal injury actions set

forth in [N.C. Gen. Stat.] § 1-52(5).” Id. at 67. “The

limitations period for a [Section] 1983 claim begins to run when

the plaintiff has a complete and present cause of action - in other

words, when it could have filed suit and obtained relief.” Id.

(internal quotation marks omitted). “Where, however, the action is

one for ‘damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose

-12-

unlawfulness would render a conviction or sentence invalid,’ the

action is not cognizable until the conviction or sentence has been

rendered invalid.” Taylor v. Deaver, No. 5:11CV341, 2012 WL

12905868, at *6 (E.D.N.C. Sept. 28, 2012) (unpublished) (quoting

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

Here, the Complaint bases its Section 1983 claims upon

Defendants’ actions to “induce [Plaintiff] into accepting an alford

plea for crimes [he] did not commit” for which Plaintiff was then

“wrongfully imprisoned.” (Docket Entry 2 at 6-7.) In this regard,

the Complaint alleges that, “in August of 1999, [Plaintiff] was

sentenced to a term of 54 years,” but ultimately alleges that, he

was “imprisoned for the duration of 12 years and 7 months.”

(Docket Entry 2 at 7.)3 Liberally construed, the Complaint asserts

that, upon his release from prison, Plaintiff’s “conviction or

sentence [was] rendered invalid,” Taylor, 2012 WL 12905868, at *6,

and thus Plaintiff’s causes of action accrued in March 2012, after

which the limitations period would have run, unimpeded, until it

expired in March 2015. Therefore, Plaintiff filed this action well

outside of the limitation period and his claims obviously fail on

that alternative ground.

3 The Complaint also notes that Plaintiff “was sentenced on

[August 26, 1999], approximately.” (Docket Entry 2 at 6.)

-13-

CONCLUSION

In sum, Attorney Campbell, Attorney Baxton, Attorney Brown,

Attorney Freedman, and the Durham County Public Defender’s Office

do not qualify as “state actors” subject to suit under Section

1983, Plaintiff has failed to properly assert a claim under the

Thirteenth Amendment, Plaintiff has failed to allege a plausible

claim for relief against Defendant Engel, Defendant Ferguson,

Defendant Beskind, and the CDPL, and Plaintiff has failed to allege

his claims within the applicable statute of limitations period.

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, or

alternatively pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for obvious

untimeliness.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 19, 2019

-14-