WASALAAM v. WELLMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SULYAMAN AL ISLAM WASALAAM, )

)

Plaintiff, )

)

) 1:19CV1214

v. )

)

ASHLEY WELLMAN, 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 2) filed

in conjunction with his pro se Complaint (Docket Entry 1). 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) as frivolous, for

failing to state a claim, and as barred by various immunity

doctrines.

LEGAL STANDARD

“The federal in forma pauperis 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) (internal quotation marks omitted).

“Dispensing with filing fees, however, [is] not without its

problems. . . . In particular, litigants suing in forma pauperis

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

relief against the administrative costs of bringing suit.” Nagy v.

FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this

concern, the in forma pauperis statute provides that “the [C]ourt

shall dismiss the case at any time if the [C]ourt determines . . .

the action . . . (i) is frivolous or malicious; (ii) fails to state

a claim on which relief may be granted; or (iii) seeks monetary

relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B).

As to the first of these grounds, “a complaint, containing as

it does both factual allegations and legal conclusions, is

frivolous where it lacks an arguable basis either in law or in

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 (some internal

quotation marks omitted). In determining frivolousness, the Court

may “apply common sense.” Nasim, 64 F.3d at 954. The Supreme

Court further has identified factually frivolous complaints as ones

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involving “allegations that are fanciful, fantastic, and

delusional. As those words suggest, a finding of factual

frivolousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible, whether or not

there are judicially noticeable facts available to contradict

them.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal

citations and quotation marks omitted).

Although federal courts must give pro se filings “liberal[ ]

constru[ction],” Estelle v. Gamble, 429 U.S. 97, 106 (1976), “[t]he

liberal construction which [courts] are obliged to afford a pro se

complaint is not without bounds,” Stratton v. Mecklenburg Cty.

Dep’t of Soc. Servs., 521 F. App’x 278, 290 (4th Cir. 2013).

“Admittedly, pro se complaints represent the work of an untutored

hand requiring special judicial solicitude. Nevertheless, they may

present obscure or extravagant claims defying the most concerted

efforts to unravel them. . . . [J]udges are not mind readers, and

the principle of liberal construction does not require them to

conjure up questions never presented to them . . . .” Id. at 290-

91 (internal citations and quotation marks omitted).

As to the second ground for dismissal, a plaintiff “fails to

state a claim on which relief may be granted,” 28 U.S.C. §

1915(e)(2)(B)(ii), when the complaint 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

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(2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). “Where a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short

of the line between possibility and plausibility of “entitlement to

relief.”’” Id. (quoting Twombly, 550 U.S. at 557). 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

statements, do not suffice.” Id.!

The final ground for dismissal generally applies to situations

in which doctrines established by the United States Constitution or

at common law immunize government entities and/or government

personnel from liability for damages. See, e.g., Pennhurst State

' 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) (citation

and internal 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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Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (discussing eleventh-

amendment immunity of states and state officials); Pierson v. Ray,

386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C.

§ 1983 and common-law immunity doctrines); cf. Allen v. Burke, 690

F.2d 376, 379 (4th Cir. 1982) (noting that, even where “damages are

theoretically available under [certain] statutes . . ., in some

cases, immunity doctrines and special defenses, available only to

public officials, preclude or severely limit the damage remedy”

(internal quotation marks omitted)).

BACKGROUND

Asserting claims under “42 U.S.C. § 1983,” for

“[ijJnf[r]ingement and violation [of his] 4°, 5%, 6, 13%, [and]

14*° [amendment] constitutional rights” (Docket Entry 1 at 8),’

Plaintiff initiated this action against five defendants:

(1) “Ashley Wellman” (“ADA Wellman”) (id. at 3), (2) “Attorney

Gregory Thompson” (“Attorney Thompson”) (id.), (3) “Office of

Administrator” (id.), (4) “Court Recorder,” (“Court Reporter

Filter”) (id.; see also id. at 1),* and (5) “Scotland County

* Citations to Docket Entry pages utilize the CM/ECF footer’s

pagination.

> Although the Complaint names and asserts claims against

“Court Recorder” as a defendant (Docket Entry 1 at 1; see also id.

at 3), it also refers to the “recorder” as “[Court Reporter]

Filter” (id. at 6). Further, the “Supplement” includes a portion

of a transcript from Plaintiff’s referenced trial which identifies

Court Reporter Filter as the “Official Court Reporter.” (Docket

Entry 3 at 3-12.) As such, for clarity purposes, this Opinion will

address this defendant as “Court Reporter Filter.”

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District Attorney Office” (id. at 1). As its basis for claims

under Section 1983, the Complaint alleges the following:

1) Plaintiff “was illegally detain[ed] 46 months [in the]

Scotland County Detention Center” (id. at 4);

2) Plaintiff “has been hunted down as [an] ani[]mal by being

trailed for [the] same charge already sentence[d] for in court

Feb[ruary] 22nd, [20]19, . . ., yet no one after agreement [] would

[] have property returned by [ADA] Wellman and Attorney Thompson”

(id. (parenthesis omitted));

3) Plaintiff “fil[ed] for a civil forfeiture of [his] truck

and all properties, which has not been done[,] only harras[s]ment

and illegal stops [resulting in] tickets, after being out only 10

months” (id.; see also id. (“This request was acknowledged by [the]

Clerk of Superior Court on . . . July 17, 2019”)); and

4) “[t]he Office of Public Defender [and the District

Attorney’s Office] did use [Court Reporter Filter] to coer[c]e

[Court Reporter Filter] to manipulate [the] outcome of a[n] ongoing

hearing” (id. at 5).

According to the Complaint, Plaintiff has “tr[i]ed to ambical

[sic] resolution[,] see civil forfeiture 1998 Silverod [sic] and

content therein: 8,000: [Plaintiff’s] property not being return[ed]

after agreement . . .[,] 46 months for punitive damage[, and for]

illegal[] detainment [Plaintiff] request[s] [$]40,000 per year.”

(Id. at 7.) The Complaint further states “that these are [sic] a

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more aggressive approach if not [there will] continue to be corrupt

officials in disguise as law enforcement in color their initives

[sic][,] impose their on [sic] whims and impulse[s] while creating

innue[n]dos [and] hyperbol[e] . . . .” (Id.)

Plaintiff also filed a “Supplement,” which appears to present

additional allegations, i.e., that he was “retri[e]d [in]

Dec[ember] 2019,” for a “driving” charge, constituting “double

je[o]p[a]rdy,” “misinprison [sic] felon,” and “deliberate

indifference.” (Docket Entry 3 at 1.) Additionally, the

Supplement includes references to “Federal Rules: 16-1-267,” “18

U.S.C. Code 3599 44.1 pg.” and “18 US Code § 3066A pg. 41.” (Id.)4

Next, the Supplement contains what Plaintiff describes as the

correct version of the trial judge’s statements and alleges that

“Judge’s orders failed, plus manufactor [sic] falsehoods by court

reporter[.]” (Id. at 1-2.) In addition, the Supplement sets out

information regarding a “1998 Silverode [sic] auctioned off

September 13, 2015[,] only 5[] months after initial arrest, found

not guilty of all charges[.] This civil forfeiture merchandise and

4 Neither the Complaint nor the Supplement provide any

reasoning for the inclusion of these citations; moreover, none of

the referenced authorities appear to exist, with the exception of

“18 U.S.C. Code 3599.” (Docket Entry 3 at 1.) That statutory

provision allows for the appointment of “[c]ounsel for financially

unable defendants . . . in every criminal action in which a

defendant is charged with a crime which may be punishable by

death.” 18 U.S.C. § 3599(a)(1). The Complaint and the Supplement

do not indicate that Plaintiff faced criminal charges of that

nature. (See generally Docket Entries 1, 3.)

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value truck over 6,000 [] 2400 wholesale items stole while in truck

plus value of truck $3400 . . . .” (Id. at 2.) Finally, the

Supplement provides a portion of the trial transcript which

reflects “the jury return[ing] a unanimous verdict . . . [of

g]uilty of driving while license revoked, impaired revocation”

against Plaintiff. (Id. at 5 (internal quotation marks omitted).)

That transcript excerpt also documents Plaintiff’s sentencing and

the parties’ discussion regarding the return of his personal

property. (Id. at 6-12.)

DISCUSSION

Presented in a conclusory and sometimes incoherent fashion,

the Complaint’s allegations apparently relate to Plaintiff’s

“challenge [to] an unjust legal system within the judicial

administration of Scotland County.” (Docket Entry 1 at 6.) The

Court “cannot shoulder the full burden of fashioning a viable

complaint for a pro se plaintiff,” Simon v. Shawnee Corr. Ctr.,

Civ. No. 13-521, 2013 WL 3463595, at *1 (S.D. Ill. July 9, 2013)

(unpublished) (emphasis in original). However, liberal

construction permits the conclusion that the Complaint seeks

relief, pursuant to Section 1983, for Defendants’ alleged “use [of]

their office, trust, position, tit[]le [and] subversive acts to

manipulate a[n] outcome . . .” (Docket Entry 1 at 6); more

specifically, Plaintiff seeks relief for events that occurred

before, during, and after his trial and sentencing in Scotland

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County Superior Court on February 22, 2019, including Defendants’

alleged failure to return Plaintiff’s personal property (see id. at

4-8; see also Docket Entry 3 at 1-12). Even liberally construed,

however, Plaintiff’s claims qualify as frivolous, fail as a matter

of law, and/or run afoul of immunity doctrines.

I. Failure to State a Claim

To state a claim for relief under Section 1983, Plaintiff must

show “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).°

A. Conclusory Allegations

First, beyond naming it as a defendant, the Complaint does not

even so much as mention the Office of Administrator. (See

generally Docket Entry 1.) Therefore, to the extent the Complaint

purports to state any Section 1983 claims against this defendant,

° 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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the Court should dismiss them for lack of factual matter suggesting

that the Office of Administrator 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.”).

Next, the Complaint falls short because it presents nothing

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

accusation[s],” Iqbal, 556 U.S. at 678. The Complaint simply

alleges in a conclusory manner without any factual support that

“[Plaintiff] was illegally detain[ed for] 46 months [in] Scotland

County Detention Center,” and that, “after filing for a civil

forfeiture of [his] . . . properties,” Plaintiff suffered

“harras[s]ment[,] illegal stops[, and] tickets.” (Docket Entry 1

at 4.) Additionally, the Complaint baldly asserts that “the Office

of Public Defender [and the] Office of District Attorney did use

[Court Reporter Filter] to coer[c]e [Court Reporter Filter] to

manipulate [the] outcome of an on[]going hearing.” (Id. at 5.)

As such, the Complaint’s allegations fail to plausibly

establish any viable claim. See Iqbal, 556 U.S. at 678 (mandating

that plaintiffs provide “factual matter” to support claims and

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ruling “legal conclusions” and “conclusory statements”

insufficient).

B. Improper Defendant - Scotland County District Attorney’s

Office

Additionally, the Scotland County District Attorney’s Office,

does not qualify as a “person” amenable to suit under Section 1983.

As “Congress did not exercise its power to abrogate a state’s

Eleventh Amendment immunity when it enacted [Section] 1983,” Coffin

v. South Carolina Dep’t of Soc. Servs., 562 F. Supp. 579, 585

(D.S.C. 1983), “a State is not a person within the meaning of §

1983,” Will v. Michigan Dept. of State Police, 491 U.S. 58, 64

(1989). The same conclusion applies “to States or governmental

entities that are considered arms of the State for Eleventh

Amendment purposes.” Id. at 70 (internal quotation marks omitted).

The Scotland County District Attorney’s Office constitutes an arm

of the State of North Carolina, see N.C. Gen. Stat. §§ 7A-60 (“The

State shall be divided into prosecutorial districts . . . . There

shall be a district attorney for each prosecutorial district

. . . .”), 7A-61 (empowering district attorneys to “prosecute in a

timely manner in the name of the State all criminal actions”), 7A-

63 (providing for assistant district attorneys to aid district

attorneys), 7A-65 (establishing compensation for district attorneys

and assistant district attorneys). Therefore, to the extent the

Complaint purports to assert any Section 1983 claims against

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Scotland County District Attorney’s Office, those claims fail as a

matter of law.

C. No State Action - Attorney Thompson

Further, the Complaint does not state a Section 1983 claim

against Attorney Johnson, because such claims require “state

action,” Hall v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980), and

the Complaint does not establish that Attorney Johnson qualifies as

a state actor (see Docket Entry 1 at 1-8). As discussed

previously, the Complaint offers only conclusory allegations and

fails to any specific factual matter regarding Attorney Johnson;

moreover, the portion of trial transcript provided in the

Supplement confirms that Attorney Johnson appeared “[o]n behalf of

[Plaintiff]” in a criminal trial which underlies this action. (See

Docket Entry 3 at 3-12.) The claims against Attorney Johnson

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 come within the reach of Section 1983, “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.

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2009) (brackets omitted). 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 Johnson so qualify (see Docket Entry 1 at 1-8).

To the contrary, the actions attributed to Attorney Johnson

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.”);

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

Aug. 4, 2009) (unpublished) (“[NJeither 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, Civ. Action No. 9:08-587, 2008 WL 4960423, at *3 (D.S.C.

Nov. 20, 2008) (unpublished) (concluding “that the actions of a

criminal defense attorney . . . are not state action”), appeal

dismissed, 328 F. App’x 283 (4th Cir. 2009); 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”).

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II. Immune Defendants

A. ADA Wellman

In addition, the Complaint seeks damages from a state court

prosecutor and, further, offers no factual allegations that would

suggest that ADA Wellman acted outside of the judicial phase of the

criminal prosecution. (See Docket Entry 1 at 4-8; see also Docket

Entry 3 at 3-12.) Coordinately, the Supreme Court has held that

“absolute immunity appl[ies] with full force” to a prosecutor’s

activities that remain “intimately associated with the judicial

phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409,

430 (1976); see also Polidi v. Bannon, 226 F. Supp. 3d 615, 620-21

(E.D. Va. Dec. 28, 2016) (“Prosecutors are absolutely immune from

suits for money damages for conduct in or connected with judicial

proceedings.”). As a result, the Court should dismiss any Section

1983 claims against ADA Wellman based on prosecutorial immunity.

B. Court Reporter Filter

Likewise, quasi-judicial immunity shields Court Reporter

Filter from Plaintiff’s claims. Such immunity exists “due to the

danger that disappointed litigants, blocked by the doctrine of

absolute immunity from suing the judge directly, will vent their

wrath on clerks, court reporters, and other judicial adjuncts.”

Ward v. Plymale, Civ. Action No. 3:12-6186, 2013 WL 6164277, at *19

(S.D. W. Va. Nov. 25, 2013) (unpublished) (internal quotation marks

omitted). This “immunity extends to those persons performing tasks

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so integral or intertwined with the judicial process that these

persons are considered to be figurative arms of the very commanding

judge who is immune.” Shelton v. Wallace, 886 F. Supp. 1365, 1371

(S.D. Ohio 1995); see also Jackson v. Houck, 181 F. App’x 372, 373

(4th Cir. 2006) (“Absolute immunity applies to all acts of

auxiliary court personnel that are basic and integral parts of the

judicial function.”). Accordingly, the Court should dismiss any

Section 1983 claims against Court Reporter Filter.

III. Frivolousness

As a final matter, to the extent the Court can discern any

other claims, they plainly appear “fanciful, fantastic, and

delusional,” Denton, 504 U.S. at 33 (internal citations and

quotation marks omitted). In that regard, the Complaint alleges

the following:

Country-city-town-state, faimly [sic] local jokers, town

clowns, hate job, [Plaintiff], or maybe circle of friend

influence, sororities, fraternity to misinform for any

p[urp]ose is not acceptable to mislead, undermind [sic]

a superior court judge is not enough now you are use

[sic] Judge Wallace to play party to you all shenningans

[sic] why because they just want to do there [sic] jobs,

not around? This is to now misrepresent another, throw

rock hind [sic] your hands; clear is [] a call

insubordination - obstruction justice[,] Johnny Q

Public[,] check - balance.

(Docket Entry 1 at 6.)

Therefore, even liberally construed, the Complaint presents

“clearly fictitious factual claims,” Stratton, 521 F. App’x at 289,

best described as “bizarre and delusional,” O’Brien v. United

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States Dep’t of Justice, 927 F. Supp. 382, 385 (D. Ariz. 1995), and

“ris[ing] to the level of the irrational [and] the wholly

incredible,” Denton, 504 U.S. at 33.

CONCLUSION

The Court should dismiss the Complaint under Section

1915(e)(2)(B) as frivolous, for failing to state a claim, and as

barred by various immunity doctrines.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 2) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

IT IS RECOMMENDED that the Complaint be dismissed pursuant to

28 U.S.C. § 1915(e)(2)(B).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 30, 2020

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