# WASALAAM v. WELLMAN

> District Court, M.D. North Carolina · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10253479

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253479

## How later opinions describe it (automated extraction)

- 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)
- 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)

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253479. Public record. Not legal advice.