LAND v. BURKE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BILLY RUSSELL LAND, )

)

Plaintiff, )

)

) 1:19cv1084

v. )

)

JUDGE BURKE, 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) 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 . . .(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 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

(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

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elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.!

Another ground for dismissal under 28 U.S.C. § 1915(e) (2) (B)

applies in situations where 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 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, such as judicial, legislative, and prosecutorial

immunity); 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

' 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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severely limit the damage remedy” (internal quotation marks

omitted)).

INTRODUCTION

Asserting jurisdiction pursuant to “42 U.S.C. § 1983,” for

violation of his “Right to Travel, First Amendment, Fourth

Amendment, [Fifth] Amendment, [and Eighth] Amendment

[constitutional rights]” (Docket Entry 2 at 3),2 Plaintiff

initiated this action against four defendants, in both their

individual and official capacities: (1) “John Doe Burke” (“Judge

Burke”), (2) “Brittany Puckett” (“ADA Puckett”), (3) “Jim O’Neill”

(“DA O’Neill”), and (4) “J.D. Stidham” (“Officer Stidham”) (id. at

1-3). The Complaint states as its basis for claims under Section

1983 that, by “enforcing General Statute 20-111(2) and G.S. 20-

309[,] Defendants are depriving [Plaintiff of] the right to travel,

and threats[ and] fines are assessed. The Defendants have

sentence[d Plaintiff] for contempt of court.” (Id. at 4.) In

support, the Complaint’s “Statement of Claim” alleges:

This matter came about on 11/4/2018 when Officer []

Stidham of the Winston-Salem Police Department initiated

a traffic stop for expired registration and [lack of]

liability insurance.

[] Plaintiff . . . stated to Officer [] Stidham that

[Plaintiff] was travel[]ing in his personal automobile,

not driving a commercial vehicle. [] Plaintiff [ ]

explained to Officer [] Stidham that he was in violation

2 For legibility reasons, this Memorandum Opinion omits

varying-sized font in all quotations of Plaintiff’s materials.

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of the United States Constitution by issuing [Plaintiff]

two citations for something protected by federal law and

the U.S. Constitution.

. . . .

During the week of 9/23/19 thr[ough] 9/26/19[, ADA

Puckett] informed [] Plaintiff [ ] through telephone

that his court date was on 9/26/19 at 9:00 in Courtroom

5B . . . . [ADA] Puckett [later] informed [Plaintiff] by

phone that the court proceedings w[ere] rescheduled to

1300 h[ours].

[] Plaintiff [ ] arrived at the Forsyth County

Courthouse at 1310 h[ours] for a scheduled evidentiary

hearing.

. . . Judge Burke [] presid[ed] over the hearing on

both 9/23/19 and 9/26/19.

During the evidentiary hearing, . . . Judge Burke

offered [] Plaintiff [ ] a plea bargain . . . . The

plea bargain [required ] Plaintiff [ to] plead guilty

to a non-moving violation.

[] Plaintiff [ ] informed Judge Burke that he had

a right to travel in his automobile[] and the plea

bargain was denied.

Immediately after [Plaintiff’s] refusal to take

[the] plea bargain[,] . . . Judge Burke directed sheriff

deputies to arrest [] Plaintiff [ ] for failure to

appear in court on 9/26/19, even though [] Plaintiff

[ ] was present in court . . . . Bond was set at one-

thousand dollars secured.

(Id. at 7-8 (quotation marks omitted).)

Finally, the Complaint asserts that Plaintiff “has and is

experiencing mental and emotional pain” and requests “[a] violation

fee of [Plaintiff’s] liberty [in the amount of] $250,000 per

incident or per 15 minutes or any part thereof.” (Id. at 5.) The

Complaint also requests “actual damages [in the amount of] $800,000

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[or] $250,000 [for] each defendant,” and “punitive damages [in the

amount of] $1,000,000 [ because] Defendants acted with malice,

deception[,] and abuse of power.” (Id. (parenthesis removed).)

DISCUSSION

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

Section 1983, Plaintiff must allege factual matter showing “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).3 Moreover, Plaintiff must

raise his Section 1983 claims “against a ‘person’” capable of

committing a violation of his constitutional rights. Conley v.

Ryan, 92 F. Supp. 3d 502, 519 (S.D. W. Va. 2015) (quoting 42 U.S.C.

§ 1983). As “Congress did not exercise its power to abrogate a

state’s Eleventh Amendment immunity when it enacted 42 U.S.C. §

1983,” Coffin v. South Carolina Dep’t of Soc. Servs., 562 F. Supp.

3 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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579, 585 (D.S.C. 1983), “a State is not a person within the meaning

of § 1983,” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64

(1989).

I. Judge Burke

First, the Complaint alleges that Judge Burke presided, as a

judge, over Plaintiff’s criminal matter. (See Docket Entry 2 at 7-

8.) In this regard, “[jJudges performing judicial acts within

their jurisdiction are entitled to absolute immunity from civil

liability claims,” In re Mills, 287 F. App’x. 273, 279 (4th Cir.

2008) (emphasis added), “even if such acts were allegedly done

either maliciously or corruptly,” King v. Myers, 973 F.2d 354, 356

(Ath Cir. 1992) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).

See also Mireles v. Waco, 502 U.S. 9, 11 (1991) (stating that

“judicial immunity is an immunity from suit, not just from ultimate

assessment of damages”). To determine whether an action

constitutes a “judicial act” protected by judicial immunity, the

Court must consider “whether the function is one normally performed

by a judge, and whether the parties dealt with the judge in his or

her judicial capacity.” King, 973 F.2d at 357. Thus, a plaintiff

can overcome the judicial immunity bar only if the judge’s “actions

were non-judicial or the actions were judicial but were taken

without jurisdiction.” Evans v. Downey, No. 1:15-CV-117, 2016 WL

3562102, at *2 (W.D. Ky. June 24, 2016) (unpublished) (citing

Mireles, 502 U.S. at 13).

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Here, the Complaint does not allege that Judge Burke lacked

jurisdiction over Plaintiff’s case. (See Docket Entry 2 at 7-8.)

Further, the actions Plaintiff challenges - conducting hearings,

issuing orders, setting bond amounts, and the like - all qualify as

judicial. See King, 973 F.2d at 357. In addition, even though

Plaintiff alleges that Judge Burke deprived Plaintiff of his

constitutional rights, judicial immunity still applies. See id. at

356 (ruling that judicial immunity attaches even where a judge’s

actions qualify as malicious or corrupt); see also Mikhail v. Kahn,

991 F. Supp. 2d 596, 660 (E.D. Pa. 2014) (holding that “[j]udges

are absolutely immune from suit” for money damages arising from

their judicial acts, even if such acts took “place ex parte and

without notice or a hearing” (internal quotation marks omitted)).

Accordingly, Judge Burke enjoys absolute judicial immunity from

Plaintiff’s damages claims.

Also, any official capacity claim for damages against Judge

Burke fails as a matter of law because the State of North Carolina

employs him, see N.C. Gen. Stat. §§ 7A-3 (bringing all court

operations under control of state), 7A-41 (establishing superior

courts and providing for superior court judges), 7A-130

(establishing district courts), 7A-132 (providing for district

court judges). “[A] suit against a state official in his or her

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

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a suit against the official’s office,” Will, 491 U.S. at 70, and “a

State is not a person within the meaning of $ 1983,” id. at 64.

II. DA O’Neill and ADA Puckett

Next, the Complaint includes DA O’Neill in the caption and in

its list of defendants, but fails to include any factual

allegations against him. (Compare Docket Entry 2 at 1, 3, with id.

at 1-8.) “Simply listing a name in a caption, or as a defendant,

is not sufficient to state a claim.” Key v. South Carolina, Civ.

Action No. 1:11-1613, 2011 WL 3846848, at *2 (D.S.C. Aug. 10, 2011)

(unpublished). The Complaint appears to pursue a claim against DA

O’Neill solely based on his position of authority, however,

theories of respondeat superior or liability predicated solely on

a defendant’s identity as a supervisor do not exist under Section

1983. See Igbal, 556 U.S. at 677. “Instead, a successful

individual capacity claim must allege that the defendant was

personally involved in the deprivation of [Plaintiff]’s rights.”

Bunting v. Cooper, Civ. Action No. 5:17-CT-3098, 2017 WL 5639948,

at *3 (E.D.N.C. May 23, 2017) (unpublished) (internal quotation

marks and citation omitted) (citing Iqbal, 556 U.S. at 676, and

Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691-92 (1978)). The

Complaint lacks any such allegations against DA O’Neill.

Turning to the individual capacity claim asserted against ADA

Puckett, 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.”).

The Complaint seeks damages from a state court prosecutor and,

further, fails to offer any factual allegations that would suggest

that ADA Puckett acted outside of the judicial phase of the

criminal prosecution. (See Docket Entry 2 at 7-8.) To the

contrary, the Complaint alleges only that ADA Puckett “informed []

Plaintiff [ ] through telephone that his court date was on

9/26/19 at 9:00” and later that it was “rescheduled to 1300

h[ou]rs.” (Id. at 7.) As a result, the Court should dismiss any

Section 1983 claims against ADA Puckett in her individual capacity

based on prosecutorial immunity.

Additionally, the Complaint purports to assert an official

capacity Section 1983 claim for damages against DA O’Neill and ADA

Puckett (see Docket Entry 2 at 2-3), but such claim fails as a

matter of law, because “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, 491 U.S. at 71, and

“a State is not a person within the meaning of [Section] 1983,” id.

at 64. In North Carolina, district attorneys and their assistants

act as arms of the State. See N.C. Gen. Stat. §§ 7A-60 (creating

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prosecutorial districts and position of district attorney), 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 attorney), 7A-65

(establishing compensation for district attorneys and assistant

district attorneys). As a result, any official capacity damages

claim under Section 1983 against DA O’Neill and ADA Puckett suffers

from an obvious fatal defect, as “neither a State nor its officials

acting in their official capacities are ‘persons’ under [Section]

1983,” Will, 491 U.S. at 71.

III. Officer Stidham

Lastly, as to Officer Stidham, the Complaint alleges that he

“initiated a traffic stop [on the Plaintiff] for expired

registration and [lack of] liability insurance.” (Docket Entry 2

at 7.) According to the Complaint, Plaintiff thereafter “stated to

Officer [] Stidham that he was travel[]ing in his personal

automobile,” and that, as a result, “Officer [] Stidham [ ] was in

violation of the United States Constitution.” (Id.) As previously

referenced, the Complaint alleges that “Defendants are depriving

[Plaintiff] of [his] right to travel.” (Id. at 4.)

Police officers possess immunity from Section 1983 liability

for money damages as long as “their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

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U.S. 800, 818 (1982). “Qualified immunity protects officers who

commit constitutional violations, but who, in light of clearly

established law, could reasonably believe that their actions were

lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

“For a constitutional right to be clearly established, its contours

must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks

omitted). Absent a constitutional violation, the qualified

immunity analysis “ends right then and there.” Abney v. Coe, 493

F.3d 412, 415 (4th Cir. 2007).

In this case, even liberally construed, the Complaint’s

assertion that Officer Stidham “depriv[ed Plaintiff of] the right

to travel” (Docket Entry 2 at 4), by “initiat[ing] a traffic stop

for expired registration and [lack of] liability insurance” (id. at

7), does not plausibly establish that Officer Stidham unlawfully

deprived Plaintiff of his constitutional rights. “The

constitutional right to travel is not a right to travel in any

manner, without regulation, and does not provide travelers a right

to ignore state traffic laws. Therefore, it cannot serve as a

reason why [an officer] would not be entitled to qualified

immunity.” Byndon v. Pugh, 350 F. Supp. 3d 495, 510 (N.D. W. Va.

Oct. 4, 2018) (internal citation omitted).

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Plaintiff’s official capacity claim against Officer Stidham,

which constitutes a claim “against the governmental entity

employing [him],” Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.

2006), i.e., the Winston-Salem Police Department, falls short for

an additional reason. Specifically, “claims against officers in

their official capacities are claims against the entities for which

the officers were acting . . . . [T]o establish liability on behalf

of the entity, it must be shown that the actions of the officers

were unconstitutional and were taken pursuant to a custom or policy

of the entity.” Giancola v. State of W. Va. Dep’t of Pub. Safety,

830 F.2d 547, 550 (4th Cir. 1987). The Complaint alleges injury

from the actions of Officer Stidham, but does not set out any

factual allegations showing that those actions resulted from any

official policy or custom of the Winston-Salem Police Department

(see Docket Entry 2 at 1-8), and, as such, any official capacity

claim fails as a matter of law, see Mitchell v. Rountree, No.

1:16CV1352, 2018 WL 3626432, at *4 (M.D.N.C. July 30, 2018)

(unpublished) (recommending dismissal of Section 1983 official

capacity claims against Winston-Salem police officers for the

plaintiff’s failure to “identify a municipal policy or custom that

caused his injury”).

In sum, the Complaint’s Section 1983 individual and official

capacity claims against Officer Stidham cannot proceed.

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CONCLUSION

The Court should dismiss the Complaint under Section

1915(e)(2)(B) 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 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).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 30, 2020

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