ALLEN v. BENNETT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN SR. )

)

Plaintiff, )

)

) 1:20cv184

v. )

)

ESTHER BENNETT, 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), as frivolous and 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 [C]ourt shall dismiss the case at any time

if the [C]ourt determines . . . the action . . . (i) is

frivolous . . . [or] (ii) fails to state a claim on which relief

may be granted . . . .” 28 U.S.C. § 1915(e)(2)(B).

As to the first of those 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

involving “allegations that are fanciful, fantastic, and

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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).

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 (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. MThreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.!'

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

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BACKGROUND

Asserting claims under “42 U.S.C.[] § 1983,” for Defendants’

alleged conspiracy to deprive him of his constitutional rights

under the “First Amendment : : : [, ] the [Fourteenth]

Amendment . . . [,] and the Fourth Amendment” (Docket Entry 2 at

4),° Plaintiff initiated this action against seven Defendants:

(1) “Esther Bennett” (“Defendant Bennett”), (2) “Mebane Police

Department,” (3) “Chief T. Caldwell” (“Chief Caldwell”),

(4) “Assistant Chief T. A. Byrd” (“Assistant Chief Byrd”),

(5) “Patrolman R. B. Aldridge” (“Officer Aldridge”), (6) “Durham

County [S]heriff [D]epartment,” and (7) “The City of Mebane” (id.

at 1-3).%* The Complaint alleges, in relevant part, the following:

On 02/17/2020, [Plaintiff] filed af[] [pro se]

petition for judicial review in [several criminal cases]

with the Clerk of Superior Court. There is reason to

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)).

* For legibility reasons, this Opinion omits all-cap font in

all quotations of Plaintiff’s materials.

> Although the Complaint includes “Mebane Police Department”

in its caption, it fails to include that entity in its list of

Defendants. (Compare Docket Entry 2 at 1, with id. at 2-3.) In

any event, for reasons discussed in this opinion, “Mebane Police

Department” does not gualify as a proper legal entity for suit.

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believe [that] this baffled employees of Durham County

Sheriff Department and/or Courthouse[. A]s a form of

retaliation[,] employees of Durham County Sheriff

Department [] communicated a scheme with other police

agencies. [ U]pon returning from [a] job

interview . . . [, Plaintiff] was traveling down

H[ighway] 119 South in the Town of Mebane [when] a[]

Durham County Sheriff vehicle passed [him] . . . and a[]

green Range Rover turning onto H[ighway] 119 South [and]

pulled in front of [Plaintiff’s] Audi Q3 from out of

nowhere[,] which caused [Plaintiff] to swerve to keep

from hitting the back of the vehicle[. Plaintiff] passed

Mebane’s Police Department and a[] police cruiser was in

the police station’s parking lot, parked north of the

police station.

[Plaintiff] passed the police station and pulled

over and got out of [his] Audi Q3[. Plaintiff] was taken

aback at how the driver of the green Range Rover had just

pulled out onto H[ighway] 119 heading south without

caution.

[Plaintiff] was standing at the rear of [his] Audi

Q3 when [Officer] Aldridge, a[] Caucasi[a]n male, turned

his c[ruise]r emergency lights on.

This officer got out of his patrol ve[hic]le[, along

with] a second officer on the passenger side of the

ve[hicl]e, and approach[ed Plaintiff] as he was asking

questions[, such as] is this your car, is it stolen[,]

and [also asking] for [Plaintiff’s driv[er’s]

license[. Officer Aldridge] flinched and/or made a

gesture as if he was going to retr[ie]ve his service

weapon, and one may assume this could have been a tactic

utilized as a[] feeble attempt to provoke [Plaintiff]

into assuming the worst and over[]reacting. A[] second

police cruiser showed up[.] This officer was a[] female

and [Plaintiff] was asked by her to get in [Plaintiff’s]

ve[hic]le. [Plaintiff] waited an entire hour before [he]

was issued a[] citation and after [he] was given the

citation[,] this female officer followed [Plaintiff]

around Mebane town limits until [he] was no[ longer] in

the town limits of Mebane.

Acting under color of state law, governmental

officials acting within their profession devised a scheme

in an attempt to retaliate for filing a[] petition for

judicial review [] in [Plaintiff’s criminal matters] in

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[the] Superior Court of Durham County. Moreover[,] the

above-mentioned personnel of Mebane Polic[e] Department

committed . . . racial profiling a[n] African-American

driving an Audi Q3, which infringes the equal protection

of laws. The equal protection of laws clause of the 14th

Amendment is meant to protect citizens from racial

profiling[.] Furthermore, personnel[] of Durham County

Sheriff Department[,] acting under color of state law,

ret[ali]ated by conjuring a scheme against [Plaintiff]

for filing a[] petition for judicial review in

[Plaintiff’s criminal matters]. The First

Amendment . . . communicates the right to petition the

government for a redre[ss] of grievances. By devising a

plan as a form of retaliation for filing a[] petition for

judicial review abridges one’s right to petition the

government for a redre[ss] of gr[ie]vances.

(Id. at 6 (parenthesis and ellipses in original omitted).) The

Complaint also includes a request for “the Court to compensate

[Plaintiff] in accordance with Federal law.” (Id. at 7.)

DISCUSSION

I. 1983 Conspiracy Claim

As an initial matter, to state a claim for relief under 42

U.S.C. § 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).4 To plead a civil conspiracy under Section 1983, Plaintiff

4 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

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must show that (1) Defendants acted jointly in concert, (2) to

commit some overt act in furtherance of the conspiracy, which

(3) resulted in the deprivation of Plaintiff’s constitutional

rights. See Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th

Cir. 1996). “[Plaintiff’s] evidence must, at least, reasonably

lead to the inference that [Defendants] positively or tacitly came

to a mutual understanding to try to accomplish a common and

unlawful plan.” Id. The Complaint fails to adequately state a

Section 1983 conspiracy claim.

Here, the Complaint rests upon implausible allegations that

Plaintiff’s “fil[ing of] a[] petition for judicial review [of his

criminal matters] with the Clerk of Superior Court [in Durham

County] . . . baffled employees of Durham County Sheriff’s

Department . . . [and that] as a form of retaliation[,] employees

of Durham County Sheriff’s Department [] communicated a scheme with

[Mebane Police Department]” resulting in an incident in which “a[]

Durham County Sheriff vehicle pass[ed Plaintiff while he was

driving a vehicle],” followed shortly by a “green Range

Rover . . . pull[ing] in front of [Plaintiff’s

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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vehicle] . . . caus[ing Plaintiff] to swerve” and ultimately

“pull[] over and g[e]t out of [his vehicle],” later resulting in

the arrival of Mebane police officers who issued Plaintiff a

citation and “followed [him] around Mebane . . . until [Plaintiff]

was no[ longer] in the town limits . . . .” (Docket Entry 2 at 6.)

In other words, “[a]ll Plaintiff offers is a conclusory and

somewhat outlandish theory . . . [and a]s such, Plaintiff’s

allegations regarding a conspiracy by Defendants do not rise above

the level of mere speculation and thus cannot serve as a basis for

relief.” Studivent v. Lankford, No. 1:10CV144, 2010 WL 1568451, at

*2 (M.D.N.C. Apr. 16, 2010) (unpublished) (internal citation

omitted), recommendation adopted, 2012 WL 1205722 (M.D.N.C. Apr.

11, 2012) (Schroeder, J.) (unpublished). “Conspiracy theory claims

like Plaintiff’s are routinely dismissed as frivolous . . . .”

Assa’ad-Faltas v. Carter, No. 1:14CV678, 2014 WL 4566037, at *11

(M.D.N.C. Sept. 15, 2014) (unpublished) (internal bracket and

quotation marks omitted) (collecting cases), recommendation

adopted, 2014 WL 5361342 (M.D.N.C. Oct. 21, 2014) (unpublished)

(Eagles, J.).

Accordingly, the Court should dismiss the Section 1983

conspiracy claim on that basis. Alternatively, the Complaint also

fails to state a claim for the additional reasons detailed below.

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II. Defendant Bennett, Chief Caldwell, and Assistant Chief Byrd

First, beyond naming them as Defendants, the Complaint does

not even so much as mention Defendant Bennett, Chief Caldwell,

and/or Assistant Chief Byrd. (See Docket Entry 2 at 1-7.) Thus,

the Complaint fails to establish Section 1983 claims against these

Defendants due to the lack of factual matter suggesting that they

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). Put another way, the Complaint does

not indicate in any meaningful way that Defendant Bennett, Chief

Caldwell, and/or Assistant Chief Byrd engaged in any violation of

Plaintiff’s constitutional rights as required 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.”).

To the extent the Complaint would base Chief Caldwell’s and

Assistant Chief Byrd’s liability upon their job titles, such

respondeat superior theories do not exist under Section 1983. See

id. 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)

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(citing Igbal, 556 U.S. at 676, and Monell v. Dep’t of Soc. Servs.

of City of N.Y., 436 U.S. 658, 691-92 (1978)).

The Court should therefore dismiss all Section 1983 claims

alleged against Defendant Bennett, Chief Caldwell, and Assistant

Chief Byrd for failure to state a claim.

III. Durham County Sheriff’s Department, Mebane Police Department,

and the City of Mebane

Next, neither the Durham County Sheriff’s Department nor

Mebane Police Department qualify as legal entities subject to suit.

See, e.g., Baker v. Durham Cnty. S.W.A.T. Team, No. 1:14CV878, 2016

WL 2621972, at *4 (M.D.N.C. May 5, 2016) (unpublished) (internal

citations and bracket omitted) (dismissing all claims alleged

against the Durham Police Department because “a police department

is not an independent legal entity with the capacity to sue and be

sued”), xrecommendation adopted sub nom. Baker v. Durham S.E.T.,

2016 WL 3747615 (M.D.N.C. July 11, 2016) (unpublished) (Osteen,

C.J.); Capers v. Durham Cnty. Sheriff Dept., No. 1:07CV825, 2009 WL

798924, at *5 (M.D.N.C. Mar. 23, 2009) (unpublished) (holding that

“Durham County Sheriff Department is not a legal entity capable of

being sued”).

That leaves only the possibility of a claim under Section 1983

against the City of Mebane, because “Congress did intend

municipalities and other local government units to be included

among those persons to whom [Section] 1983 applies,” Monell, 436

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U.S. at 689 (emphasis omitted). However, “‘a municipality cannot

be held liable solely because it employs a tortfeasor or, in other

words, a municipality cannot be held liable under [Section] 1983 on

a respondeat superior theory.’” Avery v. Burke Cnty., 660 F.2d

111, 114 (4th Cir. 1981) (quoting Monell, 436 U.S. at 691).

Instead, Section 1983 liability could attach to the City of Mebane

(or the Durham County Sheriff in place of the Durham County

Sheriff’s Department) only if “execution of [that] government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

inflicts the injury.” Collins v. City of Harker Heights, 503 U.S.

115, 121 (1992) (internal quotation marks omitted). Nowhere does

the Complaint allege that a policy or custom of the City of Mebane

(or the Durham County Sheriff) led to the alleged violations of

Plaintiff’s constitutional rights. (See Docket Entry 2 at 1-7.)

In sum, the Court should dismiss the Complaint’s Section 1983

claims against Durham County Sheriff’s Department, Mebane Police

Department, and the City of Mebane for failure to state a claim.

IV. Officer Aldridge

Lastly, as to Officer Aldridge, even liberally construed, the

Complaint’s conclusory assertions that Officer Aldridge (i) “got

out of his patrol ve[hic]le [accompanied by an additional officer]”

(id. at 6), (ii) asked Plaintiff questions regarding his ownership

of the vehicle, (iii) “[asked] for [Plaintiff’s] driv[er’s]

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license” (id.), and (iv) “flinched and/or made a gesture as if he

was going to retrieve his service weapon” (which Plaintiff asserts

“could have been a tactic utilized as a feeble attempt to provoke

[Plaintiff] into assuming the worst and over[]reacting” (id.)), do

not plausibly establish that Officer Aldridge unlawfully deprived

Plaintiff of his constitutional rights.5 Therefore, the Court

should dismiss the Section 1983 claim against Officer Aldridge for

failure to state a claim.

CONCLUSION

The Court should dismiss the Complaint under Section

1915(e)(2)(B) as frivolous and for failure to state a claim.

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.

5 The Complaint also alleges that “Mebane Police Department

committed . . . racial profiling.” (Docket Entry 2 at 6.)

However, beyond referring to Officer Aldridge as “Caucasi[a]n” and

identifying Plaintiff as “a[n] African-American [who was] driving

an Audi Q3” (id.), the Complaint fails to provide any other factual

information to support this claim and thus falls short. In that

regard, the Complaint (as detailed above) acknowledges that

Plaintiff received a citation after a near-crash in front of the

Mebane Police Department and does not deny the legitimacy of the

charged infraction. See Wilder v. Irvine, No. 6:08CV20, 2008 WL

2726946, at *3 (W.D. Va. July 11, 2008) (unpublished) (dismissing

Section 1983 “racial profiling” claim, in part, because the

complaint failed to show “what circumstances indicated to [the

p]laintiff that he had been the victim of racial profiling”)

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IT IS RECOMMENDED that this action be dismissed under 28

U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a

claim upon which relief can be granted.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 24, 2021

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