GIBSON v. FREEMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JOSEPH A. GIBSON, )

)

Plaintiff, )

)

v. ) 1:21CV791

)

CHRIS FREEMAN, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommended ruling on Plaintiff’s Motion for

Preliminary Injunction and/or TRO (Docket Entry 3; see also Docket

Entry 4 (Memorandum in Support of instant Motion)), filed in

conjunction with his Civil Rights Complaint (Docket Entry 2; see

also Docket Entry 2-1 (Attachments to Complaint)) and Application

to Proceed in District Court without Prepaying Fees or Costs

(Docket Entry 1).1 The Court should deny the instant Motion and

should dismiss this action under 28 U.S.C. § 1915(e)(2)(B), for

failure to state a claim and/or due to judicial and/or

prosecutorial immunity, except as to the individual-capacity claim

against Defendant Ms. Lutz for excessive force (and without

1 A magistrate judge may not “determine . . . a motion for

injunctive relief,” 28 U.S.C. § 636(b)(1)(A), but may

“submit . . . recommendations for the disposition, by a [district]

judge of the court, of any [such] motion,” 28 U.S.C.

§ 636(b)(1)(B).

prejudice to Plaintiff’s right to pursue individual-capacity claims

for excessive force and/or deliberate indifference to serious

medical needs against unnamed employees of the Rockingham County

Detention Center, if he later can identify them).

INTRODUCTION

In his Complaint, Plaintiff purports to sue 13 named

individuals (i.e., three state judges, a state magistrate, an

assistant district attorney, a state probation officer, an

attorney, the Sheriff of Rockingham County, and five of the

Sheriff’s employees), as well as 12 unnamed individuals (see Docket

Entry 2 at 1 (listing Defendants in caption)), under 42 U.S.C.

§ 1983, “for violation(s) of [P]laintiff’s Federally protected

Constitutional rights” (id. at 2), specifically, “[his] Due Process

and Equal Protection rights” (id. at 11) and “[his] right to be

free from cruel and unusual punishment” (id.).2 The Complaint

bases those claims on events:

1) beginning “May 11, 2020, [when P]laintiff was

served . . . with an Ex-parte Protective Order . . . sought by

[P]aintiff’s then live-in companion” (id. at 2 (emphasis omitted);

see also id. at 2-3 (stating that, after hearing on “July 21,

2020,” state judge ruled “that the Ex-parte order would continue to

2 The Complaint also asserts a claim under the Racketeer

Influenced Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.

(See Docket Entry 2 at 11-12.)

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be enforced for one year” (emphasis and internal citation

omitted)));

2) continuing through “August 31, 2021, [when,] under duress,

[P]laintiff, believing [he] could not receive any viable and

equitable justice in the entire [Rockingham County District Court],

pled guilty to two (2) counts of [violating] the original

protective order, and as a result was sentenced to one (1) year

supervised probation with a seventy-five day suspended sentence”

(id. at 4 (internal citation omitted); see also id. at 2 (“[O]n

June 10, 2020, [P]laintiff was alleged to have violated said

protective order, by sending a text message to [his former

companion].” (internal citation omitted)), 3 (alleging that, on May

26, 2021, “[P]laintiff was served with a ‘Criminal Summons’ for

speaking to [his] son[ in] alleged violation of said (expired)

protective order”), 4 (“On September 10, 2021, [P]laintiff, after

discovering newly discovered exculpatory evidence, instructed [his]

attorney to withdraw [P]laintiff’s plea, which is allowed and was

done within allowable time frame.”));

3) after which, “[o]n September 21, 2021, [P]laintiff was

required to report to [a p]robation [o]fficer” (id. at 4), and,

“under duress, signed the conditions of [P]laintiff’s probation”

(id.), whereupon the probation officer served “two arrest warrants

for violation of [the] conditions of probation” (id. (internal

quotation marks omitted)), resulting in Plaintiff’s appearance

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before a state magistrate and confinement in the Rockingham County

Detention Center (see id. at 5-6 (describing Plaintiff’s initial,

overnight detention and next-day appearance before state judge, who

“placed [Plaintiff] on house arrest [with] a $15,000 bond”));

4) until, “October 2, 2021, [when P]laintiff was released from

the [Rockingham County Detention Center] and placed on house arrest

with GPS monitoring” (id. at 9; see also id. at 6-8 (detailing

conditions of confinement, including incident in which, after

Plaintiff demanded to make a telephone call, “Defendant Lutz (very

heavy in body mass) dropped down upon [ P]laintiff’s back and began

bouncing up and down while laughing and say[ing]: ‘Here is your

phone call. You want to make us look bad, huh?,’” leaving

“Plaintiff [] gasping for air . . . while [a] Defendant John

Doe . . . began to slam [ P]laintiff’s head on the floor repeatedly

with [Defendant John Doe’s] foot,” causing Plaintiff to “pas[s]

out,” followed by his placement in an “isolated cell which appeared

to be ‘Rubber’ lined,” while “stripped of all clothing[ and

without] access to a toilet[ or] water,” in “pain [that] was

unbearable with fluid and blood dripping from the head wound

[P]laintiff received,” and “urinating blood,” where “[he] remained

in custody under the same conditions for seven (7) days”), 10 (“On

October 5, 2021, [P]laintiff appeared in the [Rockingham County

District Court] . . . and was told three times [by a state judge]

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that if [P]laintiff chose to represent himself, [he] would be held

to the same standards as an attorney trained at law.”)).

As relief, the Complaint seeks a combined total of $20,000,000

in compensatory, punitive, and treble damages (see id. at 13), as

well as “[a p]reliminary [i]njunction and [p]ermanent [i]njunction

barring the named and unnamed Defendants from harassing,

retaliating, and/or impeding in any manner the free exercise of

[P]laintiff’s US Constitutional Rights” (id. (emphasis and stray

comma omitted)) and “[a d]eclaratory [j]udgment stating the acts,

practices and policies as described in th[e

C]omplaint . . . violated [P]laintiff’s Constitutional Rights” (id.

(emphasis omitted)). Relatedly, the instant Motion asks the Court:

A) to “issue a preliminary injunction and/or temporary

restraining order directing [ D]efendants, and/or their agents, to

cease and to desist from any further unlawful arrest(s),

harassment, imprisonment, contact, and [c]ourt proceedings” (Docket

Entry 3 at 1-2); and

B) “[to] place [] Plaintiff, and any further pending legal

action against [] Plaintiff, by [ D]efendants, and/or their agents,

under the supervisory control of this Honorable Court” (id. at 2).

DISCUSSION

“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

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‘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 . . . fails to state a

claim on which relief may be granted; or seeks monetary relief

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

§ 1915(e)(2)(B) (internal paragraph number omitted).

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 lacks

“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) (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

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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.° Section 1915(e) (2) (b)’s

immunity-related, dismissal provision, in turn, generally applies

to situations where doctrines established by the United States

Constitution and/or at common law immunize governments and/or

government personnel from liability for monetary damages. see,

e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)

(discussing sovereign immunity of states and state officials under

Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967)

(describing interrelationship between Section 1983 and common-law

immunity doctrines, such as judicial, legislative, and

prosecutorial immunity); cf. Allen v. Burke, 690 F.2d 376, 379 (Ath

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”).

> 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).

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In this case, Plaintiff appears to meet the financial criteria

for pauper status (see Docket Entry 1); however, most of his claims

fail as a matter of law and/or falter on immunity grounds. To

begin, the Complaint does not allege any concrete actions or

omissions by Defendant Attorney Mark Keeney (let alone conduct on

his part constituting state action within the meaning of Section

1983). (See Docket Entry 2 at 1-14.) Accordingly, the Court

should dismiss any claim(s) against him, pursuant to Section

1915(e)(2)(B)(ii). See Iqbal, 556 U.S. at 678 (explaining that

absence of “factual matter” supporting claim warrants dismissal);

see also American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

49–50 (1999) (“To state a claim for relief in an action brought

under [Section] 1983, [a plaintiff] must establish [a]

depriv[ation] 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. . . . [T]he under-color-of-state-law element

of [Section] 1983 excludes from its reach merely private conduct,

no matter how discriminatory or wrongful.” (internal citation

omitted)); 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).

Next, the Complaint contains claims against three state judges

and a state magistrate for their roles in Plaintiff’s proceedings.

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(See Docket Entry 2 at 2–3 (describing ruling by Defendant

Honorable Erica Brandon “that the Ex-parte order would continue to

be enforced for one year” (emphasis and internal citation omitted),

4 (objecting to Defendant Chris Freeman “stat[ing] upon the [c]ourt

[r]ecord, inter alia, to the effect, ‘State Legislatures have

entrusted state judges to change State Statutes’” (emphasis

omitted)), 5 (accusing Defendant J.O. Lawrence of presiding while

under “conflict of interest” arising from his issuance of “phony

warrants”), 6 (referencing Defendant Freeman’s handling of

proceeding in which “Plaintiff did not receive a probable cause

hearing[ and] was not allowed to speak”), 10 (detailing Defendant

Christina Strader’s in-court statements to Plaintiff about

obligations of pro se litigants).) The Complaint also targets

(A) “[Defendant] Probation Officer Malcolm [Farrell for, on

September 21, 2021,] insist[ing P]laintiff was still subject to

probation and requir[ing him] to sign and date the conditions of

probation” (id. at 4 (internal quotation marks omitted)), as well

as “immediately” thereafter serving him with “two arrest warrants

for violation[s]” (id. (internal quotation marks omitted)), and

(B) a state prosecutor, “Defendant Jeffrey Allen Hux, [for] stating

[in a hearing that P]laintiff was a danger to the general public

and [] asking for a $100,000.00 bond” (id. at 6).

“Judges performing judicial acts within their jurisdiction are

entitled to absolute immunity from civil liability claims,” In re

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Mills, 287 F. App’x. 273, 279 (4th Cir. 2008) (emphasis added); see

also Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (‘As

judicial officers, magistrates are entitled to absolute immunity

for acts performed in their judicial capacity.”), “even if such

acts were allegedly done either maliciously or corruptly,” King v.

Myers, 973 F.2d 354, 356 (4th Cir. 1992). “Probation officers are

also entitled to absolute immunity from suits for damages for

alleged conduct performed in a quasi-judicial capacity .... A

determination that a violation of a [supervisee’s] conditions of

supervision has occurred is a quasi-judicial function entitled to

such immunity.” Young-Bey v. Jones, Civ. No. 21-771, 2021 WL

1215771, at *2 (D. Md. Mar. 31, 2021) (unpublished); see also

Douglas v. Muncy, 570 F.2d 499, 500-01 (4th Cir. 1978) (“[P]lursuant

to [Section] 1983, [the plaintiff] asked for damages for the denial

of his constitutional rights from . . . his parole officer, who

allegedly had arbitrarily enforced the conditions of his

parole... . [T]he district court was correct in its conclusion

that . . . [the plaintiff’s] parole officer[] was [] immune from

such liability.”). Coordinately, “absolute immunity appl[ies] with

full force,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), to a

prosecutor’s conduct “intimately associated with the judicial phase

of the criminal process,” id.

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Given that authority, the Court should dismiss any individual-

capacity claims against Defendants Freeman, Farrell, Lawrence,

Strader, Hux, and Brandon, pursuant to Section 1915 (2) (B) (iii) .*

“To the extent the Complaint alleges that Defendant Farrell

acted as an arm of a prosecutor (rather than a judge) (see Docket

Entry 2 at 9 (“On or about September 24, 2021, Defendant Farrell

served [P]laintiff with two separate violations of conditions of

probation. Defendant Farrell expressed that he was ordered by the

prosecution to violate [Pllaintiff[’s probation] and _ serve

[ Pllaintiff.” (stray comma omitted))), absolute immunity still

defeats the claim. See, e.g., Pilgrim v. Delaney, No. 7:20CV2325,

2021 WL 274301, at *2 (D.S.C. Jan. 27, 2021) (unpublished) (“[The

pllaintiff also brings claims against .. . his probation officer,

related to the revocation of his probation. ... [The probation

officer] is entitled to prosecutorial immunity with respect to her

part in [the] revocation.”). Alternatively, “[Te]lven if

[D]efendants [Farrell and Hux] are not cloaked in absolute

immunity, [Plaintiff’s] constitutional claim would be precluded by

qualified immunity. In contrast to absolute immunity, qualified

immunity shields a government official from liability for civil

monetary damages if the official’s conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Gant v. United States

Probation Office, 994 F. Supp. 729, 734 (S.D.W. Va. 1998). The

Complaint does not allege factual matter sufficient to show that

Defendants Farrell and Hux violated any such clearly established

right in connection with the probation violation warrants; instead,

the Complaint relies on conclusory allegations (which fall short

under Iqbal). (See Docket Entry 2 at 4.) The Complaint’s

Racketeer Influenced Corrupt Organizations (“RICO”) claim similarly

rests on bald assertions that “Defendants are engaged in a pattern

of racketeering activity committed in furtherance of an ongoing

‘Criminal Enterprise,’” that they “conspir[ed] in unison to

‘Obstruct Justice,’” and that they “have, and continue to use

‘Interstate Commerce’ to further the goals of the ‘Criminal

Enterprise.’” (Id. at 11-12.) As a result, it fails as a matter

of law (meriting dismissal under Section 1915 (2) (B) (11)). See,

e.g., Sealy v. U.S. Bank Nat’l Ass’n, No. 3:20CV431, 2021 WL

1178063, at *3 (W.D.N.C. Mar. 29, 2021) (unpublished) (“[The

pllaintiffs’ conclusory and unspecified statements in thel[ir

cJomplaint fail to establish the necessary elements of a RICO

claim, and fail to allege a pattern of racketeering activity with

(continued...)

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The foregoing analysis leaves, as named Defendants, Rockingham

County Sheriff Sam Scott Page and five of his employees, Captain

Shane Bullins, Jackson (identified only as “NC Sheriff”), Ms.

“(...continued)

the reguired specificity.”). Further, although the Complaint

alleges that Defendant Farrell knew about Plaintiff’s mistreatment

in detention, but failed to stop it (see Docket Entry 2 at 9),

those allegations cannot support a conditions-of-confinement-—based

claim against Defendant Farrell, as sheriffs or their employees

(not probation officers) control jail operations in North Carolina,

see N.C. Gen. Stat. § 162-22 (“The sheriff shall have the care and

custody of the jail in his county; and shall be, or appoint, the

keeper thereof.”). Finally, the official-capacity claims for

damages against Defendants Freeman, Farrell, Lawrence, Strader,

Hux, and Brandon warrant dismissal under Section 1915 (2) (B) (il),

because (A) the State of North Carolina employs them, see, e.g.,

N.C. Gen. Stat. $$ 7A-3 (bringing all court operations under State

authority), 7A-60 et seq. (creating prosecutorial districts,

establishing positions of district attorney and assistant district

attorney to prosecute criminal actions in name of State, and

providing for their compensation), 15-204 et seq. (establishing

position of probation officer under Secretary of Public Safety to

serve state courts)), (B) “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 v. Michigan

Dep’t_ of State Police, 491 U.S. 58, 71 (1989), (C) “[a]ls such, it

is no different from a suit against the State itself,” id., and

(D) “a State is not a person within the meaning of [Section] 1983,”

id. at 64. “Of course a state official in his or her official

capacity, when sued for injunctive relief, would be a person under

[Section] 1983 because official-capacity actions for prospective

relief are not treated as actions against the State.” Id. at 71

n.10 (internal quotation marks omitted). Such claims, however,

still cannot proceed against Defendants Freeman, Lawrence, Strader,

and Brandon, because (as judges) “they are immune from requests for

injunctive relief,” Pearson v. West, No. 5:16CT3182, 2017 WL

5163368, at *5 (E.D.N.C. June 26, 2017) (unpublished),

recommendation adopted, 2017 WL 5163235 (E.D.N.C. Nov. 7, 2017)

(unpublished), or against Defendants Farrell and Hux, because the

Complaint does not allege facts showing that “execution of [the

State’s] policy or custom. . . inflict[ed] the [alleged] injury,”

Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992)

(internal quotation marks omitted) (see Docket Entry 2 at 1-14).

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Overby (identified as “Detention Staff member”), Lutz (identified

as “Detention Staff Member”), and Captain Billy King. (Docket

Entry 2 at 1 (listing Defendants in caption).) The Complaint makes

no allegations specific to Defendants Page or Bullins. (See Docket

Entry 2 at 1-14.) The Court therefore should dismiss any claim(s)

against them, pursuant to Section 1915(e)(2)(B)(ii). See Iqbal,

556 U.S. at 678 (explaining that absence of “factual matter”

supporting claim warrants dismissal).5

As to Defendant Overby, the Complaint alleges only as follows:

On September 22, 2021, Defendant Overby

question[ed P]laintiff while at the [Rockingham County

Detention Center] as to whether [ P]laintiff wanted an

attorney, and requested [ P]laintiff’s Social Security

number[. P]laintiff told Defendant Overby [P]laintiff

wanted a phone call. Defendant [Overby] said she knows

nothing about phone calls and asked again for

[P]laintiff’s Social Security number, and [ P]laintiff

explained he did not want to apply for Social Security,

and no one should retaliate against [ P]laintiff for

refusing to give a Social Security number. Defendant

Overby told [P]laintiff[ that P]laintiff would never see

a judge if [P]laintiff did not give up [P]laintiff’s

Social Security number. Defendant Overby then stated

“whatever, go back to your cell”.

5 To the extent Plaintiff would rest his claim(s) on the

supervisory title(s) of the above-referenced Defendants and/or the

doctrine of respondeat superior, such theories of liability do not

exist under Section 1983. See Iqbal, 556 U.S. at 676-77

(“[V]icarious liability is inapplicable to . . . [Section] 1983

suits . . . . In a [Section] 1983 suit . . . – where masters do

not answer for the torts of their servants – the term ‘supervisory

liability’ is a misnomer. . . . [E]ach Government official, his or

her title notwithstanding, is only liable for his or her own

misconduct.”).

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(Docket Entry 2 at 5.) Significantly, the Complaint further admits

that, contrary to Defendant Overby’s statement that “[P]laintiff

would never see a judge if [P]Jlaintiff did not give up

[P] laintiff’s Social Security number” (id.), “approximately six (6)

hours [after Defendant Overby made that statement, P]laintiff was

presented before a video screen” (id. at 6), for a proceeding

before a judge, who “placed [Plaintiff] on house arrest [with] a

$15,000.00 bond” (id.). Neither a jail staff member’s request for

a detainee’s Social Security number (in connection with assessment

of qualification for court-appointed counsel) nor an unfulfilled

admonition that failure to comply with that request would result in

denial of access to a court proceeding violates the United States

Constitution. See, e.g., Lewis v. Casey, 518 U.S. 343, 349 (1996)

(reiterating “that an inmate alleging a violation of [the

constitutional right of access to courts] must show actual

injury”); Cassano v. Carb, 436 F.3d 74, 75 (2d Cir. 2006) (“[T]he

Constitution does not provide a right to privacy in one’s SSN.”);

see also Bowen _v. Roy, 476 U.S. 693 (1986) (rejecting

constitutional challenge to requirement that applicant for

government benefits submit Social Security number) .°®

° Subject to various exceptions, “Section 7[ of the Privacy

Act of 1974, 5 U.S.C. § 552a,] ‘makes it illegal for a governmental

agency to deny an individual any right, benefit, or privilege based

on the individual’s refusal to disclose his or her social security

number.’” Haywood v. Owens, No. 8:19CV1025, 2019 WL 2292548, at *3

(continued...)

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The entirety of the Complaint’s allegations about Defendant

Jackson consist of the following: “[O]n [September 22, 2021,

Pllaintiff asked Defendant Jackson if [P]laintiff could use a

telephone and see a doctor, to which Defendant Jackson replied, ‘I

will see what I can do.’ Plaintiff did not speak with [Defendant]

Jackson further that evening.” (Docket Entry 2 at 7-8.) Those

allegations fail to state a claim for at least two reasons.

First, “pretrial detainees do not have a constitutional right

to . . . telephone privileges.” Oliver v. Butler, No. 5:12CT3060,

2015 WL 846755, at *10 (E.D.N.C. Feb. 26, 2015) (unpublished);

accord, e.g., Boose v. Adkins, No. 3:18CV1480, 2020 WL 3086885, at

°(,..continued)

(D.S.C. Apr. 23, 2019) (unpublished) (internal brackets omitted)

(quoting Greidinger v. Almand, 30 F. Supp. 3d 413, 415 (D. Md.

2014)), recommendation adopted, 2019 WL 2284931 (D.S.C. May 29,

2019) (unpublished). That provision may not fall within the scope

of Section 1983 and may not impose liability on local governmental

units. See, e.g., Dittman v. California, 191 F.3d 1020, 1029 (9th

Cir. 1999). In any event, “regardless of whether [Section] 1983

provides a mechanism for enforcing [the] Privacy Act and

irrespective of Section 7’s applicability to state and local

agencies, the Privacy Act is not applicable to individuals.” White

v. Cain, No. 2:10CV1182, 2011 WL 1087489, at *7 (S.D.W. Va. Mar.

21, 2011) (unpublished). Moreover (and to the extent the

Complaint’s official-capacity claim against Defendant Overby

effectively lies against an entity - e.g., the Office of the

Sheriff of Rockingham County - rather than an individual}, the

above-quoted allegations of the Complaint confirm that Plaintiff

promptly received a court appearance and thus neither Defendant

Overby nor her employing entity “denied [Plaintiff] a legal right

based on [his] nondisclosure [of his Social Security number] so as

to potentially violate[] the Privacy Act,” El-Bey v. North Carolina

Bd. of Nursing, No. 1:09CV753, 2009 WL 5220166, at *2 (M.D.N.C.

Dec. 31, 2009) (unpublished), recommendation adopted, 2010 WL

3283070 (M.D.N.C. Aug. 19, 2010) (unpublished).

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*19 (S.D.W. Va. May 20, 2020) (unpublished), recommendation

adopted, 2020 WL 3078333 (S.D.W. Va. June 10, 2020) (unpublished) ;

Bratcher v. Hampton Roads Reg’l Jail, No. 1:16CV224, 2018 WL

1037052, at *7 (E.D. Va. Feb. 21, 2018) (unpublished), aff’d, 738

F. App’x 793 (4th Cir. 2018). Second, assuming Plaintiff’s

condition at the time of his alleged interaction with Defendant

Jackson manifested signs of injury “so obvious that even a lay

person would easily recognize the necessity for a doctor’s

attention,” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)

(internal quotation marks omitted), the Complaint does not

establish that Defendant Jackson engaged in unconstitutional

deliberate indifference by “disregard[ing] the risk posed by th[at]

serious medical need[],” id. (internal quotation mark omitted) .’

In particular, the Complaint’s allegations about Defendant

Jackson leave open two obvious possibilities: (1) Defendant

Jackson intentionally - or at least with a “mens rea (or ‘guilty

mind’) equivalent to criminal-law recklessness,” Campbell v.

Florian, 972 F.3d 385, 395 (4th Cir. 2020) (italics in

original) - did not follow through on his promise to “see what [he]

’ Although the above-quoted case involved a prison inmate

whose claim for “fail [ure] to provide adequate medical

care . . . sound[ed] in the Eighth Amendment,” Iko, 535 F.3d at

241, in parallel fashion, “a pretrial detainee makes out a due

process violation if he shows deliberate indifference to serious

medical needs,” Martin v. Gentile, 849 F.2d 863, 871 (4th Cir.

1988) (internal quotation marks omitted).

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c[ould] do [about Plaintiff seeing a doctor]” (Docket Entry 2 at

8); or (2) Defendant Jackson did follow through on that promise,

but – through no fault (or at least no fault greater than

negligence) on Defendant Jackson’s part – Plaintiff still did not

get to see a doctor (e.g., Defendant Jackson notified the medical

staff at the Rockingham County Detention Center that Plaintiff

needed to see a doctor, but that staff took no action). The latter

scenario would not reflect deliberate indifference by Defendant

Jackson. See Iko, 535 F.3d at 241 (“Beyond [actual] knowledge [of

the risk of harm to the inmate arising from his medical needs],

however, the officer must also have recognized that his actions

were insufficient to mitigate the risk of harm to the inmate

arising from his medical needs.” (internal quotation marks

omitted)); see also Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999) (“Deliberate indifference is a very high standard — a showing

of mere negligence will not meet it.”). Moreover, because the

Complaint offers no basis to select “between th[e latter,] obvious

alternative explanation for [Plaintiff’s failure to see a doctor

after speaking to Defendant Jackson] and the purposeful, invidious

[neglect by Defendant Jackson which Plaintiff] asks [the Court] to

infer,” Iqbal, 556 U.S. at 682 (internal quotation marks omitted),

the “[C]omplaint has not nudged [Plaintiff’s] claims of [deliberate

indifference] across the line from conceivable to plausible,” id.

at 680 (internal brackets and quotation marks omitted).

-17-

Turning to Defendant King, the Complaint alleges, “[o]n

information and belief, [that] several members of [ P]laintiff’s

family and [P]laintiff’s pastor made several contacts with

Defendant King, and were told that [P]laintiff was not being

released because there were no GPS units available, even though

[P]laintiff had made bond.” (Docket Entry 2 at 9-10 (stray comma

omitted); see also id. at 10 (“On information and belief, [a

b]ondsman . . . made several telephone calls to Defendant King in

an attempt to seek [P]laintiff’s release after bond was posted; to

no avail.”).) The Complaint, however, additionally acknowledges

that (A) the state court’s release order required not only

Plaintiff’s posting of a bond, but also his “place[ment] on house

arrest” (id. at 6), and (B) Defendant King explained to persons

inquiring on Plaintiff’s behalf “[t]hat there were only 25 GPS

units in the county, and that[ P]laintiff would have to wait until

someone violated their conditions of probation, or a protective

order [while] wearing a GPS monitor, so one would become available

[for Plaintiff’s release on house arrest]” (id. at 9–10).

Those acknowledgments preclude liability against Defendant

King, particularly given that “the United States Constitution does

not establish an absolute right to bail, nor does federal statutory

law provide a right to bail in state criminal cases. . . . As

Plaintiff ha[d] no federal right to be released on bond, his claims

regarding [delayed release pending GPS monitor availability] must

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fail.” Odom v. Smalls, C.A. No. 3:09-629, 2009 WL 3805594, at *3

(D.S.C. Nov. 12, 2009) (unpublished); see also Dawson v. Board of

Cnty. Comm’rs of Jefferson Cnty., 732 F. App’x 624, 632 (10th Cir.

2018) (“[The] asserted right to be free from pretrial detention

having paid court-ordered bond, but awaiting the fulfillment of

another court ordered release condition, is not a fundamental

right. .. . Thus, so long as the policies which caused [the]

continued detention are not imposed for the purpose of punishment,

but instead reasonably relate to a legitimate governmental

objective, the policies are constitutional . . . .” (internal

Citation and quotation marks omitted)) .°

In sum, the Court should dismiss the claims against Defendants

Overby, Jackson, and King, pursuant to Section 1915(e) (2) (B) (ii),

for failure to state a claim. However, the Complaint’s allegations

against Defendant Lutz stand on different ground. In that regard,

as the United States Supreme Court has decreed:

® The allegation that, “while held at the [Rockingham County

Detention Center], at least $100.00 was stolen from [ P]laintiff’s]

wallet while in the care and custody of [Defendant] King” (Docket

Entry 2 at 10) likewise does not make out a Section 1983 claim.

See Tate v. Smith, No. 1:14CV125, 2017 WL 1843269, at *12 (M.D.N.C.

May 5, 2017) (unpublished) (“North Carolina law permits an

individual to pursue a conversion claim against ‘a public official

who by an unauthorized act wrongfully deprives an owner of his

property.’ Wilkins v. Whitaker, 714 F.2d 4, 6 (4th Cir. 1983)

(citing Gallimore v. Sink, 27 N.C. App. 65, 67, 218 S.E.2d 181, 182

(1975)). [The p]laintiff’s ability to pursue a conversion claim

against [the d]Jefendants ‘satisfies the requirements of due

process.’ Id. at 7.” (internal footnote omitted)), recommendation

adopted, slip op. (M.D.N.C. May 31, 2017).

-19-

[T]he Due Process Clause protects a pretrial detainee

from the use of excessive force that amounts’ to

punishment. .. . [S]luch ‘punishment’ can consist of

actions taken with an expressed intent to

punish. ... [I]n the absence of an expressed intent to

punish, a pretrial detainee can nevertheless prevail by

showing that the actions are not rationally related toa

legitimate nonpunitive governmental purpose or that the

actions appear excessive in relation to that purpose.

Kingsley v. Hendrickson, 576 U.S. 389, 397-98 (2015) (some internal

quotation marks omitted). Because the Complaint alleges facts

(recounted in the Introduction) that (if believed) would support a

finding that Defendant Lutz employed excessive force against

Plaintiff under the above-quoted standard, the Court should permit

that individual-capacity claim to proceed.’

° The Complaint likewise contains sufficient factual matter

(again, as quoted in the Introduction) to sustain a claim for

excessive force against the Defendant John Doe who allegedly

followed up on Defendant Lutz’s battery by stomping Plaintiff’s

head against the ground (see Docket Entry 2 at 6) and (at least

arguably) may allege facts adequate to state a claim for deliberate

indifference to serious medical needs against two other

Defendant(s) John Doe(s) (see id. at 8). Nonetheless, “[t]he

designation of a John Doe defendant is generally not favored in the

federal courts... .” Chidi Njoku v. Unknown Special Unit Staff,

No. 99-7644, 217 F.3d 840 (table), 2000 WL 903896, at *1 (4th Cir.

July 7, 2000) (unpublished); see also Strauss v. City of Chicago,

760 F.2d 765, 770 n.6 (7th Cir. 1985) (“[A]llowing a complaint to

be filed against an unnamed party in the first place is viewed with

disfavor.”); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

1980) (“As a general rule, the use of ‘John Doe’ to identify a

defendant is not favored.”). Moreover, the Fourth Circuit recently

rejected the position “that a court may dismiss a suit for failure

to name a John Doe defendant only if it does not appear that the

true identity of an unnamed party can be discovered through

discovery or through intervention by the court.” Attkisson v.

Holder, 925 F.3d 606, 628 (4th Cir. 2019) (internal quotation marks

omitted). Instead, the Fourth Circuit has endorsed the notion

(continued...)

-?0-

Conversely, the Complaint does not allege facts adequate to

allow Plaintiff’s official-capacity claim against Defendant Lutz

(or any Defendant affiliated with the Office of the Rockingham

County Sheriff) to survive. Under Section 1983, official-capacity

liability arises only if “execution of a 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). Relevant here, “an

official’s discretionary acts, exercised in carrying out official

duties, do not necessarily represent official policy.” Perdue v.

Harrison, No. 1:17CV403, 2017 WL 4804363, at *2 (M.D.N.C. Oct. 24,

2017) (unpublished), recommendation adopted, slip op. (M.D.N.C.

Dec. 6, 2017). “Rather, the official must have final authority

over government policy with respect to the action in question to

trigger official[-]capacity liability.” Id. (internal quotation

marks omitted). The Complaint makes no factual allegations showing

9(...continued)

that, when dealing with cases involving unnamed defendants,

district courts should remain free “to ascertain what treatment

should be given and when,” including whether to “dismiss[] the John

Doe defendants.” Id. (internal quotation marks omitted). In this

case, the Court should exercise that discretion by effecting the

dismissal of this action (other than as to the individual-capacity

claim against Defendant Lutz for excessive force) without prejudice

to Plaintiff’s right to pursue individual-capacity claims for

excessive force and/or deliberate indifference to serious medical

needs against unnamed employees of the Rockingham County Detention

Center, if Plaintiff later can identify them.

-21-

that Defendant Lutz (or any other Defendant) injured Plaintiff

pursuant to any policy or custom of the Office of the Rockingham

County Sheriff and/or possessed final authority over any such

custom or policy. (See Docket Entry 2 at 1-14.) Accordingly, the

Court should dismiss any official-capacity claim against Defendant

Lutz (and any other Defendant affiliated with the Office of the

Rockingham County Sheriff), pursuant to Section 1915(e)(2)(B)(ii),

for failure to state a claim.

Consistent with the (recommended) whittling down of this

action to a lone individual-capacity claim for excessive force

against Defendant Lutz (and possibly a related, individual-capacity

claim for excessive force against an unnamed Defendant, along with

individual-capacity claims against two other unnamed Defendants for

deliberate indifference to Plaintiff’s serious medical needs), the

Court should summarily deny the instant Motion’s request for broad-

based, preliminary injunctive relief, which (if granted)

effectively would strip the Rockingham County District Court of

jurisdiction over any civil or criminal case involving Plaintiff

and unreasonably would entrench upon the prerogatives of state

probation officials and law enforcement officials in Rockingham

County (see Docket Entry 3 at 1-2). In reaching that conclusion,

the Court first should note that “[a] preliminary injunction is an

extraordinary remedy,” Di Biase v. SPX Corp., 872 F.3d 224, 230

(4th Cir. 2017). Moreover, the Supreme Court has held that “the

-22-

basis of injunctive relief in the federal courts has always been

irreparable harm and inadequacy of legal remedies ... .” Sampson

v. Murray, 415 U.S. 61, 88 (1974) (internal bracket and quotation

marks omitted). In light of the narrow nature of the claims

proposed to proceed, “there is no [basis for a] finding by the

[C]ourt that [Plaintiff] would suffer irreparable damage or that

[]he has no adequate remedy at law in the event the [sweeping,

requested preliminary] injunction should be denied,” Alberti v.

Cruise, 383 F.2d 268, 272 (Ath Cir. 1967). To the contrary, “[t]he

possibility that adequate compensatory or other corrective relief

will be available [for the limited, surviving claim(s)] at a later

date weighs heavily against a claim of irreparable harm.” Di

Biase, 872 F.3d at 230 (internal ellipsis and quotation marks

omitted); see also id. (identifying showing of “likel[ihood of]

suffer[ing] irreparable harm in the absence of preliminary relief”

as one of four factors “[a] plaintiff seeking a preliminary

injunction must demonstrate”); Pashby v. Delia, 709 F.3d 307, 320

(4th Cir. 2013) (“[EJach preliminary injunction factor [must] be

satisfied as articulated.” (internal quotation marks omitted)).

Put another way, “Ltlo obtain prospective

relief, . . . [P]laintiff must show, inter alia, ‘a sufficient

likelihood that he . . . will again be wronged in a similar way.’”

Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012)

(emphasis omitted) (quoting City of Los Angeles v. Lyons, 461 U.S.

~23-

95, 111 (1983)). “In establishing a certainly impending future

injury, [ P]Jlaintiff cannot rely solely on past injuries; rather,

[he] must establish how he . . . will be injured prospectively and

that the injury would be prevented by the equitable relief sought.”

Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 158-59 (1990),

Lyons, 461 U.S. at 102-03, and O’Shea v. Littleton, 414 U.S. 488,

495-96 (1974)). The Complaint’s claim(s) which should survive

pertain to discrete events that occurred while Plaintiff remained

in pretrial detention (see Docket Entry 2 at 6-8), and he has not

shown that, in light of his subsequent release to house arrest, he

faces the likelihood of future injury of that same sort, absent

entry of the drastic, preliminary injunction he seeks (see Docket

Entries 3, 4). That failure mandates denial of the instant Motion.

See, e.g., PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128

(4th Cir. 2011) (“[The Fourth Circuit] will vacate an injunction if

it . . . does not carefully address only the circumstances of the

case.”).7°

‘© Abstention principles articulated in Younger v. Harris, 401

U.S. 37 (1971), further compel denial of the instant Motion. “In

Younger, the Supreme Court detailed our ‘national policy forbidding

federal courts to stay or enjoin pending state court proceedings

except under special circumstances.’” Nivens v. Gilchrist, 444

F.3d 237, 241 (4th Cir. 2006) (“Nivens II”) (quoting Younger, 401

U.S. at 41). The Younger doctrine generally requires abstention by

a federal court “if (1) there is an ongoing state judicial

proceeding brought prior to substantial progress in the federal

proceeding; that (2) implicates important, substantial, or vital

state interests; and (3) provides adequate opportunity to raise

(continued...)

-2?4-

CONCLUSION

Although Plaintiff qualifies for pauper status, the bulk of

the claims in his Complaint fail as a matter of law and/or due to

judicial and/or prosecutorial immunity. In addition, Plaintiff has

not shown entitlement to preliminary injunctive relief in regard to

his colorable, individual-capacity claim for excessive force

against Defendant Lutz (or the potentially viable individual-

capacity claims for excessive force and/or deliberate indifference

to serious medical needs which Plaintiff should retain leave to

pursue against a few unnamed Defendants).

(.,.continued)

constitutional challenges.” Id. As to the first of those

elements, the Complaint’s allegations (as detailed in the

Introduction) indicate that proceedings in state criminal cases

began before the filing of the Complaint and remain ongoing. As to

the second element, the Fourth Circuit has held that “North

Carolina has a very important, substantial, and vital interest in

preventing violations of its criminal laws.” Nivens v. Gilchrist,

319 F.3d 151, 154 (4th Cir. 2003) (“Nivens 1”). As to the third

element, the Fourth Circuit has ruled that “ordinarily a pending

state prosecution provides the accused a fair and sufficient

opportunity for vindication of federal constitutional rights.”

Gilliam v. Foster, 75 F.3d 881, 904 (4th Cir. 1996). Because the

basic elements triggering Younger abstention arise in this case,

this Court could entertain the instant Motion only if “(1) ‘there

is a showing of bad faith or harassment by state officials

responsible for the prosecution’; (2) ‘the state law to be applied

in the criminal proceeding is flagrantly and patently violative of

express constitutional prohibitions’; or (3) ‘other extraordinary

circumstances’ exist that present a threat of immediate and

irreparable injury,” Nivens II, 444 F.3d at 241 (quoting Kugler v.

Helfant, 421 U.S. 117 (1975)). Here, Plaintiff has not made a

sufficient showing to bring this case within any of the foregoing

exceptions. (See Docket Entries 2, 3, 4.)

-?5-

IT IS THEREFORE ORDERED that Plaintiff’s Application (Docket

Entry 1) is GRANTED. The Clerk shall send Plaintiff a summons form

for Defendant Lutz, which Plaintiff shall properly complete

(including with an address suitable for service) and shall return

to the Clerk by November 17, 2021. If Plaintiff timely returns a

properly completed summons form for Defendant Lutz, the Clerk shall

issue said summons and shall forward it (along with all necessary

service of process materials and a copy of this Recommendation) to

the United States Marshals Service, which shall effect service of

process. Failure by Plaintiff to comply with this Order shall

result in the dismissal of this action.

IT IS RECOMMENDED that the Court deny the instant Motion

(Docket Entry 3) and dismiss this action under Section

1915(e)(2)(B), for failure to state a claim and/or due to judicial

and/or prosecutorial immunity, except as to Plaintiff’s individual-

capacity claim against Defendant Lutz for excessive force (and

without prejudice to Plaintiff’s right to pursue individual-

capacity claims for excessive force and/or deliberate indifference

to serious medical needs against unnamed employees of the

Rockingham County Detention Center, if he later can identify them).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 3, 2021

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