LIVENGOOD v. BROWN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

THOMAS LIVENGOOD, )

)

Plaintiff, )

)

v. ) 1:22CV171

)

NORTH CAROLINA DEPARTMENT )

OF PUBLIC SAFETY and )

KYLE BROWN, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendants’ Motion to

Dismiss (Docket Entry 7; see also Docket Entry 8 (Memorandum in

Support)). For the reasons that follow, the Court should grant the

Motion to Dismiss.

I. BACKGROUND

Plaintiff, a prisoner at “Avery/Mitchell C[orrectional]

I[nstitution]” (Docket Entry 4 at 4), as a result of his 2009

“convict[ion for a] First Degree Sex Offense with a Child (Docket

Entry 8 at 2), initially filed the Complaint in the Rowan County,

North Carolina Superior Court on December 8, 2021 (see Docket Entry

4 at 1 (case caption listing “Rowan County . . . Superior Court”)).

Defendant Brown thereafter “remove[d] th[e] civil action from [the

state court] . . . to th[is Court].” (Docket Entry 1 at 1.) The

Complaint (docketed in this Court at Docket Entry 4) contends

Defendants violated Plaintiff’s due process rights under both the

United States Constitution and the North Carolina Constitution

because Plaintiff “was removed from his canteen job . . . because

of [a] red flag Defendant [] Brown placed on him.” (Docket Entry

4 at 4.) Specifically, the Complaint alleges that “Defendant []

Brown tagged [Plaintiff’s] prison file [by noting Plaintiff] as

being a sexual violent predator.” (Id.) The Complaint disputes

this notation on Plaintiff’s file, stating that “nowhere in the

Judgement [sic] and commitment papers is there any order by the

Sentencing Judge or any other Judge listing Plaintiff [] as a

sexual predator.” (Id. at 5.) In support of his contention,

Plaintiff attached to the Complaint two pages of his Judgment,

neither of which include a finding by the state court labeling

Plaintiff as a sexually violent predator. (See generally Docket

Entry 1-2 at 11-12.)

The Complaint further states that, after learning of this

classification, Plaintiff “[f]iled [a g]rievance” (Docket Entry 4

at 4) with the prison and “wrote [Defendant ] Brown . . . [and]

Commissioner [of Prisons ] Ishee” (id.), seeking further

clarification regarding the disputed notation (see id.; see also

Docket Entry 1-2 at 15-16, 20-22, 24-25 (internal grievance form

and letters to Defendant Brown and Commissioner Ishee)). The

prison “Grievance Examiner” found “no violation of applicable

Prisons policy nor . . . evidence of misconduct . . . .” (Id. at

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19.) A prison official responded to Plaintiff’s letter to

Defendant Brown stating that, “after reviewing [Plaintiff’s]

Judgement [sic] and Commitment papers[, Plaintiff was] identified

by the courts as a sexual predator.” (Id. at 23.) Plaintiff

allegedly received no response from the office of Commissioner

Ishee. (Docket Entry 4 at 4.) Plaintiff thereafter filed this

action, demanding damages and injunctive relief in the form of the

“North Carolina Department of Public Safety[ ] vacat[ing] the red

flag . . . listed in his Prison Record(s).” (Id. at 7.)

In the Memorandum in Support of the Motion to Dismiss

(“Memorandum”), Defendant Brown argues that he played no role in

“the determination that Plaintiff was a sexually violent predator.”

(Docket Entry 8 at 5.) As a result, the Memorandum contends that

the Complaint fails to state a claim against Defendant Brown in his

individual capacity. (Id.) To support the claim of Defendant

Brown’s non-involvement, the Memorandum attaches as an exhibit a

third page to Plaintiff’s state court Judgment, entitled “Judicial

Findings and Order for Sex Offenders.” (Docket Entry 8-1 at 1

(bearing identical date, case number, and judge’s name and

signature as Plaintiff’s exhibits) (all-caps typeset omitted).)

That document includes a finding that Plaintiff “has been

classified as a sexually violent predator.” (Id.) Plaintiff filed

no response to the Motion to Dismiss. (See Docket Entries dated

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Apr. 4, 2022, to present; see also Docket Entry 9 (notice to

Plaintiff of his right to respond to Motion to Dismiss) .)

II. DISCUSSION

A. Rule 12(b) (6) Standards

“A motion to dismiss pursuant to Rule 12(b)(6) tests the

sufficiency of the claims pled in a complaint.” ACA Fin. Guar.

Corp. v. City of Buena Vista, Va., 917 F.3d 206, 211 (4th Cir.

2019). “To sufficiently plead a claim, the Federal Rules of Civil

Procedure require that a pleading . .. contain .. .a short and

plain statement of the claim showing that the pleader is entitled

to relief.” Id. (citing Fed. R. Civ. P. 8(a) (internal brackets

and quotation marks omitted)). Although “[t]his pleading standard

does not require detailed factual allegations,” id., a complaint

must “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) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).' The Court thus need not

1 Although the Supreme Court has reiterated that “[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, 551

U.S. at 94 (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)

(applying Twombly standard in dismissing pro se complaint); accord

Atherton v. District of Columbia Off. 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.’

accept as true any “legal conclusions,” id., or “bare assertions

devoid of further factual enhancement,” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

As a general matter, in ruling on a Rule 12(b) (6) motion, “a

court evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.

2011). The Court may also consider documents “attached to the

motion to dismiss, so long as they are integral to the complaint

and authentic.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176,

180 (4th Cir. 2009). Typically, a “court cannot go beyond these

documents” without “convert[ing] the motion into one for summary

judgment.” B.1. du Pont, 637 F.3d at 448. Even so, “{[iljn

reviewing a Rule 12(b) (6) [motion, the Court] may properly take

judicial notice of matters of public record.” Philips, 572 F.3d at

180; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007) (observing that “sources courts ordinarily

examine when ruling on Rule 12(b)(6) motions to dismiss” include

“the complaint in its entirety, as well as . . . documents

incorporated into the complaint by reference, and matters of which

a court may take judicial notice”). ™“[T]he most frequent use of

But even a pro se complainant must plead ‘factual matter’ that

permits the court to infer ‘more than the mere possibility of

misconduct.’” (quoting Erickson, 551 U.S. at 94, and Igbal, 556

U.S. at 697, respectively)).

judicial notice of ascertainable facts is in noticing the content

of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236,

1239 (4th Cir. 1989) (internal quotation marks omitted).

B. Due Process

Section 1983 makes actionable alleged deprivations of

constitutional rights. See 42 U.S.C. § 1983. To state a viable

Section 1983 claim, Plaintiff must show that Defendants “deprived

[him] 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). The Fourteenth Amendment prohibits the States

from “depriv[ing] any person of life, liberty, or property without

due process of law.” U.S. Const. amend. XIV. “The touchstone of

due process is protection of the individual against arbitrary

action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94

S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974). “Due process contains

both substantive and procedural components.” Snider Int’l Corp. v.

Town of Forest Heights, Md., 739 F.3d 140, 145 (4th Cir. 2014).

“Procedural due process prevents mistaken or unjust deprivation,

while substantive due process prohibits certain actions regardless

of procedural fairness.” Id. “[A] plaintiff asserting a []

substantive due process claim must allege both the deprivation of

his life, liberty or property interest by a state actor, and that

the deprivation of this interest was ‘arbitrary in the

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constitutional sense.’” Callahan v. North Carolina Dep’t of Pub.

Safety, 18 F.4th 142, 145 (4th Cir. 2021) (quoting Collins v. City

of Harker Heights, Tex., 503 U.S. 115, 129 (1992)).

In bringing a due process claim against an individual

defendant, the plaintiff must present “sufficient factual matter,”

Igbal, 556 U.S. at 678, to show that the defendant personally

played a role in the alleged deprivation of constitutional rights,

see, e.g., id. at 676 (“[A] plaintiff must plead that each

Government-official defendant, through the official’s own

individual actions, has violated the Constitution.”); Cook v.

James, 100 F. App’x 178, 180 (4th Cir. 2004) (“[The p]Jlaintiff]

must establish that [the d]lefendant [] was personally involved in

the deprivation of his constitutional rights in order to sustain a

claim under § 1983.”); Wright v. Collins, 766 F.2d 841, 850 (4th

Cir. 1985) (“[I]t must be affirmatively shown that the official

charged acted personally in the deprivation of the plaintiff’s

rights.” (internal quotation marks omitted)); Gerald v. Greene,

Civ. Action No. 17-3737, 2019 WL 430854, at *3 (D. Md. Feb. 1,

2019) (“The official’s own individual actions must have violated

the Constitution.” (internal quotation marks omitted)).

C. The Complaint Fails to State a Federal

Constitutional Claim against Defendant Brown

Plaintiff here has failed to state a due process claim against

Defendant Brown because the record reflects that Defendant Brown

did not make the classification of Plaintiff as a sexually violent

predator. Plaintiff’s conclusory allegations that “nowhere in the

Judgement [sic] and commitment papers is there any order by the

Sentencing Judge or any other Judge listing Plaintiff [] as a

sexual predator” (Docket Entry 4 at 5), and that “[Defendant] Brown

issued the red flag aka ‘sexual violent predator’ on his own power

and authority” (id. at 6), cannot stand in light of the attachment

to Defendant Brown’s Memorandum, wherein the state court judge

overseeing Plaintiff’s trial explicitly made that classification

(see Docket Entry 8-1). Although a court, in ruling on a Rule

12(b)(6) motion, generally only looks to alleged facts in “the

complaint . . . [and] documents attached or incorporated into the

complaint,” E.I. du Pont de Nemours, 637 F.3d at 448, it may also

consider documents “attached to the motion to dismiss, so long as

they are integral to the complaint and authentic,” Philips, 572

F.3d at 180. Defendant Brown’s exhibit here contains “Judicial

Findings” (Docket Entry 8-1) from Plaintiff’s state court

conviction. One of those findings, that Plaintiff “has been

classified as a sexually violent predator” (id.), goes directly to

Plaintiff’s claim in this action.

Moreover, Plaintiff has not challenged the authenticity of the

exhibit, which bears the same date, case number, and judge’s name

and signature as Plaintiff’s exhibits. (Compare Docket Entry 1-2

at 11-12, with Docket Entry 8-1 at 1.) As a result, the Court may

consider the exhibit to Defendant Brown’s memorandum because “[it

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is] integral to the [C]lomplaint and authentic.” E.I. du Pont de

Nemours, 637 F.3d at 448. That a court may, “[i]n reviewing a Rule

12(b) (6) [motion,] properly take judicial notice of matters of

public record,” Philips, 572 F.3d at 180, such as “the content of

court records,” Colonial Penn, 887 F.2d at 1239, further supports

consideration of the exhibit to the Memorandum in this case.

Such consideration requires dismissal of Plaintiff’s claim

against Defendant Brown. Said exhibit, signed and dated June 11,

2009, includes a finding by the state court that Plaintiff “has

been classified as a sexually violent predator.” (Docket Entry 8-

1.) As the Complaint concedes, Plaintiff’s prison file did not

reflect this classification until “after [he] was convicted and

sentenced.” (Docket Entry 4 at 4.) Thus, accepting as true the

Complaint’s assertion that in August 2020 “Plaintiff [] was removed

from his canteen job . . . because of the red flag” (id.), his

removal did not result from any action of Defendant Brown, but

rather a judicial finding. (See Docket Entry 8-1.) Consequently,

the Complaint lacks “sufficient factual matter,” Igbal, 556 U.S. at

678, to show that Defendant Brown personally played a role in the

alleged deprivation of Plaintiff’s constitutional rights. see,

e.g., id. at 676; Cook, 100 F. App’x at 180; Wright, 766 F.2d at

850; Gerald, 2019 WL 430854, at *3. As a result, the Complaint

fails to state a federal constitutional claim against Defendant

Brown. See Fed. R. Civ. P. 12(b) (6).

D. The Complaint Also Fails to State A Federal

Constitutional Claim against Defendant NCDPS

Although Defendant NCDPS did not bring its own motion to

dismiss, the Court has an independent obligation to review the

Complaint’s sufficiency as to each Defendant. See 28 U.S.C. §

1915A(a)&(b) (“The court shall review . . . [the] complaint in a

civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity . . . [and]

shall identify cognizable claims or dismiss the complaint . . . if

the complaint . . . fails to state a claim upon which relief may be

granted”). As noted above, Section 1983 provides the cause of

action to assert the constitutional violation Plaintiff alleges

here. But the Complaint fails to state a claim against Defendant

NCDPS because Defendant NCDPS, as a state agency, constitutes “an

arm of the state,” Hanifee v. Board of Educ. of Kent Cnty., Civ.

Action No. 09-2381, 2010 WL 723772, at *5 (D. Md. Feb. 24, 2010),

and Section 1983 “does not provide a federal forum for litigants

who seek a remedy against a State for alleged deprivations of civil

liberties,” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66

(1989). Under Section 1983, “neither the state nor a state agency

is deemed a ‘person.’” Savage v. North Carolina Dep’t of

Correction, No. 5:06-CV-171, 2007 WL 2904182, at *5 (E.D.N.C. Sept.

29, 2007); see also Cochran v. West Virginia Reg’l Jail & Corr.

Facility Auth., Civ. Action No. 3:13-10176, 2014 WL 2973486, at *3

(S.D.W. Va. July 2, 2014) (observing that “a ‘person’ suable for

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damages under § 1983 does not include a state agency”). As a

result, Plaintiff’s federal constitutional claim against Defendant

NCDPS cannot proceed, and the Court should dismiss it. See 28

U.S.C. § 1915A(a)&(b).2

D. Plaintiff’s State Constitutional Claim

Finally, the Complaint also alleges a violation of the North

Carolina Constitution. (See Docket Entry 4 at 5.) As discussed

above, Plaintiff’s federal constitutional claim cannot proceed

against either Defendant. As a result, the Court should dismiss

without prejudice Plaintiff’s state constitutional claim. See 28

U.S.C. § 1367(c)(3) (permitting district courts to decline to

exercise supplemental jurisdiction over state law claims when the

court “has dismissed all claims over which it has original

jurisdiction”).

III. CONCLUSION

Plaintiff has failed to state a due process claim against

Defendants upon which relief may be granted.

2 Even if Plaintiff could bring a Section 1983 claim against

Defendant NCDPS (and he cannot), the factual issues undermining

Plaintiff’s claim against Defendant Brown would similarly undermine

the claim against Defendant NCDPS.

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IT IS THEREFORE RECOMMENDED that the Motion to Dismiss (Docket

Entry 7) be granted, the Complaint be dismissed as to Defendant

NCDPS, and Plaintiff’s state claim be dismissed without prejudice

pursuant to 28 U.S.C. § 1367(c)(3).

This 17th day of November, 2022.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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