# GRIZZEL v. WILKES COUNTY, NORTH CAROLINA

> District Court, M.D. North Carolina · September 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10254449

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** September 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254449

## How later opinions describe it (automated extraction)

- holding that judicial immunity applies even when judge’s “exercise of authority [was] flawed by the commission of grave procedural errors” and that “judicial act” encompasses any “function normally performed by a judge”
- discussing sovereign immunity of states and state officials under the Eleventh Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NYAMBER GRIZZEL, )
)
Plaintiff, )
)
v. ) 1:23CV445
)
WILKES COUNTY, NORTH CAROLINA, )
et al., )
)
Defendants. )
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the undersigned United States
Magistrate Judge on Plaintiff’s Application to Proceed in District
Court Without Prepaying Fees or Costs (Docket Entry 1) (the
“Application”), filed in conjunction with her pro se Complaint
(Docket Entry 2). For the reasons that follow, the undersigned
will grant the Application for the limited purpose of recommending
dismissal of this action.
RELEVANT STANDARDS
“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
[her] poverty makes it impossible for [her] 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.
Federal Med. Ctr. 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 that . . . 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. (internal quotation marks omitted).
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
2
conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”

Additionally, under 28 U.S.C. § 1915(e) (2) (B), constitutional
and common-law doctrines that immunize government entities and/or
personnel from liability for damages also constitute grounds for
dismissal. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89 (1984) (discussing sovereign immunity of states and
state officials under the Eleventh Amendment); Pierson v. Ray, 386
U.S. 547 (1967) (describing interrelationship of 42 U.S.C. § 1983
and common-law immunity doctrines, including judicial 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

' 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
quotation marks and citation 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 Off. of the
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 Igbal, 556 U.S. at 679)).

defenses, available only to public officials, preclude or severely
limit the damage remedy” (internal quotation marks omitted)).
BACKGROUND
Asserting claims under “42 U.S.C. § 1983 & 1985”2 for alleged
violations of her rights (Docket Entry 2 at 4),3 Plaintiff
initiated this action against five defendants: (1) Wilkes County,
(2) Deputy C. Greene (“Deputy Greene”), (3) Rebecca Jordan
(“Defendant Jordan”), (4) Judge Donna Shumate (“Judge Shumate”),
and (5) the State Bureau of Investigation (individually, the “SBI,”
and collectively, the “Defendants”) (id. at 1-3). According to
Plaintiff’s Complaint:
In 2021, officers with the Wilkes County Sheriff’s Office
arrested Plaintiff on assault charges. (Id. at 7.) Although
Plaintiff had been “assaulted by [her] ex,” C.R.S., the police
wrongfully arrested and charged her in this incident, causing her
to lose custody of her son. (Id.) Additionally, “[t]he Wilkes

2 Section 1985 provides, as relevant here, “[i]f two or more
persons in any State or Territory conspire . . ., for the purpose
of depriving, . . . any person or class of persons of equal
protection of the laws, or of equal privileges and immunities under
the laws; . . . the party so injured or deprived may have an action
for the recovery of damages occasioned by such injury or
deprivation, against any one or more of the conspirators.” 42
U.S.C. § 1985(3). To the extent the Complaint raises separate
Section 1985 claims, any claims that Defendants conspired against
Plaintiff fail for the same reasons as the Section 1983 claims
against Defendants.
3 Docket Entry page citations utilize the CM/ECF footer’s
pagination.
4
County Child Support enforcement agency lied and said [she] had to
pay” child support. (Id. at 8-9.) “[Defendant] Jordan was the
caseworker in Wilkes County,” and there “[wa]s a conflict of
interest between [Defendant Jordan] and [Plaintiff’s] exe[’]s
mom.” (Id. at 9.) The girlfriend of Plaintiff’s ex (C.R.S.) knows
Judge Shumate, “the one who signed the order.” (Id.) Further,
Plaintiff “think[s]” that another ex-boyfriend, N.A., “works for
the SBI and . . . hacked all [of her] devices and [her] wifi
network.” (Id.) Finally, the Complaint requests compensation of
“20 billion” dollars, “dismiss[al] and expunge[ment]” of
Plaintiff’s assault charge, and to “quit being harassed [by] the
court.” (Id. at 6.)
DISCUSSION
As an initial matter, to state a claim for relief under
Section 1983, Plaintiff must assert “that [she 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); see also Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir.
2016) (“Section 1983 is not itself a source of substantive rights,
but rather provides a method for vindicating federal constitutional
and statutory rights.”).

5
I. Wilkes County
To begin, the Complaint names Wilkes County as a defendant
(Docket Entry 2 at 2), but contains no allegations against Wilkes
County specifically (see id. at 1-11). Instead, the Complaint
contains various allegations against individuals and entities in
Wilkes County. (See id.) Although “Congress did intend
municipalities and other local government units to be included
among those persons to whom [Section] 1983 applies,” Monell v.
Department of Soc. Servs., 436 U.S. 658, 690 (1978) (emphasis
omitted), to state a viable Section 1983 claim against Wilkes
County (either directly or via an official capacity claim against
it/employee(s)), “it must be shown that the actions of [persons
employed by Wilkes County] were unconstitutional and were taken
pursuant to a custom or policy of [Wilkes County],” Giancola v.
State of W. Va. Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir.
1987) (observing that official capacity suits actually target
employing entity) (citing Monell, 436 U.S. at 690-92). See Board
of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)
(“[The Supreme Court] ha[s] required a plaintiff seeking to impose
liability on a [local governmental body] under § 1983 to identify
a [local governmental] ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.”). Importantly, “‘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).
Therefore, Section 1983 liability can only attach to Wilkes
County if “execution of [its] 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). Accordingly, Plaintiff must show that a
“constitutional injury [wa]s proximately caused by a written policy
or ordinance, or by a widespread practice that is ‘so permanent and
well settled as to constitute a “custom or usage” with the force of
law./’” McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 954 (M.D.N.C.
2011) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127
(1988)), rev’d in part on other grounds, 703 F.3d 636 (4th Cir.
2012). However, the Complaint does not allege that any policy or
custom of Wilkes County or its officials caused any of the
challenged events or otherwise harmed Plaintiff. (See Docket Entry
2 at 6-10.) Thus, Plaintiff fails to state a viable claim against
Wilkes County, necessitating dismissal of any such claims. See 28
U.S.C. § 1915(e) (2) (B) (11).
II. Deputy Greene
Beyond naming Deputy Greene as a defendant (Docket Entry 2 at
2), the Complaint does not mention Deputy Greene (see id. at 1-11).
Due to the lack of factual allegations involving Deputy Green, the

Complaint fails to establish a Section 1983 claim against Deputy
Greene. 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
Deputy Greene engaged in any violation of Plaintiff’s 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.”).*
Therefore, the Court should dismiss any claims against Deputy
Greene under 28 U.S.C. § 1915(e) (2) (B) (11).
III. Defendant Jordan
Next, as to Defendant Jordan, even liberally construed, the
Complaint’s conclusory assertion that Plaintiff “think[s] ...a
conflict of interest [exists] between [Defendant Jordan and
Plaintiff’s] exe[’]s mom” (Docket Entry 2 at 9) does not plausibly
establish that Defendant Jordan violated Plaintiff’s rights. The
Complaint does not further develop factual allegations against

“ To the extent the Complaint rests its theory of liability
against Deputy Greene on his position with the Wilkes County
Sheriff’s Office, such respondeat superior theories do not exist
under 1983. See id. at o77. “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) (citing, inter alia, Iqbal, 556 U.S. at
676, and Monell, 436 U.S. at 691-92). The Complaint makes no such
assertions. (Docket Entry 2 at 6-10.)

Defendant Jordan, including any details regarding the asserted
“conflict of interest” or how it allegedly adversely impacted
Plaintiff. (Id. (stating in Complaint’s sole reference to
Defendant Jordan: “[Defendant] Jordan was the caseworker in Wilkes
County and I think their [sic] is a conflict of interest between
her [and] my exe[’]s mom (R[.] S[.])7”).) “As such, Plaintiff’s
allegations [against Defendant Jordan] do not rise above the level
of mere speculation.” Studivent v. Lankford, No. 1:10cv144, 2010
WL 1568451, at *2 (M.D.N.C. Apr. 16, 2010), recommendation adopted,
2012 WL 1205722 (M.D.N.C. Apr. 11, 2012). Therefore, the Court
should dismiss all claims against Defendant Jordan for failure to
state a claim. See 28 U.S.C. § 1915(e) (2) (B) (11).
IV. Judge Shumate
As for Plaintiff’s claim against Judge Shumate (see Docket
Entry 2 at 2), state and federal judges enjoy judicial immunity,
namely, “an immunity from suit, not just from ultimate assessment
of damages,” Mireles v. Waco, 502 U.S. 9, 11 (1991). “Judges
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 (4th Cir. 1992). See Mireles, 502 U.S. at
11.

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. A plaintiff can only overcome judicial
immunity when the allegations concern acts of a nonjudicial nature
or if the judge acted “in the complete absence of all
jurisdiction.” Darling v. Falls, 236 F. Supp. 3d 914, 927
(M.D.N.C. 2017) (citing Mireles, 502 U.S. at 11); see also Stump v.
Sparkman, 435 U.S. 349, 359-62 (1978) (holding that judicial
immunity applies even when judge’s “exercise of authority [was]
flawed by the commission of grave procedural errors” and that
“judicial act” encompasses any “function normally performed by a
judge”).
Plaintiff alleges that Judge Shumate violated her rights by
“sign[ing] the order.” (Docket Entry 2 at 9.)° Signing an order
constitutes a routine judicial action. See King, 973 F.2d at 357.
Nowhere does Plaintiff allege that Judge Shumate took any

° The Complaint does not specify the contents of the order at
issue. (See id. at 6-10.) The allegations regarding Judge Shumate
appear amid discussion of child custody and child support matters.
(See id.) This discussion includes references to multiple orders.
(See, e.g., id. at 8-9 (stating “they tricked me into signing an
order that said I was the father and I’m not sure if it is a
joke”), 9 (referencing “the wrong custody order”).} Regardless of
the context and/or content of the relevant order, Judge Shumate
enjoys judicial immunity because signing an order qualifies as a
routine judicial function. See King, 973 F.2d at 357.
10

nonjudicial actions or that she acted outside her jurisdiction.
(Docket Entry 2 at 6-11.) Accordingly, Judge Shumate enjoys
absolute judicial immunity from Plaintiff’s claims. Therefore, the
Court should dismiss Plaintiff’s claims against Judge Shumate. See
28 U.S.C. § 1915 (e) (2) (B) (4131).
V. The SBI
Finally, Plaintiff asserts claims against the SBI. (Docket
Entry 2 at 3.) The SBI constitutes an arm of the State of North
Carolina. See Green v. North Carolina State Bureau □□
Investigation Crime Lab, No. 3:llcv69, 2011 WL 4074613, at *2
(W.D.N.C. Sept. 13, 2011) (“[T]he SBI is not a ‘person’ under
[Section] 1983. . . . For Eleventh Amendment purposes, the SBI is
considered an arm of the State of North Carolina.”) (citing Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989)). Asa
state agency, the SBI does not qualify “als a] ‘person[]’ under
§ 1983.” Will, 491 U.S. at 71. For that reason, Plaintiff fails
to state a claim against the SBI. Even setting aside this
deficiency, the Eleventh Amendment would limit any relief against
the SBI to a prospective injunction to remedy an ongoing violation
of federal law. See McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th
Cir. 2010) (discussing “Eleventh Amendment immunity”). And
Plaintiff does not request any injunctive relief against the SBI.
(See Docket Entry 2 at 6.) Therefore, the Court should dismiss all
claims against the SBI under 28 U.S.C. § 1915(e) (2) (B) (ii) & (i411).

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CONCLUSION
This action fails to state a claim and/or runs afoul of
immunity doctrines.
IT IS THEREFORE ORDERED that Plaintiff’s Application (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) for failing to state a claim and seeking
relief from immune defendants.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 22, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254449. Public record. Not legal advice.