“A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”
How later courts described this case
- “A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:19-cv-140-FDW
JOHN JOSEPH MORRISON, et al., )
)
Plaintiffs, )
)
vs. ) ORDER
)
MICHAEL W. MILLER, et al., )
)
Defendants. )
__________________________________________)
THIS MATTER is before the Court on initial review of Plaintiffs’ Amended Complaints,
(Doc. Nos. 7, 9, 11, 13, 15, 17), on Plaintiffs’ Motions to proceed in forma pauperis, (Doc. Nos.
2, 8, 10, 12, 14, 16, 18, 19), and on the Court’s May 5, and October 31, 2019 Orders, (Doc. Nos.
3, 23). Also pending are two Letters by Plaintiff Wilson that were docketed as Motions, (Doc. Nos.
4, 21).
I. BACKGROUND
Pro se Plaintiffs filed a Complaint pursuant to 42 U.S.C. § 1983 while they were pretrial
detainees at the Cleveland County Detention Center. On May 3, 2019, the Court issued an Order
explaining that the Complaint was too deficient to be screened on initial review and that each
Plaintiff was required to pay the filing fee or move to proceed in forma pauperis and file a signed
Amended Complaint within 21 days. (Doc. No. 3). Plaintiffs were cautioned that failure to comply
would probably result in the case’s dismissal and closure without further notice. (Doc. No. 3 at 2).
On October 31, 2019, the Court issued an Order requiring Plaintiffs Morrison, Wilson, Soria
Garcia, Banks, Curry, Sarvis, and Sanford to file Notices informing the Court of their current
addresses. (Doc. No. 23).
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Plaintiffs Byers, Moore, Soria Garcia, Douglas, Curry, and Sarvis have filed Amended
Complaints. They name as Defendants some or all of the following: Head State Prosecutor Michael
W. Miller, Assistant State Prosecutor Richard L. Shaffer Jr., Assistant State Prosecutor Elizabeth
Lari, State Prosecutor Sally Kirby Turner, and State Prosecutor William Wiseman. Plaintiffs claim
that Defendants are not following North Carolina statutes and procedures, and are depriving them
of due process, with regards to first appearances, probable cause hearings, and/or submitting
indictments to the grand jury. Plaintiffs seek release from pending charges, federal indictment and
removal of Defendants’ law licenses, expungement of prior criminal records, and a public apology.
Only Plaintiffs Morrison, (Doc. No. 30), Soria Garcia, (Doc. No. 31), and Curry (Doc. No.
32), filed Notices providing the Court with their current addresses in compliance with the October
31 Order, and the Court has been able to determine Plaintiff Sarvis and Banks’ current addresses
on the NCDPS website. See https://www.ncdps.gov/dps-services/crime-data/offender-search.
Plaintiffs Wilson and Sanford failed to comply with the October 31 Order and the Court has been
unable to determine their present addresses.
II. MOTIONS TO PROCEED IN FORMA PAUPERIS
Applications to proceed in forma pauperis have been filed by Plaintiffs Wilson, (Doc. No.
2), Morrison (Doc. No. 19), Byers (Doc. No. 14), Moore (Doc. No. 12), Soria Garcia (Doc. No.
16), Short (Doc. No. 6), Curry (Doc. No. 8), and Sarvis (Doc. No. 10). These Plaintiffs claim that
they have zero income, are unemployed, have no assets, and are unable to pay the costs of these
proceedings because they are incarcerated. The Court is satisfied that they lack they lack sufficient
funds to pay the filing fee. These Plaintiffs will therefore be granted leave to proceed in forma
pauperis. The Clerk of Court will be instructed to enter an Order Waiving Initial Partial Filing Fee
and Directing the Correctional Facility to Transmit Partial Payments with regards to Plaintiffs
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Wilson, Morrison, Byers, Moore, Soria Garcia, Short, Curry, and Sarvis.
II. LACK OF PROSECUTION
Plaintiffs have a general duty to prosecute their cases. In this regard, a pro se plaintiff must
keep the Court apprised of his current address. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir.
1988) (“A party, not the district court, bears the burden of keeping the court apprised of any
changes in his mailing address.”). Where a pro se plaintiff has failed to notify the Court of his
change of address, the action is subject to dismissal without prejudice for failure to prosecute. See
Walker v. Moak, 2008 WL 4722386 (E.D. La. Oct. 22, 2008) (dismissing without prejudice a §
1983 action for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure where
the plaintiff did not notify the court of his new address upon his release from jail). Litigants are
also obligated to comply with Court orders. See generally Fed. R. Civ. P. 41(b) (district court may
dismiss an action “[f]or failure of the plaintiff to prosecute.”). Before dismissing a case for failure
to prosecute, a district court should weigh: “(1) the plaintiff’s degree of personal responsibility;
(2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic
than dismissal.” Attkisson v. Holder, 925 F.3d 606, 625 (4th Cir. 2019) (quoting Hillig v. Comm’r
of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990)).
The Court ordered Plaintiffs to pay the filing fee or an application to proceed in forma
pauperis and an amended complaint by Order dated May 3, 2019, and to file a notice informing
the Court of their current addresses on October 31, 2019.
Plaintiffs Banks and Sanford failed to pay the filing fee or apply to proceed in forma
pauperis, and Plaintiffs Banks, Morrison, Sanford, and Wilson failed to file amended complaints
in compliance with the May 3, 2019 Order. Plaintiffs Wilson and Sanford fail to comply with the
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October 31, 2019 Order requiring Plaintiffs to apprise the Court of their present addresses and the
Court has been unable to determine their present locations.
Therefore, this action will be dismissed without prejudice and terminated as to Plaintiffs
Banks, Sanford, Morrison, and Wilson for lack of prosecution and for failing to comply with the
Court’s May 3 and October 31, 2019 Orders. Plaintiff Wilson’s pending Motions will be denied
as moot.1
II. STANDARD OF REVIEW
Because Plaintiffs are prisoners proceeding in forma pauperis, the Court must review the
Complaint to determine whether it is subject to dismissal on the grounds that it is “(i) frivolous or
malicious; (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). In its frivolity
review, a court must determine whether the Complaint raises an indisputably meritless legal theory
or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure
to state a claim “unless ‘after accepting all well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears
certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to
relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the
1 In the Letter docketed on October 11, 2019, Plaintiff Wilson asks the Court to send mail to him via certified
mail because Jail officials are not providing him with his mail. This request is denied as moot because Wilson no
longer resides at CCDC.
4
pleadings is particularly appropriate where … there is a pro se complaint raising civil rights
issues.”). However, the liberal construction requirement will not permit a district court to ignore
a clear failure to allege facts in his complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must
still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);
see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff
to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must
articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.
Id.
III. DISCUSSION
Prosecutors are absolutely immune as individuals from Section 1983 liability for acts
arising out of the exercise of their official functions. Imbler v. Pachtman, 424 U.S. 409, 418 (1976).
This immunity applies only to the extent that prosecutors serve as advocates for the State. Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993). Therefore, a prosecutor’s administrative and
investigative duties that do not relate to the preparation for the initiation of a prosecution or for
judicial proceedings are not entitled to absolute immunity. Id.
Plaintiffs’ allegations about Defendants’ adherence to the North Carolina Rules of Criminal
Procedure with regards to first appearances, indictments, and probable cause hearings are within
their prosecutorial functions as advocates and are absolutely immune from suit. Plaintiffs’ claims
against Defendants will therefore be dismissed as frivolous. See, e.g., Collazo v. Pagano, 656 F.3d
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131 (2d Cir. 2011) (claim against a prosecutor on the grounds of immunity is frivolous).
Further, Plaintiffs seek relief that is not available in a § 1983 proceeding. Federal law opens
two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus
pursuant to 28 U.S.C. § 2254, and a complaint under the Civil Rights act, § 1983. Muhammad v.
Close, 540 U.S. 749, 750 (2004). “Habeas corpus, and not § 1983, is the exclusive federal remedy
for state prisoners seeking actual release from confinement,” Griffin v. Baltimore Police Dep’t,
804 F.3d 692, 694–95 (4th Cir. 2015) (citing Preiser v. Rodriguez, 411 U.S. 475, 487–90 (1973)),
and “requests for relief turning on circumstances of confinement may be presented in a § 1983
action,” Muhammad, 540 U.S. at 750. Some cases are “hybrids,” where a prisoner seeks damages,
which are unavailable through a habeas action, but on allegations that either imply the invalidity
of an underlying conviction or of a particular ground for denying relief short of serving the
maximum term of confinement. Id. To address this situation, the Supreme Court held in Heck v.
Humphrey, 512 U.S. 477 (1994), that:
to recover damages for … harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction and sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus….
Id. at 485.
For Heck to bar a § 1983 claim, (1) “a judgment in favor of the plaintiff [must] necessarily
imply the invalidity of [a plaintiff’s] conviction or sentence,” Heck, 512 U.S. at 487, and (2), the
claim must be brought by a claimant who is either (i) currently in custody or (ii) no longer in
custody because the sentence has been served, but nevertheless could have practicably sought
habeas relief while in custody, Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015).
6
Further, federal courts must refrain from staying or enjoining pending state prosecutions
except under special circumstances. Younger v. Harris, 401 U.S. 37 (1971). Younger v. Harris,
401 U.S. 37 (1971). The Younger abstention doctrine extends to state civil proceedings that are
akin to criminal prosecutions, Huffman v. Pursue Ltd., 420 U.S. 592 (1972), or that implicate a
state’s interest in enforcing the orders and judgments of its courts, Pennzoil Co. v. Texaco Inc.,
481 U.S. 1 (1987). Proceedings fitting within the Younger doctrine include state criminal
prosecutions, civil enforcement proceedings, and civil proceedings involving certain orders that
are uniquely in furtherance of the state courts’ ability to perform their judicial functions. New
Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367-68 (1989). A
federal court may disregard Younger’s mandate to abstain from interfering with ongoing state
proceedings only where extraordinary circumstances exist that present the possibility of irreparable
harm. Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) (internal quotations omitted).
Plaintiffs ask the Court to set aside pending North Carolina criminal charges as well as
established North Carolina convictions. Plaintiffs have uniformly failed to demonstrate that
extraordinary circumstances exist that would warrant the Court’s interference in ongoing criminal
proceedings. Further, asking this Court to expunge past criminal convictions would necessarily
call those convictions into question yet Plaintiffs fail to establish that any exception to the Heck
bar applies.
For all the foregoing reasons, Plaintiffs’ § 1983 claims are barred and will be dismissed as
frivolous and for failure to state a claim upon which relief can be granted.
IV. CONCLUSION
For the reasons stated herein, this case is dismissed as to Plaintiffs Wilson and Sanford for
lack of prosecution and for failure to comply with Court Orders. The remaining Plaintiffs are
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granted leave to proceed in forma pauperis and their Amended Complaints are dismissed as
frivolous and for failure to state a claim upon which relief can be granted. All pending Motions
are denied as moot.
IT IS, THEREFORE, ORDERED that:
1. Plaintiffs Banks, Byers, Curry, Morrison, Moore, Sarvis, Short, Soria Garcia, and
Wilson’s Motions to Proceed In Forma Pauperis, (Doc. No. 2, 8, 10, 12, 14, 16, □□□□
19), ace GRANTED. The Clerk of Court is directed to enter an Order Waiving Initial
Partial Filing Fee and Directing the Correctional Facility to Transmit Partial Payments
as to these Plaintiffs.
2. This action is dismissed without prejudice for lack of prosecution and for failure to
comply with the Court’s May 3 and/or October 31, 2019 Orders as to Plaintiffs Banks,
Sanford, Morrison, and Wilson.
3. The Amended Complaints, (Doc. Nos. 7, 9, 11, 13, 15, 17°), are DISMISSED without
prejudice as frivolous and for failure to state a claim upon which relief can be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B)G)-Gi).
4. Plaintiff Wilson’s Motions (Doc. Nos. 4, 21), are DENIED as moot.
5. The Clerk is directed to close this case.
Signed: December 10, 2019
Frank D. Whitney □□
Chief United States District Judge ~“»*"
? Plaintiff Short’s Amended Application to rroceea im rorma rauperis, (UOC. NO. 13), Superseaea ms
original Application, (Doc. No. 6).
3 Plaintiff Short’s Second Amended Complaint, (Doc. No. 17), superseded his First Amended Complaint,
(Doc. No. 5).