Davis v. Scarborough

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:21-cv-00132-MR

KENNETH DAVIS, )

)

Plaintiff, )

)

vs. )

)

SHANTE SCARBOROUGH, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Complaint [Doc. 1]. Also pending is the Plaintiff’s Motion for Temporary

Restraining Order/Preliminary Injunction. [Doc. 1 at 24]. The Plaintiff is

proceeding in forma pauperis. [Doc. 6].

I. BACKGROUND

The pro se incarcerated Plaintiff filed this civil rights action pursuant to

42 U.S.C. § 1983 addressing incidents that allegedly occurred on October 2,

2020 while he was released pursuant to the Extending the Limits of

Confinement (“ELC”) program in Mecklenburg County.1 He names as

1 The Plaintiff filed the Complaint while he was incarcerated at the Lumberton Correctional

Institution, and he is presently incarcerated at the Anson Correctional Institution. The

Plaintiff’s address of record has not been updated with the Court. The Plaintiff is reminded

that it is his responsibility to keep the Court apprised of his current address at all times;

Defendants in their official and individual capacities: Shante Scarborough,2

who appears to be a North Carolina Department of Public Safety (“NCDPS”)

probation and parole officer in Mecklenburg County; and Rocky Lutz,

Plaintiff’s criminal defense attorney. The Plaintiff alleges that the Defendants

violated his Fourth and Fourteenth Amendment rights. [Doc. 1].

As injury, the Plaintiff alleges that his continued incarceration places

him at an imminent risk of harm from potential COVID-19 exposure and has

caused him serious physical and emotional injury and damages. [Id. at 11].

He seeks a temporary restraining order/preliminary injunctive relief for his

immediate restoration to ELC, compensatory and punitive damages, and any

such further relief to which he is entitled. [Id.].

II. STANDARD OF REVIEW

Because the Plaintiff is 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); see 28 U.S.C. §

the failure to do so may result in this action’s dismissal for lack of prosecution. [See Doc.

3].

2 The Plaintiff also refers to this Defendant as “Shantae Scarborough.” [Doc. 1 at 26].

1915A (requiring frivolity review for prisoners’ civil actions seeking redress

from governmental entities, officers, or employees).

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). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). 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).

III. DISCUSSION

To state a claim under § 1983, a plaintiff must allege that he was

“deprived of a right secured by the Constitution or laws of the United States,

and that the alleged deprivation was committed under color of state law.”

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

A. Individuals not named as Defendants

As a preliminary matter, the body of the Complaint refers to individuals

who are not named as Defendants in the caption as required by Rule 10(a)

of the Federal Rules of Civil Procedure. See, e.g., [Doc. 1 at 4] (referring to

“correctional personnel”). This failure renders Plaintiff’s allegations against

them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718

(W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who

were not named as defendants in the compliant but who were served). The

allegations directed at individuals not named as Defendants are therefore

dismissed without prejudice.

B. Defendant Lutz

The Plaintiff attempts to assert a claim against his appointed criminal

defense lawyer. However, Plaintiff makes absolutely no factual allegations

to support the contention that Defendant Lutz was acting under the color of

state law during the criminal representation. See generally Polk County v.

Dodson, 454 U.S. 312, 325 (1981) (“a public defender does not act under

the color of state law when performing a lawyer's traditional functions as

counsel to a defendant in a criminal proceeding.”); Fleming v. Asbill, 42 F.3d

886, 890 (4th Cir. 1994) (“Private lawyers do not act ‘under the color of state

law’ merely by making use of the state’s court system.”). As such, Defendant

Lutz is not subject to suit under § 1983 and will be dismissed from this action.

C. Defendant Scarborough

The Plaintiff names Defendant Scarborough in her official and

individual capacities.

As a preliminary matter, the Plaintiff asserts claims for damages and

injunctive relief against Defendant Scarborough in her official capacity. “[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. Dep’t of

State Police, 491 U.S. 58, 71 (1989). Because a state is not a “person” under

§ 1983, state officials acting in their official capacities cannot be sued for

damages thereunder. Allen v. Cooper, No. 1:19-cv-794, 2019 WL 6255220,

at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, the Eleventh Amendment bars

suits for monetary damages against the State of North Carolina and its

various agencies. See Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir.

2003). The Plaintiff’s claims against Defendant Scarborough, an NCDPS

probation officer, for damages are barred by the Eleventh Amendment. The

Plaintiff’s claims for injunctive relief will be dismissed because the Plaintiff

has failed to plausibly allege that Defendant Scarborough, as a probation

officer, has any authority to authorize his release to ELC. See, e.g., Gilmore

v. Bostic, 659 F.Supp.2d 755 (S.D. W. Va. Sept. 22, 2009) (finding that the

prisoner could not seek prospective injunctive relief against a probation

officer, as the officer lacked any authority to provide the prisoner with any

relief relating to his classification, parole, or any other conditions of his

incarceration). The claims against Defendant Scarborough in her official

capacity for damages and injunctive relief have failed to pass initial review

and are therefore dismissed.

First, the Plaintiff asserts a claim for false arrest/false imprisonment

against Defendant Scarborough in her individual capacity for arresting him

without probable cause or a valid warrant. [Doc. 1 at 4]. Section 1983

provides a federal cause of action for Fourth Amendment false arrest.

Wallace v. Kato, 549 U.S. 384 (2007). “False arrest and false imprisonment

overlap; the former is a species of the latter.” Wallace, 549 U.S. at 387-88.

To state such a claim, a plaintiff must allege that the defendant caused a

seizure of the plaintiff pursuant to legal process, unsupported by probable

cause, and the criminal proceedings terminated in plaintiffs’ favor. Evans v.

Chalmers, 703 F.3d 636, 647 (4th Cir. 2012).

Taking the allegations as true for the purposes of initial review, and

construing all inferences in Plaintiff’s favor, the Court finds that the Plaintiff

has stated a Fourth Amendment claim against Defendant Scarborough for

false arrest/false imprisonment that is sufficient to survive initial review.

Second, the Plaintiff appears to assert a claim against Defendant

Scarborough in her individual capacity for revoking his ELC without due

process. In order to establish a due process violation, “a plaintiff must first

show that he has a constitutionally protected ‘liberty’ or ‘property’ interest,

and that he has been ‘deprived’ of that protected interest by some form of

‘state action.’” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th

Cir. 1988) (citations omitted). If the plaintiff makes such showing, the court

considers what process was required and whether any provided was

adequate in the particular factual context. Id.

Assuming arguendo that the Plaintiff had a liberty interest in remaining

on ELC, he has minimally stated a plausible § 1983 claim against Defendant

Scarborough for removing him from ELC without due process. This claim

will be allowed to pass initial review at this time.

D. Preliminary Injunctive Relief

Finally, the Plaintiff seeks a preliminary injunction requiring his

immediate restoration to ELC. [Doc. 1 at 24].

Preliminary injunctive relief is an extraordinary remedy afforded before

trial at the discretion of the district court. In re Microsoft Corp. Antitrust Litig.,

333 F.3d 517, 524-26 (4th Cir. 2003). It is an extraordinary remedy never

awarded as of right. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

24 (2008). In each case, courts “must balance the competing claims of injury

and must consider the effect on each party of the granting or withholding of

the requested relief.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,

542 (1987). “[C]ourts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Winter,

555 U.S. at 24. To obtain a preliminary injunction, the plaintiff must establish

(1) that he is likely to succeed on the merits; (2) that he is likely to suffer

irreparable harm in the absence of preliminary relief; (3) that the balance of

equities tips in his favor; and (4) that an injunction is in the public interest. Id.

at 20.

Here, the Plaintiff has not established any of the elements that would

warrant preliminary injunctive relief. The Court will, therefore, deny the

Plaintiff’s request that he be immediately restored to the ELC program.

IV. CONCLUSION

In sum, the Complaint has survived initial review against Defendant

Scarborough in her individual capacity on claims of false arrest/ false

imprisonment, and violating due process. The remaining claims are

dismissed. The Plaintiff’s Motion for Temporary Restraining Order/

Preliminary Injunction is denied.

In light of the Court’s determination that this case passes initial review

in accordance with this Order, the Court will order the Clerk of Court to

commence the procedure for waiver of service as set forth in Local Civil Rule

4.3 for Defendant Scarborough, who is alleged to be a current or former

employee of NCDPS.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) The Plaintiff's claims for false arrest/false imprisonment and a due

process violation against Defendant Scarborough, in her individual

Capacity, survive initial review in accordance with this Order.

(2) The Plaintiffs remaining claims are DISMISSED.

(3) The Plaintiffs Motion for Temporary Restraining Order/ Preliminary

Injunction [Doc. 1 at 24] is DENIED.

(4)The Clerk shall commence the procedure for waiver of service as

set forth in Local Civil Rule 4.3 for Defendant Scarborough, who is

alleged to be a current or former employee of NCDPS.

(5)The Clerk of Court is respectfully instructed to mail the Plaintiff an

Opt-In/Opt-Out form pursuant to Standing Order 3:19-mc-00060-

FDW.

IT IS SO ORDERED.

Signed: March 17, 2022

Sos

Chief United States District Judge AS