Pike v. Catawba County DSS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:22-cv-00041-MR

NATHAN PIKE, )

)

Plaintiff, )

)

vs. )

)

CATAWBA COUNTY DSS, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the Complaint

[Doc. 1]. The Plaintiff has also filed a Letter [Doc. 7] that is construed as a

Motion to Appoint Counsel. The Plaintiff is proceeding in forma pauperis.

[Doc. 8].

I. BACKGROUND

The pro se Plaintiff, who is serving a sentence of between 20 and 29

years for first-degree statutory rape,1 filed this action pursuant to 42 U.S.C.

1See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=06

41974&searchLastName=pike&searchFirstName=nathan&searchDOBRange=0&listurl=

pagelistoffendersearchresults&listpage=1 (last accessed July 1, 2022); see Fed. R. Evid.

201.

§ 19832 addressing his “rights to freedom.”3 [Doc. 1 at 3]. The Plaintiff

names as the sole Defendant “Catawba County DSS social workers.” [Id. at

2]. He claims that his daughter’s uncle raped her and blamed the Plaintiff for

the offense, and that he was “discriminated by Caldwell County as well as

harassed and blackmail[ed] by the law officers and the DSS.” [Id. at 5]. As

injury, he refers to his daughter’s rape. [Id.]. For relief, he “want[s] them to

let [him] go home and lock up the guilty ones.” [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. §

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

from governmental entities, officers, or employees).

2 The Plaintiff also purports to sue under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), but he has named no federal actors as

defendants. Therefore, this action is construed as an action under § 1983.

3 The Plaintiff filed a duplicative action, Case No. 5:22-cv-00042-MR, which has been

dismissed.

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).

As a preliminary matter, the body of the Complaint contains allegations

against Vernon W. Pike; Barbar [sic] S. Pike; Billy M. Pike; Charlie M. Pike,

and Wanda A. Pike [Doc. 1 at 12]; however, these individuals are not named

as defendants in the caption as required by Rule 10(a) of the Federal Rules

of Civil Procedure. Fed. R. Civ. P. 10(a) (“The title of the complaint must

name all the parties”); Myles v. United States, 416 F.3d 551 (7th Cir. 2005)

(“to make someone a party the plaintiff must specify him in the caption and

arrange for service of process.”); Perez v. Humphries, No. 3:18-cv-107-

GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A plaintiff’s failure

to name a defendant in the caption of a Complaint renders any action against

the purported defendant a legal nullity”). The allegations directed at

individuals not named as Defendants are therefore dismissed without

prejudice.

Even if the Plaintiff had named these individuals as defendants, the

claims against them would be dismissed because the Plaintiff has failed to

state a cognizable § 1983 claim against them. These individuals appear to

be private citizens and not state actors, as required to state a claim under §

1983. See Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982) (holding

that to satisfy the state action requirement of § 1983, a plaintiff must

demonstrate that the conduct at issue is “fairly attributable to the State.”);

DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999) (holding that if a

defendant is not a state actor, there must be a “sufficiently close relationship

with state actors such that a court would conclude that the non-state actor is

engaged in the state’s actions.”). Further, the Plaintiff’s vague, conclusory,

and nonsensical allegations against them fail to satisfy the most basic

pleading requirements. See Fed. R. Civ. P. 8(a); [Doc. 1 at 12] (“Vernon W.

Pike touching in wrong place;” “Barbar S. Pike watching letting happen;”

“Billy M. Pike smaking [sic] and beating;” “Charlie M. Pike rape;” and “Wanda

A. Pike failure to report abuse of her daughter…”).

The Plaintiff has also failed to state a § 1983 claim against the sole

named Defendants, “Catawba County DSS social workers.” [Doc. 1 at 2].

John Doe suits are permissible only against “real, but unidentified,

defendants.” Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir.1982). The

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

courts; it is appropriate only when the identity of the alleged defendant is not

known at the time the complaint is filed and the plaintiff is likely to be able to

identify the defendant after further discovery. See Roper v. Grayson, 81 F.3d

124, 126 (10th Cir.1996); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.

1980). “[I]f it does not appear that the true identity of an unnamed party can

be discovered through discovery or through intervention by the court, the

court could dismiss the action without prejudice.” Schiff, 691 F.2d at 198

(footnote omitted). Here, the Plaintiff has provided no information from which

the Court can conclude that he would likely be able to identify the social

worker Defendant(s) through discovery.

Further, the Plaintiff has not adequately explained the nature of his

claim. He vaguely refers to discrimination and blackmail, but he has not set

forth any supporting facts from which the Court can conclude that any

plausibly constitutional violation occurred. See Fed. R. Civ. P. 8(a)(2)

(stating that a short and plain statement of the claim is required); Simpson v.

Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported

by specific allegations of material fact are not sufficient); Dickson v. Microsoft

Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader must allege facts,

directly or indirectly, that support each element of the claim).

Moreover, the relief that the Plaintiff seeks—recompense for the

injuries to his daughter—is not available in this § 1983 action. To the extent

that the Plaintiff attempts to seek relief on behalf of his daughter, he is not

qualified to do so. See Myers v. Loudoun Cnty. Pub. Schls., 418 F.3d 395,

400 (4th Cir. 2005) (“An individual unquestionably has the right to litigate his

own claims in federal court.... The right to litigate for oneself, however, does

not create a coordinate right to litigate for others”). Therefore, the Plaintiff’s

claim that his daughter suffered an injury is dismissed.

The only relief that the Plaintiff seeks on his own behalf is the release

from custody. “[W]hen a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or a speedier release

from that imprisonment, his sole federal remedy is a writ of habeas corpus.”

See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). To the extent that the

Plaintiff seeks release from his present incarceration, he must do so, if at all,

in a separate civil action.4 See generally 28 U.S.C. § 2254.

Accordingly, the Complaint is dismissed without prejudice as frivolous

and for failure to state a claim upon which relief can be granted.

Finally, the Plaintiff has filed a Letter [Doc. 7], that is construed as a

Motion to Appoint Counsel. He states that he would like free assistance from

a volunteer attorney.5 There is no absolute right to the appointment of

counsel in civil actions such as this one. Therefore, a plaintiff must present

“exceptional circumstances” in order to require the Court to seek the

assistance of a private attorney for a plaintiff who is unable to afford counsel.

Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff has failed

to demonstrate the existence of exceptional circumstances that would

warrant the appointment of counsel. Therefore, this Motion will be denied.

4 The Court expresses no opinion about the merit or procedural viability of such an action.

5 The Plaintiff also expresses interest in the Court’s “settlement program.” [Doc. 7 at 1].

This appears to be a reference to the Pro Se Settlement Assistance Program (PSAP).

However, the Plaintiff is not eligible to participate in PSAP because that program does

not apply to prisoner civil rights cases.

IV. CONCLUSION

In sum, the Plaintiff has failed to state a claim against any Defendant

and the Complaint is dismissed without prejudice, and his Motion to Appoint

Counsel is denied.

The Court will allow the Plaintiff thirty (30) days to amend his

Complaint, if he so chooses, to correct the deficiencies identified in this Order

and to otherwise properly state a claim upon which relief can be granted.

Any Amended Complaint will be subject to all timeliness and procedural

requirements and will supersede the Complaint. Piecemeal amendment will

not be allowed. Should the Plaintiff fail to timely amend his Complaint in

accordance with this Order, this action will be dismissed without prejudice

and without further notice to the Plaintiff.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint is DISMISSED WITHOUT PREJUDICE.

2. The Plaintiff shall have thirty (30) days in which to amend his

Complaint in accordance with the terms of this Order. If Plaintiff fails to

amend the Complaint in the instant case in accordance with this Order and

within the time limit set by the Court, this action will be dismissed without

prejudice and without further notice to Plaintiff.

3. The Plaintiff's Letter [Doc. 7] is construed as a Motion to Appoint

Counsel and is DENIED.

4. The Plaintiff is instructed to refer to the minor rape victim only by

her initials in all future filings with the Court.

The Clerk is respectfully instructed to mail the Plaintiff blank prisoner §

1983 and § 2254 forms, and a copy of this Order.

IT IS SO ORDERED.

Signed: July 5, 2022

Martifi Reidinger ey

Chief United States District Judge “AES

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