Pickens v. Morgan

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL CASE NO. 5:22-cv-00126-MR

BRANDON PICKENS, )

)

Plaintiff, )

)

vs. )

)

JONATHAN C. MORGAN, et al., ) ORDER

)

Defendants. )

_______________________________ )

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

Amended Complaint.1 [Doc. 10]. The Plaintiff is proceeding in forma

pauperis. [Doc. 8].

I. BACKGROUND

The pro se Plaintiff, who is incarcerated at the Alexander Correctional

Institution, filed this civil rights action pursuant to 42 U.S.C. § 1983

addressing an incidents that have allegedly occurred at the Asheville Police

Department. [Doc. 10]. He names as Defendants: Jonathan C. Morgan, an

officer with the Asheville Police Department and the Buncombe County

Sheriff’s Department; “SNAP, Inc. (Snap Chat) Law Enforcement

1 The Plaintiff filed the Amended Complaint before the original Complaint [Doc. 1] was

reviewed for frivolity.

Operations,” a private company located in Santa Monica, California; and

Berenise Estrada, a “law enforcement operations” employee of SNAP, Inc.

[Id. at 2-3]. The Plaintiff claims that the Defendants violated the Fourth

Amendment as follows:

On [July 26, 2019], Jonathan Morgan returned a search warrant

that was issued by Honorable W. Erwin Spainhour and for which

was issued in the matter of custodian records for Plaintiff’s

SnapChat user name ‘namebrand98’ at SNAP, Inc., located at

2772 Donald Douglas Loop North, Santa Monica, CA 90405.

After receiving said records from Berenise Estrada at SNAP, Inc.

law enforcement operations and downloading said records on

7/26/19 at 12:32 PM for items that was seized from SNAP, Inc.

on 5/15/19, 5/16/19, and 7/25/19; in violation of N.C.G.S. § 15A-

248.2

[Id. at 3-5]. For injury, he claims:

These items affected the length of my current sentence of

imprisonment because it was forwarded to the local district

attorney prosecuting my case for the underlying convictions for

consideration and an indictment for habitual felony status.

[Id. at 5]. The Plaintiff seeks injunctive relief, a declaratory judgment, and

compensatory and punitive damages.

2 “A search warrant must be executed within 48 hours from the time of issuance. Any

warrant not executed within that time limit is void and must be marked ‘not executed’ and

returned without unnecessary delay to the clerk of the issuing court.” N.C. Gen. Stat. §

15A-248.

II. STANDARD OF REVIEW

Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Amended 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).

In its frivolity review, a court must determine whether a 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 the Fourth Circuit has explained:

To implicate 42 U.S.C. § 1983, conduct must be fairly attributable

to the State. The person charged must either be a state actor or

have 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. Thus, the Supreme Court has held that private

activity will generally not be deemed “state action” unless the

state has so dominated such activity as to convert it into state

action: [m]ere approval of or acquiescence in the initiatives of a

private party is insufficient.

DeBauche v. Trani, 191 F.3d 499, 506-07 (4th Cir. 1999) (internal quotation

marks and citations omitted).

Here, the Plaintiff names as Defendants SNAP, Inc. and Estrada, a

private entity and an employee of that entity, respectively. The Plaintiff

claims that these Defendants are liable under § 1983 merely because they

provided law enforcement with information about the Plaintiff pursuant to a

search warrant. However, their mere compliance with a search warrant fails

to establish that they were state actors under § 1983. See, e.g., Mitchell v.

St. Elizabeth Hosp., 119 F. App’x 1 (7th Cir. 2004) (affirming dismissal of §

1983 claims on initial review because a hospital did not act under the color

of law when it released plaintiff’s medical records in compliance with a

warrant). Accordingly, the claims against Defendants SNAP, Inc. and

Estrada are dismissed.

As to Defendant Morgan, the Plaintiff has failed to state a § 1983 claim.

The Fourth Amendment provides that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing

the place to be searched, and the persons or things to be seized.” U.S.

Const. amend. IV. The Fourth Amendment requires “only three things” with

respect to search warrants. Dalia v. United States, 441 U.S. 238, 266 (1979).

The warrant must: (1) be issued by a “neutral and detached” magistrate; (2)

contain a particular[] descript[tion of] the place to be searched, and the

persons or things to be seized;” and (3) be based on “probable cause,

supported by Oath or affirmation.” Id.; United States v. Clyburn, 24 F.3d 613,

617 (4th Cir. 1994). Searches conducted pursuant to a validly issued warrant

carry a presumption of legality which can be overcome “if the scope of the

search exceeds that permitted by the terms of the validly issued warrant ...

the subsequent seizure is unconstitutional.” Wilson v. Layne, 526 U.S. 603,

611 (1999).

Here, the Plaintiff claims that that Defendant Morgan returned a search

warrant that violated Section 15A-248 of the North Carolina Criminal

Procedure Act. [See Doc. 10 at 5]. However, he fails to explain how he

believes Defendant Morgan violated the Fourth Amendment. See generally

Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain statement of the claim

showing that the pleader is entitled to relief”); 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).

Construing the Amended Complaint liberally, the Plaintiff appears to

suggest either that evidence was examined more than 48 hours after it was

seized, or that the evidence was seized more than 48 hours after the warrant

was issued.3 As to the first scenario, examining evidence outside the period

provided in Section 15A-248 does not violate the Fourth Amendment. See,

e.g., United States v. Carrington, 700 F. App’x 224 (4th Cir. 2017) (finding no

Fourth Amendment violation where a cellular phone was initially seized

during the warrant period, but forensic analysis was completed and text

messages were recovered after the warrant period expired).

3 The Plaintiff also alleged in the Complaint that Defendant Morgan conducted a search

and seized evidence before obtaining a search warrant. [Doc. 1 at 5]. However, he does

not reassert that claim in the Amended Complaint. See generally Young v. City of Mt.

Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“an amended pleading ordinarily supersedes

the original and renders it of no legal effect.”) (citations omitted).

As to the second scenario, several circuits have concluded that the

execution of an expired search warrant does not violate the Fourth

Amendment because a search warrant is not constitutionally required to

have an expiration date. See United States v. Gerber, 994 F.2d 1556, 1559

(11th Cir. 1993) (“The Fourth Amendment does not specify that search

warrants contain expiration dates”); United States v. Nyah, 928 F.3d 694 (8th

Cir. 2019) (finding that a minor violation of Rule 41 in seizing evidence one

day after the time limit for execution of a warrant expired did not violate the

Fourth Amendment because it was reasonable); United States v. Jarman,

847 F.3d 239, 266 (5th Cir. 2017) (collecting cases). Although the Fourth

Circuit does not appear to have decided whether the execution of expired

warrant violates the Fourth Amendment, it has distinguished circuit findings

that the execution of an expired warrant does not violate the Fourth

Amendment if probable cause remains present, from the execution of a

daytime warrant at night without justification that violates the Fourth

Amendment because a nighttime search was never authorized. Yanez-

Marquez v. Lynch, 789 F.3d 434, 467 n. 20 (4th Cir. 2015). Here, the Plaintiff

does not allege that probable cause dissipated before the warrant was

executed, or that it suffered from any other constitutional infirmity.

Accordingly, the Plaintiff’s allegation that Defendant Morgan violated Section

15A-248 fails to establish a plausible Fourth Amendment claim.

Even if the Plaintiff could state a plausible Fourth Amendment claim, it

would be barred by abstention principles. In Heck v. Humphrey, 512 U.S.

477 (1994), the United States Supreme Court held as follows:

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other 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, 28 U.S.C. § 2254. A

claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under § 1983. Thus, when a state prisoner seeks damages in a

§ 1983 suit, the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated. But if the district court

determines that the plaintiff’s action, even if successful, will not

demonstrate the invalidity of any outstanding criminal judgment

against the plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

Id. at 485-87 (footnotes omitted). Here, the Plaintiff claims that Defendant’s

alleged Fourth Amendment violation affected the length of his current

sentence. [Doc. 10 at 5]. Accordingly, success on the Plaintiff’s Fourth

Amendment claim would necessarily imply the invalidity of his conviction or

sentence in the underlying criminal matter. The Plaintiff, however, has not

alleged that his conviction or sentence have been reversed or otherwise

invalidated. Therefore, his Fourth Amendment claim is also barred by Heck.4

The Court will dismiss this action with prejudice because the Plaintiff

has already amended his complaint once and he has failed to state a claim

for relief. See Green v. Wells Fargo Bank, N.A., 790 F. App’x 535, 536 (4th

Cir. 2020).

IV. CONCLUSION

For the reasons stated herein, the Plaintiff’s Amended Complaint is

dismissed with prejudice.

ORDER

IT IS, THEREFORE, ORDERED that the Plaintiff’s Amended

Complaint [Doc. 10] is DISMISSED WITH PREJUDICE pursuant to 28

U.S.C. § 1915(e)(2)(B)(i)-(ii).

The Clerk is respectfully instructed to close this case.

4 “[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.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) 28 U.S.C. § 2254. The

Plaintiff has recently filed several § 2254 actions in this Court. See, e.g., Case Nos. 1:20-

cv-353-MR, 1:22-cv-102-MR, 1:22-cv-127-MR, 1:22-cv-129-MR. The Court makes no

determinations about the potential merit or procedural viability of any pending or future §

2254 actions.

IT IS SO ORDERED.

Signed: March 28, 2023

erie ws

Chief United States District Judge alle

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