Pagan v. Brogdon

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:22-cv-00693-MR

3:22-cv-00695-MR-DCK

LANCE RICHARDSON PAGAN, )

)

Plaintiff, )

)

vs. ) ORDER

)

)

DAVID BROGDON, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaints filed in Civil Case No. 3:22-cv-00693-MR (“CV 693”), Doc. 1, and

Civil Case No. 3:22-cv-00695-MR-DCK (“CV 695”), Doc. 1, filed under 42

U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff is

proceeding in forma pauperis. [CV 693, Docs. 2, 9; CV 695, Docs. 2, 8].

I. BACKGROUND

Pro se Plaintiff Lance Richardson Pagan (“Plaintiff”) is a federal

prisoner currently incarcerated at Edgefield FCI in Edgefield, South

Carolina.1 [See Criminal Case No. 3:22-cr-00010-RJC-DSC-1 (“CR”)]. On

1 The docket in this matter still reflects that Plaintiff is detained at the Catawba County

Detention Center in Newton, North Carolina. According to the Bureau of Prisons website,

however, Plaintiff is now at FCI Edgefield and has failed to update the Court of his new

January 12, 2022, a Criminal Complaint sworn by J. David Brogdon, Federal

Bureau of Investigations (FBI) Task Force Officer (TFO) employed by the

Gastonia Police Department (GPD), was filed against Plaintiff. [CR Doc. 1].

Plaintiff was arrested the same day pursuant to an arrest warrant issued by

a Magistrate Judge. [CR Doc. 2; 1/12/2022 Docket Entry]. On January 19,

2022, Plaintiff was charged in a seven-count Indictment on various drug and

firearm charges in conformity with the charges listed on the arrest warrant.

[CR Doc. 7; see CR Doc. 2]. A Superseding Indictment was filed on March

15, 2022. [CR Doc. 17]. Plaintiff proceeded to trial and was found guilty on

two counts, including possession with intent to distribute controlled

substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count

Five) and possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) (Count Seven). [CR Doc. 74]. The jury was hung on the

remaining five counts and the Court declared a mistrial as to those counts.

[See id.; 10/4/2022 Oral Order]. Thereafter, the Court granted the

Government’s motion to dismiss the remaining counts. [CR Docs. 79, 84].

Plaintiff was sentenced on March 20, 2023 to a total term of imprisonment of

300 months. [CR Doc. 140 at 2]. Judgment on Plaintiff’s conviction was

address. The Court will order Plaintiff to update his address with the Court or face

dismissal of this action without prejudice.

entered on March 27, 2023. [Id.].

Now before the Court are Plaintiff’s Complaints, which he purports to

bring under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Case No. 3:22-cv-693,

Plaintiff names the following Defendants: David Brogdon and Derick Meek,

identified as employees of the Gaston County Police Department (GCPD);

Ron Brown, identified as the Sheriff of “Newton County Catawba;” and

Shannon LNU, identified as a Nurse at the “Newton Catawba County Jail.”2

Plaintiff sues all Defendants in their individual and official capacities.

In this Complaint, Plaintiff alleges that, on January 12, 2022,

Defendants Brogdon and Meek falsely arrested Plaintiff. [CV 693, Doc. 1 at

3-5]. Plaintiff also alleges that he has been denied the medical care he

needs from injuries he suffered during a 2015 assault.3 Plaintiff alleges that

he suffers from headaches and back pain from this assault and that on “his

arrival at all facilities,” including “Charlotte Mecklenburg, McDowell County &

Newton County jails,” he has reported these issues. Plaintiff also alleges

2 Newton, North Carolina, is the county seat of Catawba County, North Carolina.

3 The Plaintiff filed a Bivens action addressing the alleged 2015 assault in Case No. 3:20-

cv-414-MR, which was dismissed on initial review as barred by the statute of limitations

and abstention and immunity principles. Pagan v. FBI, 2020 WL 5899106 (W.D.N.C. Oct.

5, 2020). The Fourth Circuit Court of Appeals affirmed. Pagan v. FBI, 2022 WL 986987

(4th Cir. Mar. 31, 2022).

that the “Federal Bureau has denied [Plaintiff] to go to a hospital.” Plaintiff

makes no allegations specific to Defendants Brown or Shannon LNU. [Id.,

id. at 5]. Plaintiff claims that Defendants violated his rights under the Fourth,

Fifth, and Eighth Amendments. [Id., id. at 3]. For injuries, Plaintiff claims

that he has suffered from unresolved injuries from the 2015 assault and that

he lost certain assets due to the false arrest. [Id., id. at 5]. For relief, Plaintiff

seeks $1.5 million and that Defendants “be punished to the highest extent.”

[Id., id.].

In Case No. 3:22-cv-695, Plaintiff again names Brogdon and Meek as

Defendants and he also names the GCPD, the FBI, and FNU Hoyle,

identified as a GDP officer, as Defendants. [CV 695, Doc. 1]. Plaintiff’s

claims in Case No. 3:22-cv-695 overlap with his claims in Case No. 3:22-cv-

693. That is, he claims that Defendants Brogdon, Meek, and Hoyle pulled

over his vehicle “without cause,” falsely arrested him, and searched his

residence without a warrant on January 12, 2022, and that he was “later

charged with fruits allegedly found from the search.” [Id., id. at 3-5]. For

injuries, Plaintiff again references injuries he alleges to have suffered in 2015

during a prior incarceration and claims he was denied access to a hospital

for treatment of his “back issues” and headaches. He also asks the Court to

enjoin Defendants Brogdon and Meek from investigating and arresting

Plaintiff in the future. [Id., id. at 5]. Plaintiff again seeks $1.5 million in

damages. [Id., id.].

II. STANDARD OF REVIEW

Because 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 “frivolous or malicious [or] fails to state a claim on which

relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A

the Court must conduct an initial review and identify and dismiss the

complaint, or any portion of the complaint, if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted; or seeks monetary relief

from a defendant who is immune to such relief.

In its frivolity review, this 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

A. Case No. 3:22-cv-00695

As a preliminary matter, the Court will dismiss Plaintiff’s Complaint filed

in Case No. 3:22-cv-695 without prejudice as duplicative of Plaintiff’s

Complaint in 3:22-cv-693. While Plaintiff names additional Defendants in the

second-filed action, the claims therein are essentially identical to the claims

set out in the first-filed action. The Court sees no reason why these actions

should be allowed to proceed simultaneously. If Plaintiff wishes to amend his

Complaint as set forth below to name the additional Defendants, he may do

so in accordance with the terms of this Order.

B. Case No. 3:22-cv-00693

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the

violation of a right secured by the Constitution or laws of the United States

and must show that the deprivation of that right was committed by a person

acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff’s Complaint in Case No. 3:22-cv-693, fails initial review for

several reasons. First, suits against an officer in his official capacity

“generally represent only another way of pleading an action against an entity

of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165,

105 S.Ct. 3099 (1985) (1985) (quoting Monell v Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 (1978)). The

Office of Sheriff is not liable under § 1983 for an employee’s acts “unless

action pursuant to official municipal policy of some nature caused [the]

constitutional tort.” Collins v. City of Harker Heights, 503 U.S. 115, 120-21,

112 S.Ct. 1061, 1066 (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036).

That is, “[f]or a governmental entity to be liable under section 1983, the

official policy must be the moving force of the constitutional violation.” Moore

v. City of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997) (internal

quotation marks and citations omitted). “Thus, the entity’s ‘policy or custom’

must have played a part in the violation of federal law.” Id. (quoting Monell,

436 U.S. 658, 694, 98 S.Ct. at 2037-38).

Plaintiff purports to sue Defendant Brown, the Catawba County Sheriff;

Shannon LNU, an employee of the Catawba County Sheriff’s Office; and

Defendants Brogdon and Meek, employees of the GCPD; in their official and

individual capacities. Plaintiff, however, fails to allege that any official policy

was the moving force behind or otherwise played a part in any constitutional

violation. As such, Plaintiff has failed to state a claim against Defendants in

their official capacities and these claims will be dismissed.

Second, as to Defendants Brogdon and Meek, Plaintiff has failed to

state any claim for relief and these claims are barred by Heck v. Humphrey,

512 U.S. 477 (1994), in any event. Plaintiff vaguely alleges that these

Defendants falsely arrested him. In addition to the paucity of this allegation,

the Court may take judicial notice of its own docket. It appears that Plaintiff’s

arrest was made pursuant to a properly supported warrant. [See CR Doc. 2].

Also, as noted, Plaintiff was convicted of two of the seven charges for which

he was arrested. [See CR Doc. 2]. In Heck, 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 or

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 486-87 (footnotes omitted; emphasis added). Here, Plaintiff’s claims

depend on what he contends was his wrongful arrest and imprisonment by

Defendants Brogdon and Meek. As such, a judgment in Plaintiff’s favor

would imply the invalidity of his conviction in the underlying criminal matter.

Plaintiff, however, has not alleged that his conviction has been vacated or

otherwise invalidated (and the Court’s own docket shows that it has not).

Therefore, his claims against Defendants Brogdon and Meeks appear to be

barred by Heck.

Third, Plaintiff has failed to state a claim under the Eighth Amendment

against Defendant LNU or Brown. Plaintiff makes no allegations particular

to these Defendants and has otherwise failed to support a claim based on

deliberate indifference to a serious medical need in any event. To establish

liability under 42 U.S.C. § 1983, a plaintiff must show that the defendants

“acted personally” to cause the alleged violation. See Vinnedge v. Gibbs,

550 F.2d 926, 928 (4th Cir. 1977) (citation omitted). Plaintiff alleges only

that he was denied care for headaches and back pain caused by a 2015

assault. As to Defendant Brown in particular, the doctrine of respondeat

superior does not apply in actions brought under § 1983. See Monell, 436

U.S. at 694. A supervisor can only be liable where (1) he knew that his

subordinate “was engaged in conduct that posed a pervasive and

unreasonable risk of constitutional injury;” (2) his response showed

“deliberate indifference to or tacit authorization of the alleged offensive

practices;” and (3) there was an “affirmative causal link” between [his]

inaction and the constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994) (internal quotation marks omitted). As such, Plaintiff’s claims

against Defendants Brown and LNU fail initial review and these Defendants

will be dismissed.

Finally, Plaintiff also purports to bring this action under Bivens. A

Bivens action is the judicially-created counterpart to 42 U.S.C. § 1983, and

allows an action for money damages to be brought against individuals acting

under the color of federal law for injuries caused by their unconstitutional

conduct. Bivens, 403 U.S. at 395-97. Bivens’ core premise is to deter

individual officers’ unconstitutional acts. See Correctional Servs. Corp. v.

Malesko, 534 U.S. 61 (2001). “Because vicarious liability is inapplicable to

Bivens and § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Bivens claims

are not actionable against the United States, federal agencies, or public

officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471,

475, 484-86 (1994); Dao v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“a

Bivens action does not lie against either agencies or officials in their official

capacity”) (citing Meyer, 510 U.S. at 484-86). Here, Plaintiff alleges that “the

Federal Bureau” denied his request to go to a hospital. Even if Plaintiff had

named this entity as Defendant, which he did not, his claim would have failed.

Federal agencies are not subject to Bivens claims and Plaintiff’s allegation

is woefully insufficient to state an Eighth Amendment claim in any event.

Plaintiff’s Bivens claim, therefore, also fails initial review and will be

dismissed.

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

Complaint if he so chooses, to properly state a claim upon which relief can

be granted that is not Heck-barred. Any amended complaint will be subject

to all timeliness and procedural requirements and will supersede the

Complaint. Piecemeal amendment will not be permitted.

IV. NOTICE OF ADDRESS CHANGE

As noted, Plaintiff is now incarcerated at FCI Edgefield. Plaintiff,

however, has not notified the Court of his current address. 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.

Accord Walker v. Moak, Civil Action No. 07-7738, 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). Before dismissing this action for failure to prosecute, the Court will give

Plaintiff fourteen (14) days in which to notify the Court of his updated

address.

V. CONCLUSION

For the foregoing reasons, the Court concludes that Plaintiff’s

Complaint fails initial review. The Court will allow Plaintiff thirty (30) days to

amend his Complaint, if he so chooses, to properly state a claim upon which

relief can be granted in accordance with the terms of this Order.

Additionally, the Court will allow Plaintiff fourteen (14) days to notify the Court

of his new address, or this action will be dismissed without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff’s Complaint in Case No.

3:22-cv-00695-MRR-DCK [Doc. 1] is DISMISSED as duplicative in

accordance with the terms of this Order.

The Clerk is instructed to terminate this action.

IT IS FURTHER ORDERED in Case No. 3:22-cv-00693-MRR that:

(1) Plaintiff shall have thirty (30) days in which to amend his

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

fails to so amend his Complaint, the matter will be dismissed

without prejudice and without further notice to Plaintiff.

(2) Defendants Brogdon, Meek, Brown, and LNU are DISMISSED

without prejudice as Defendants in this matter in accordance

with the terms of this Order.

(3) Plaintiff's official capacity, Fourth, Fifth, and Eighth Amendment,

and Bivens claims are hereby DISMISSED.

(4) Plaintiff has fourteen (14) days from this Order to notify the Court

of his new address. Plaintiffs failure to timely notify the Court

will result of dismissal of this action without prejudice and without

further notice to Plaintiff.

(5) The Clerk is respectfully instructed to mail Plaintiff a blank

prisoner § 1983 form.

Signed: June 19, 2023

IT IS SO ORDERED.

Sos

Chief United States District Judge AS

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