Allen v. Cooper

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:22-CV-463-BO1

DERRICK ALLEN, )

)

Plaintiff, )

) ORDER and

v. ) MEMORANDUM AND

) RECOMMENDATION

ROY COOPER, et al, )

)

Defendants. )

This pro se case is before the court on the application by plaintiff Derrick Allen

(“plaintiff”)2 to proceed in forma pauperis [DE-1] pursuant to 28 U.S.C. § 1915(a)(1)

(“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively.

These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. §

636(b)(1)(A) and (B), respectively.3 The court finds that plaintiff has demonstrated appropriate

1 At the direction of the court, this case was redesignated for the continued efficient administration of justice from the

Eastern District of North Carolina (Eastern Division) with the case number 4:22-CV-452-BO to the Eastern District

of North Carolina (Western Division) with the case number 5:22-CV-463-BO. See [DE-4]; see also Allen v. Cooper

et al, 4:22-cv-452-BO-BM [DE-4].

2 As recently noted in this district:

Plaintiff[, Derrick Allen] has filed numerous pro se lawsuits in this district, see 5:20-CV-144-BO; 5:21-CV-

293-BO; 5:22-CV-179-BO; 5:22-CV-207-FL; 5:22-CV-224-BO; 5:22-CV-301-D; 5:22-CV-322-BO; 5:22-

CV-00368-FL; 5:22-CV-423-M-KS; and 5:22-CV-452, and as well as in other districts, and has been referred

to as a “prolific pro se litigator.” Allen v. Correct Care Sols., No. 1:21-CV-146, 2021 WL 954624, at *1

(M.D.N.C. Mar. 4, 2021), report and recommendation adopted sub nom. 2021 WL 949633 (M.D.N.C. Mar.

12, 2021), aff’d, 853 F. App’x 858 (4th Cir. 2021), and a “serial filer who has taken undue advantage of IFP

status,” Allen v. Birkhead, No. 1:21-CV-551, 2022 WL 16949733, at *1, 5 (M.D.N.C. Nov. 15, 2022) (ruling

that “[b]ecause Plaintiff repeatedly has commenced meritless civil actions in this Court as a pauper

(undeterred by clear instructions to cease his abusive litigation activities and the consequences of his failure

to do so), the Court will deny the instant Applications.”). On February 6, 2023, the Chief Judge in the Middle

District of North Carolina directed the Clerk of Court to refuse to accept for two years any civil action

submitted by Plaintiff without prepayment of the full filing fee. See Allen v. Birkhead, No. l:21-CV-551

(M.D.N.C.). Plaintiff here continues his pattern of filing frivolous actions.

Allen v. Clarke, 5:23-CV-114-FL, 2023 WL 4837855 at *2 (E.D.N.C. June 16, 2023), mem. & recomm. pending.

3 The instant cause of action appears to contain numerous similarities to a complaint plaintiff filed in the Middle

District alleging wrongful imprisonment and Governor Cooper’s failure to respond to his pending pardon application.

evidence of inability to pay the required court costs, and the application to proceed in forma

pauperis will be ALLOWED. However, for the reasons set forth below, it is RECOMMENDED

that plaintiff’s complaint [DE-1-1] be DISMISSED.

ORDER ON IN FORMA PAUPERIS MOTION

To qualify for in forma pauperis status, a person must show that he “cannot because of his

poverty pay or give security for the costs . . . and still be able to provide himself and dependents

with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339

(1948) (internal quotation marks omitted). The court has reviewed plaintiff’s application and finds

that he has adequately demonstrated his inability to prepay the required court costs. His application

to proceed in forma pauperis [DE-1] is therefore ALLOWED.

MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

I. PLAINTIFF’S ALLEGATIONS AND CLAIMS

In this action, plaintiff asserts claims against the following defendants: Governor Roy

Cooper (Gov. Cooper); Governor Cooper’s Business Office; the State Legislative Building; the

Capital Police [sic]; Paul Cobie; Cantrailia Preston; Bobby Carmody; and Ann Marie. [DE-1-1]

at 1. Plaintiff’s handwritten complaint alleges the following in its entirety:4

I have submitted approximately five scheduling request [sic] @

www.governor.nc.gov regarding my pending pardon [P17-0009] office of

executive clemency, and have yet to be contacted or meet with Governor Cooper

or his staff. Moreover, I have been wrongfully imprisoned twice in re 98crs5208,

98crs7980, and 98crs7979 and 1:17-CR-157-I, and have yet to be compensated.

Moreover, when visiting N.C. State legistrative [sic] building (law library)

security for the legislative building they are defiant, oppositional, they give you the

That previous action was dismissed for failure to state a claim. Allen v. Cooper, No. 1:19CV794, 2019 WL 6255220

(M.D.N.C. Nov. 22, 2019).

4 For ease of review and legibility, the court has transcribed plaintiff’s handwritten complaint from its original

apparently random mix of upper and lowercase letters to sentence case.

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stare down and attempt to proke [sic] you which isn’t necessary. I am not a

convicted felon, but a student at GTCC, majoring in Associate Arts – Spanish and

Paralegal Technologies.

Acting under color of state law, is defined as when individuals are bestowed

with an [sic] responsibility and neglect to fulfill his or her duties. Representatives

of governor Cooper’s business of [sic] fail to contact I [sic], and security at the

legistrative [sic] state building appears to be seeking conflict as oppose [sic] to

allow-ing visitors to visit the law library.

[DE-1-1] at. 2-3.

Plaintiff claims that he is seeking “punitive and emotional distress damage(s) in

the amount of $800,000.00” Id. at 3.

II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

After allowing a party to proceed in forma pauperis, as here, the court must conduct a

frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court

must determine whether the action is frivolous or malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to

dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard

for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

In evaluating frivolity specifically, a pro se plaintiff’s pleadings are held to “less stringent

standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989).

Nonetheless, the court is not required to accept a pro se plaintiff’s contentions as true. Denton,

504 U.S. at 32. The court is permitted to “pierce the veil of the complaint’s factual allegations and

dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327.

Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328.

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Provided that a plaintiff’s claims are not clearly baseless, the court must weigh the factual

allegations in plaintiff’s favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must

read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to

support the claims asserted. White, 886 F.2d at 724.

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for

relief must contain “a short and plain statement of the grounds for the court’s jurisdiction . . . [and]

a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more

than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190 (4th Cir.

2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient

if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of

action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).

A court may also consider subject matter jurisdiction as part of the frivolity review. See

Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question

of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”);

Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007)

(discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal).

“Federal courts are courts of limited jurisdiction and are empowered to act only in those specific

situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The

presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated

that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden

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of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff.

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter

jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must

affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines

that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3). One

basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises

under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.

III. ANALYSIS

Having found that plaintiff is financially eligible to proceed in forma pauperis, the court

must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff

claims federal question jurisdiction under 28 U.S.C. § 1331 and 18 U.S.C. § 242, as well as the

Eighth and Fourteenth Amendments to the U.S. Constitution. [DE-1-2] at 1. In addition,

plaintiff’s reference to individuals “acting under color of state law” ([DE-1-1] at 3) will be liberally

construed as an effort to assert a claim under 42 U.S.C. § 1983, as discussed below. 28 U.S.C. §

1331 is the statute codifying federal question jurisdiction.5 It is not a source of substantive rights

itself.

A. No private cause of action under 18 U.S.C. § 242

18 U.S.C. § 242, the criminal statute, upon which plaintiff expressly relies for his claim

([DE-1-2] at 1), does not create a private right of action. See El Bey v. Celebration Station, No.

3:02CV461, 2006 WL 2811497, at *3 (W.D.N.C. Sept. 28, 2006) (“[18 U.S.C. § 242] however,

5 “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties

of the United States.” Title 28 U.S.C. § 1331.

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do[es] not give rise to a civil action for damages, and neither the plaintiff nor this Court has the

authority to issue a criminal complaint.”), aff’d, 242 F. App’x 917 (4th Cir. 2007).

Accordingly, this claim is subject to dismissal for failure to state a claim upon which relief

can be granted, and the undersigned RECOMMENDS that such claim be DISMISSED. See

Andrews v. Wolcott Rivers Gates, No. 3:14CV76-HEH, 2014 WL 3016483, at *2 (E.D. Va. July

3, 2014) (holding that plaintiff failed to state a claim upon which relief could be granted where his

claim was asserted pursuant to a criminal statute that did not include a private right of action),

aff’d, 587 F. App’x 75 (4th Cir. 2014).

B. Failure to state a claim under the Eighth and Fourteenth Amendments

In his civil cover sheet plaintiff alleges violations of his Eighth and Fourteenth Amendment

constitutional rights. [DE-1-2] at 1. As noted above, in liberally reading plaintiff’s filings, the

court construes the complaint to assert a claim under § 1983, the statute which provides a cause of

action for alleged constitutional violations.

1. 42 U.S.C. § 1983

To establish a claim under § 1983, a plaintiff must prove: “(1) the violation of a right

secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was

committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL,

2021 WL 312621, at *2 (E.D.N.C. Jan. 6, 2021), report and recommendation adopted, No. 4:20-

CV-233-FL, 2021 WL 308592 (E.D.N.C. Jan. 29, 2021), aff’d, No. 21-2110, 2021 WL 5985559

(4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4

(M.D.N.C. Apr. 12, 2012)) (internal citations omitted) (internal quotation marks omitted).

As an initial matter, Governor Cooper’s Business Office and the State Legislative Building

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are not persons under § 1983. See Dickerson v. China, No. 13-CV-00498-JPG, 2013 WL 3155396,

at *4 (S.D. Ill. June 20, 2013) (noting that the Governor’s Office for the State of Washington,

states and their agencies are not “persons” subject to suit under 42 U.S.C. § 1983.”); Jones v.

Minner, No. CV 17-1837-RGA, 2018 WL 4725284, at *3 (D. Del. Oct. 2, 2018) (noting that

“Delaware Governor’s Office, is not a ‘person’ under § 1983 and cannot be sued.”); Smith v.

Charleston Cnty., No. CV 9:19-967-HMH-BM, 2019 WL 2870406, at *1 (D.S.C. June 11, 2019),

report and recommendation adopted, No. CV 9:19-967-HMH-BM, 2019 WL 2869593 (D.S.C.

July 3, 2019) (“Courts have routinely held that inanimate objects such as buildings, facilities, and

grounds, . . . , do not act under color of state law, and are not a “person” subject to suit under §

1983.”) (collecting cases); Glenn v. Louisiana, No. CIV.A. 08-4817, 2009 WL 382680, at *2 (E.D.

La. Feb. 11, 2009) (noting that a building is not a person subject to suit under 42 U.S.C. § 1983)

(citations omitted).

Similarly, the “Capital Police,” ([DE-1-1] at 1), which the undersigned construes as the

North Carolina State Capitol Police, is a division of the North Carolina Department of Public

Safety, see N.C.G.S. § 143B-911(a), and as an agency of the state, it is also not a person under §

1983. See Butler v. United States Dist. Ct. for E. Dist. of N. Carolina, No. 5:22CT03097, 2022

WL 2813040, at *2 (E.D.N.C. July 18, 2022), reconsideration denied, No. 5:22CT03097, 2022

WL 3695480 (E.D.N.C. Aug. 25, 2022) (“[A]rms of the state, such as the Department of Public

Safety, are not “persons” for the purposes of § 1983.”); Connor v. N. Carolina Dep’t of Pub. Safety,

No. 1:18-CV-184-FDW, 2018 WL 5046084, at *2 (W.D.N.C. Oct. 16, 2018) (“Neither the NC

DPS nor any of its facilities are “persons” under § 1983”).

Plaintiff’s § 1983 claims for damages against any of the other defendants in their official

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capacities would likewise fail. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct.

2304, 2312, 105 L. Ed. 2d 45 (1989) (finding that “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.”); Fauconier

v. Clarke, 966 F.3d 265, 279–80 (4th Cir. 2020) (noting that “neither States nor state officials

acting in their official capacities constitute “persons” within the meaning of [42 U.S.C. § 1983]

when sued for monetary relief.”).

In addition, sovereign immunity under “[t]he Eleventh Amendment bars suits against a

state or its agencies, unless the state has waived its immunity, or Congress has exercised its power

under section 5 of the Fourteenth Amendment to override that immunity.” Leonard v. N. Carolina

Dep’t of Correction, No. 5:10-CT-3082-FL, 2011 WL 2173635, at *2 (E.D.N.C. June 2, 2011).

“Congress has made no move to impose § 1983 liabilities upon states, and North Carolina has done

nothing to waive its immunity.” Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989). “The

Eleventh Amendment [also] bars suit ‘in law or in equity’ against . . . a state official sued in his

official capacity.” Aikens v. Ingram, 71 F. Supp. 3d 562, 570 (E.D.N.C. 2014), aff’d on other

grounds, 811 F.3d 643 (4th Cir. 2016), as amended (Feb. 1, 2016).

Accordingly, the undersigned RECOMMENDS that any claims against Governor Cooper’s

Business Office, the State Legislative Building, the North Carolina State Capitol Police Division

and the remaining defendants in their official capacities be DISMISSED for failure to state a claim.

To the extent that plaintiff was attempting to sue defendants in their individual capacities,

his claims would likewise fail for the reasons discussed below.

2. Eighth Amendment claim

The Eighth Amendment “protects inmates from inhumane treatment and conditions while

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imprisoned.” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (quoting Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996)) (emphasis added). Plaintiff does not allege that he is currently

imprisoned, nor does he allege any inhumane treatment during the time he was incarcerated.

Therefore, plaintiff has failed to state a claim under the Eighth Amendment for which relief may

be granted, and the undersigned RECOMMENDS that any such claim be DISMISSED.

3. Fourteenth Amendment claim

a. Pardon and meeting requests with Gov. Cooper

Plaintiff’s complaint could be liberally construed as alleging that Gov. Cooper’s failure to

issue him his pardon is a violation of his Due Process Rights. See [DE-1-1] at 3 (alleging that

Gov. Cooper “fail[ed] to contact [plaintiff]” and “neglect[ed] to fulfill his . . . duties”).

“[A]lthough some minimal due process protections apply to a state clemency proceeding,

the decision to grant or deny clemency is left to the discretion of the governor . . . .” Armando

Soto v. North Carolina, No. 5:17-CT-03187-D, 2018 WL 7958118, at *1 (E.D.N.C. Sept. 27, 2018)

(alterations in original) (quoting Roll v. Carnahan, 225 F.3d 1016, 1018 (8th Cir. 2000)), rep. and

recomm. adopted, No. 5:17-CT-3187-D, 2019 WL 1507405 (E.D.N.C. Apr. 5, 2019); Bacon v.

Lee, 549 S.E.2d 840, 846–47 (N.C. 2001) (“The people of North Carolina have vested their

Governor with virtually absolute clemency authority since the adoption of their first Constitution

in 1776.”). This court has previously noted that “only ‘truly outrageous’ clemency procedures rise

to the level of a due process violation.” Armando Soto, 2018 WL 7958118, at *1 (quoting

Gissendaner v. Comm’r, Ga. Dep’t of Corr., 794 F.3d 1327, 1331 (11th Cir.), cert. denied sub

nom., Gissendaner v. Bryson, 136 S. Ct. 25 (2015)). Here, plaintiff has failed to show that a failure

by Gov. Cooper or his Business Office to respond to plaintiff’s letters or meet with him amounts

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to an extreme due process violation. Accordingly, the undersigned finds plaintiff’s claims related

to his clemency application to be frivolous, and the undersigned RECOMMENDS that any such

claims be DISMISSED.

b. Interactions with legislative building security personnel

Plaintiff’s allegations that “security for the legistrative [sic] building . . . are defiant,

oppositional, . . . give you the stare down and attempt to [provoke] you” similarly fails to rise to

the level of a constitutional injury. See [DE-1-1] at 2. While an individual might perceive the

alleged actions of the legislative building security as unpleasant, plaintiff does not allege how these

actions deprived him of any right that is protected by the statutes and Constitution of the United

States. Accordingly, the undersigned finds any claims associated with plaintiff’s interactions with

the security for the North Carolina legislative building to be frivolous, and the undersigned

RECOMMENDS that any such claims be DISMISSED.

C. Failure to state a claim under the Fourth Amendment – wrongful imprisonment

The court construes plaintiff’s references to being “wrongfully imprisoned” as representing

an unconstitutional imprisonment claim. The Fourth Circuit has allowed §1983 claims for

unconstitutional imprisonment. Generally, Ҥ1983 damages claim for unconstitutional

imprisonment is not appropriate unless and until plaintiff’s 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.’” Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).

Plaintiff has not alleged that any of these circumstances apply to his situation. See

generally [DE-1-1].

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However, even if any of these circumstances did apply to plaintiff, he has not alleged that

any of the defendants were responsible for any such wrongful imprisonment. Accordingly any

such claim must fail, and the undersigned RECOMMENDS that any such claim be DISMISSED.

D. Deficient pleading

Finally, the deficient pleading in the complaint [DE-1-1] subjects the complaint to

dismissal for failure to state a claim upon which relief may be granted. While pro se litigants are

entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No.

5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D.N.C. 17 May 2016) (“[T]he principles

requiring generous construction of pro se complaints are not without limits.”), rep. & recomm.

adopted, 2016 WL 3920213 (July 15, 2016).

With the exception of Gov. Cooper and possibly the North Carolina State Capitol Police,

plaintiff does not appear to allege specific conduct by any other defendants named. Accordingly,

plaintiff’s complaint against such defendants fails to state a claim upon which relief can be granted

because of these pleading deficiencies. See Fetherson v. Blackmon, No. CV 0:16-3189-JFA-PJG,

2017 WL 1365114, at *2 (D.S.C. Feb. 9, 2017) (recommending dismissing as frivolous claims

against defendant that are “conclusory and lack supporting facts”), rep. & recomm. adopted, 2017

WL 1344616 (Apr. 12, 2017); Padilla v. Priest, No. 1:13-CV-287, 2013 WL 12156670, at *2 (E.D.

Va. June 25, 2013) (dismissing case as frivolous where complaint was “devoid of any facts to

support plaintiff’s allegations” and “contains precisely the type of naked assertions of wrongdoing

which are unsupported by any factual enhancement and therefore necessitates dismissal”), aff’d,

543 F. App’x 353 (4th Cir. 2013).

Accordingly, the undersigned RECOMMENDS that claims against Governor Cooper’s

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Business Office; the State Legislative Building; Paul Cobie; Cantrailia Preston; Bobby Carmody;

and Ann Marie additionally be DISMISSED for failure to state a claim.

In sum, the undersigned concludes that plaintiff’s complaint, in its entirety, is frivolous and

fails to state a claim upon which relief may be granted, and RECOMMENDS that this case be

DISMISSED in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

V. CONCLUSION

For the reasons set forth above, it is RECOMMENDED that plaintiff’s complaint be

DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be

served on plaintiff or, if represented, his counsel. Plaintiff shall have until September 9, 2023 to

file written objections to this Memorandum and Recommendation. The presiding district judge

must conduct his own review (that is, make a de novo determination) of those portions of the

Memorandum and Recommendation to which objection is properly made and may accept, reject,

or modify the determinations in the Memorandum and Recommendation; receive further evidence;

or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local

rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation

by the foregoing deadline, the party will be giving up the right to review of the Memorandum

and Recommendation by the presiding district judge as described above, and the presiding

district judge may enter an order or judgment based on the Memorandum and

Recommendation without such review. In addition, the party’s failure to file written

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objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals

from an order or judgment of the presiding district judge based on the Memorandum and

Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

Submitted, this the 21st day of August, 2024.

Brian S. Meyers

United States Magistrate Judge

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