Bailey

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:25-cv-00432-MR

JAMES MARLIN BAILEY, )

)

Plaintiff, )

)

vs. )

) MEMORANDUM OF

) DECISION AND ORDER

BRIAN KEMP, et al., ) ON INITIAL REVIEW

)

Defendants. )

___________________________ )

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

Amended Complaint. [Doc. 8]. Plaintiff is proceeding in forma pauperis.

[Docs. 1, 2].

I. BACKGROUND

On June 23, 2025, pro se Plaintiff James Marlin Bailey (“Plaintiff”) filed

a Complaint pursuant to 42 U.S.C. § 1983, naming the following Defendants:

(1) Roy Cooper, former Governor of North Carolina; (2) Josh Stein, former

Attorney General of North Carolina; (3) Elaine Marshall, North Carolina

Secretary of State; (4) Tessa Seller, identified as the 43rd District Judge of

Clay County, North Carolina; (5) Ashley Hornsby Welch, identified as District

Attorney 43rd; (6) Mark Buchanan, Sheriff of Clay County, North Carolina;

(7) Curtis Cochran, Sheriff of Swain County, North Carolina; (8) Doug

Farmer, Sheriff of Jackson County, North Carolina; (9) the “Governor’s Office

of North Carolina & all designees;” (10) the “Attorney Generals [sic] Office of

the State of North Carolina & all designees;” (11) “43rd District Attorney’s

Office & all designees;” (12) “Secretary of the State of North Carolina & all

designees;” (13) “Clay County Sheriff Office & all designees;” (13) “Swain

County Sheriff Office & all designees;” and (15) “Jackson County Sheriff

Office & all designees.” [Case No. 1:25-cv-00190-MOC-WCM (“Case No. -

190”), Doc. 1]. Plaintiff sued the Defendants in their individual and official

capacities. [Id., id. at 2-3].

Plaintiff alleged inter alia as follows.

On February 18, 2020, Plaintiff pleaded guilty to Possession of

Methamphetamine and Possession of Heroin in Towns County Georgia. [Id.,

Doc. 1-1 at 8]. He received a sentence of three-years’ probation. [Id., id.].

On August 13, 2021, Plaintiff’s probation officer caused to be issued a

Warrant for Arrest of Probationer (“Probation Warrant”) alleging that Plaintiff

had violated the conditions of his probation by committing a new criminal

offense of battery-family violence in Towns County. [Id., id.]. The Probation

Warrant expired on December 24, 2022. [Id., id.].

On November 8, 2022, Assistant District Attorney (“ADA”) Anna

Guardino from the Enotah Judicial Circuit in Georgia applied to the Governor

of Georgia, Brian Kemp, for the issuance of a requisition on the Governor of

the State of North Carolina for the extradition of the Plaintiff, who was

residing in Cherokee, North Carolina. [Id., Doc. 1-1 at 9]. In support of this

request, ADA Guardino attached certified copies of the underlying judgment

against the Plaintiff and the Probation Warrant. On December 1, 2022,

Governor Kemp issued a Requisition Demand and Agent Authorization to

then North Carolina Governor Defendant Roy Cooper demanding the arrest

and delivery of the Plaintiff to the Sheriff of Towns County, attaching certified

copies of the underlying judgment against the Plaintiff and the Probation

Warrant. [Id., id.]. On December 19, 2022, Defendant Cooper, in response

to this demand, signed a warrant for the arrest and extradition of the Plaintiff.1

[Id., id.].

On February 15, 2023, U.S. Marshal Donald Cline, assisted by the

Eastern Band of Cherokee Indians (“EBCI”) Tribal Police, arrested the

Plaintiff at his residence pursuant to this unlawful extradition requisition. [Id.,

Id. at 5]. Plaintiff was taken to the Jackson County Detention Center and

appeared before the Honorable District Judge Donna Forga. [Id., Id. at Doc.

1 In this regard, Plaintiff alleged that Defendants Cooper and Stein “signed an unlawful

extradition requisition” violating Plaintiff’s rights. [Doc. 1 at 5]. Plaintiff further alleged that

“[t]o assist in this unlawful requisition,” the Clay County Sheriff’s Office, the 43rd District

Attorney’s Office, and the 43rd District Judge, presumably Defendant Seller, “[f]abricated

that plaintiff was on probation which was a lie and incorrect.” [Id.].

1 at 5, Doc. 1-1 at 9]. Plaintiff was given a copy of the requisition and

informed of his rights pursuant to N.C. Gen. Stat. § 15A-730, including his

right to a reasonable time within which he may apply for Writ of Habeas

Corpus. [Id., Doc. 1-1 at 9]. Plaintiff pointed out that the Probation Warrant

was expired and that there was no “fugitive of justice” warrant. Plaintiff was

assigned a public defender, passed up to Superior Court, and locked in a

cell for 75% of the next nine (9) days. [Id., Doc. 1 at 6].

On February 24, 2023, Plaintiff was brought to court in chains. The

Honorable Bradley Letts, Senior Resident Superior Court Judge, presided.

[Id., id.]. Judge Letts granted the writ of habeas corpus, concluding that there

was no longer a legal basis for the extradition of the Plaintiff to the State of

Georgia because “the warrant for arrest of [Plaintiff] in Georgia expired on

December 24, 2022.” [Id., Doc. 1-1 at 9]. Plaintiff was released from the

Jackson County Detention Center a few hours later. [Id., Doc. 1 at 6].

Plaintiff claimed violation of his rights under the Fourth and Fourteenth

Amendment. [Id., see id. at 5-6].

Plaintiff’s Complaint in that matter failed initial review for the reasons

stated in the Court’s Order. [Id., Doc. 5 at 6-11]. The Court noted that

Plaintiff’s own materials plainly showed that he was on probation and that

the Probation Warrant remained valid when Governor Cooper signed a

warrant for Plaintiff’s arrest and extradition and concluded, therefore, that

any claim based on the request for or issuance of the December 19, 2022

extradition warrant failed. [Id., id. at 8]. The Court further noted that “[t]he

real issue [was] whether Plaintiff has stated a claim based on his February

15, 2023 arrest and subsequent 9-day detention, which appears to have

been based on an expired Probation Warrant.” [Id., id. at 9]. Plaintiff,

however, did not name U.S. Marshal Cline or any EBCI police officers as

defendants or allege any facts implicating any of the named Defendants in

this arrest. The Court, therefore, dismissed any such claim. [Id., id.].

The Court allowed Plaintiff the opportunity to amend his Complaint to

state a claim for relief. [Id., id. at 11-12]. Before receiving the Court’s Order,

Plaintiff moved to amend his Complaint. [Id., Doc. 6]. Because Plaintiff’s

proposed amended Complaint also failed to state a claim for relief and

because Plaintiff did not otherwise file an amended Complaint in accordance

with the Court’s initial review Order, the Court dismissed Case No. -190

without prejudice on August 8, 2025. [Id., Doc. 7].

In the meantime, on July 10, 2025, Plaintiff filed the instant case in

the Northern District of Georgia. [Doc. 1-1, see Doc. 3]. On November 12,

2025, Plaintiff filed an Amended Complaint. [Doc. 8]. Based on the

allegations of Plaintiff’s Amended Complaint, “in which he complains about

events that occurred during his [February 15, 2023] arrest in Cherokee, North

Carolina and incarceration in Jackson County, North Carolina, … and does

not appear to challenge the issuance or validity of the extradition warrant,”

United States Magistrate Judge Catherine M. Salinas transferred the case

here to the Western District. [Doc. 13].

Plaintiff’ Amended Complaint is now before the Court on initial review.

[Doc. 8]. In his Amended Complaint, he largely restates the allegations of

his Complaint in Case No. -190. [See id.]. He names seventeen (17)

Defendants, many of whom he named in Case No. -190, as well as various

Georgia officials and entities. [Doc. 8 at 2-6]. Additionally, he names the

U.S. Marshals Service in Asheville, North Carolina, and the “Cherokee Tribal

Police” in Cherokee, North Carolina, as Defendants. [Id. at 5]. Plaintiff again

alleges that he was arrested at his home on February 15, 2023, pursuant to

the expired Probation Warrant. [See id. at 11]. Plaintiff alleges that the U.S.

Marshals Service falsely arrested him without probable cause and without a

valid arrest warrant and that the Cherokee Tribal Police “assisted in the

kidnapping” at Plaintiff’s home. [Id. at 11].

Plaintiff further alleges as follows. While waiting for the Jackson

County Sheriff’s Department to arrive, the U.S. Marshals Service removed

Plaintiff’s restraints, which were causing Plaintiff numbness and severe pain

in his thumb, wrist, and shoulder. [Id. at 12]. The Jackson County Sheriff’s

Office arrived “with the invalid governors warrant” and Plaintiff was

transported to the Jackson County Detention Center (the “JCDC”). [Id.].

Once Plaintiff arrived at the JCDC, he pointed out that the Probation Warrant

expired on December 24, 2022. [Id.]. Plaintiff, who is of Asian descent, was

dressed in an inmate uniform, violating 18 U.S.C. § 242, which is a “racially

profiled, and racially discriminated crime.”2 [Id.]. At an extradition hearing

before a Jackson County magistrate, Plaintiff pointed out that “the warrant

itself which the Governors warrant is based on is expired.” [Id.]. Plaintiff

petitioned for writ of habeas corpus. [Id. at 13]. The magistrate elevated his

case to a district judge, who elevated it to Superior Court. [Id.].

While waiting for hearing on his habeas petition, Plaintiff was led in

five-point restraints to inmate housing at the JCDC. An hour later he was

brought to medical for treatment for his injuries and given medication. The

meals at the JCDC were “the worst in his life.” Plaintiff was confined to a

small cell for 16 hours a day, which “seriously hurt” his mental health. [Id.].

On February 24, 2023, after 10 days of detention, Plaintiff appeared before

Judge Letts, who granted Plaintiff’s petition for habeas relief. Plaintiff was

2 Section 242 criminalizes the willful deprivation of civil rights based on alienage, color, or

race. It affords Plaintiff no relief here and will not be further addressed.

released a few hours later. [Id. at 14].

Plaintiff purports to state eighteen different causes of action, including

false arrest and imprisonment and violation of his rights under the Fourth,

Fifth, and Fourteenth Amendments. [Id. at 3, 7]. He claims to have suffered

mental and physical injury, including injury to his hand, wrist, and thumb. [Id.

at 15]. Plaintiff seeks monetary relief only. [Id. at 16].

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). 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 her 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).

IV. 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 by a “person” acting under

color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski,

599 U.S. 166, 143 S.Ct. 1444 (2023).

To the extent Plaintiff purports to challenge the issuance or validity of

the extradition warrant, these claims fail for the same reasons as those

claims did in Case No. -190. [See Case No. -190, Doc. 5 at 7-10]. The

Court, therefore, will dismiss Defendants Carr, Stein, Cooper, Kemp,

Williams, Byrd, Enotah District Attorney’s Office, 30th District Attorney Office,

43rd District Attorney Office, and Towns County Sheriff’s Office. Moreover,

Magistrate Judge Salinas transferred this matter here because Plaintiff did

not appear to challenge the issuance or validity of the extradition warrant but

rather challenges his arrest and the conditions of his confinement and the

JCDC. As such, without any surviving related claim, as discussed infra,

jurisdiction over claims related to the requisition demand for the extradition

of the Plaintiff more properly lies in Georgia.

As Plaintiff was previously advised, to establish liability under 42

U.S.C. § 1983, a plaintiff “must affirmatively show that the official charged

acted personally in the deprivation of [his] rights.” Williamson v. Stirling, 912

F.3d 154, 171 (4th Cir. 2018) (cleaned up); see Vinnedge v. Gibbs, 550 F.2d

926, 928 (4th Cir. 1977) (citation omitted). Plaintiff makes no allegations

against or particular to Defendants Marshall, Cochran, Buchanan, and Byrd.

As such, the Court will dismiss these Defendants on this ground as well.

Additionally, as for Plaintiff’s claims related to his February 15, 2023

arrest and subsequent 9-day detention, Plaintiff names only the U.S.

Marshals Service, the “Cherokee Tribal Police,” and the Jackson County

Sheriff’s Office as Defendants. These claims fail for several reasons.

Plaintiff has not alleged that any Sheriff’s Office policy or custom was

the moving force behind any constitutional violation. See Moore v. City of

Creedmoor, 345 N.C. 356, 366, 481 S.E.2d 14, 21 (1997). As such, he has

failed to state a claim against the Jackson County Sheriff’s Office.

To the extent Plaintiff seeks to state a claim against individual officials

for his allegedly unlawful arrest or subsequent conditions of confinement at

the JCDC, he must name these individuals as Defendants and show that

they acted personally in the deprivation of his rights, which he has not done.

See Stirling, 912 F.3d at 171.

Finally, the U.S. Marshals Service, the Cherokee Indian Police

Department, or any officials employed by these entities are not state actors

subject to liability under § 1983. Rich v. United States, 158 F.Supp.2d 619,

630 (D. Md. 2001) (regarding U.S. Marshal defendants); Reed v. Hyatt, No.

1:19-cv-00122-MR, 2020 WL 5899100, at *2 (W.D.N.C. Oct. 5, 2020)

(regarding EBCI employees). As such, even if Plaintiff had named such

officials individually as Defendants in this § 1983 action, they would be

dismissed.

Because none of Plaintiff’s federal constitutional claims survive initial

review, the Court declines to consider his numerous state law claims.

See Artis v. Dist. Of Columbia, 583 U.S. 71, 74 (2018) (When a district court

dismisses all claims independently qualifying for the exercise of federal

jurisdiction, it “ordinarily dismiss[es] as well all related state claims.”); see 28

U.S.C. § 1367(c)(3).

As such, the Court finds that Plaintiff’s Amended Complaint fails to

state a claim on which relief may be granted and, therefore, fails initial review

under § 1915(e)(2)(B). The Court is constrained, however, to allow Plaintiff

to amend his Complaint to state a claim should the facts allow for such

amendment.

V. CONCLUSION

In sum, Plaintiff’s Amended Complaint fails initial review under §

1915(e)(2)(B). The Court will allow Plaintiff thirty (30) days to amend his

complaint to address the deficiencies as stated herein, if the facts support

such amendment and if Plaintiff so chooses. Plaintiff is admonished that any

amended complaint will be subject to all timeliness and procedural

requirements and will supersede the instant Complaint. Piecemeal

amendment will not be permitted. Should Plaintiff fail to file an amended

complaint within 30 days of entry of this Order, the instant Complaint will be

dismissed without prejudice and without further notice to Plaintiff.

ORDER

IT IS, THEREFORE, ORDERED that the Amended Complaint fails

initial review under 28 U.S.C. § 1915(e)(2)(B) for Plaintiff’s failure to state a

claim for relief and shall be DISMISSED WITHOUT PREJUDICE in

accordance with the terms of this Order.

IT IS FURTHER ORDERED that all Defendants are hereby

DISMISSED

IT IS FURTHER ORDERED that Plaintiff shall have thirty (30) days in

which to file an amended complaint in accordance with the terms of this

Order. If Plaintiff fails to so amend the instant Complaint, the matter will be

dismissed without prejudice.

The Clerk is further directed to mail Plaintiff a blank 1983 form.

IT IS SO ORDERED.

Signed: December 31, 2025

Martifi Reidinger Ly,

Chief United States District Judge “lly

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