# Bailey

> District Court, W.D. North Carolina · January 2, 2026

URL: https://www.frixlaw.com/law-library/cases/11234955

## Case

- **Full name:** James Marlin Bailey v. Brian Kemp, et al.
- **Court:** District Court, W.D. North Carolina
- **Decided:** January 2, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11234955. Public record. Not legal advice.