Ray

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:26-cv-00078-MR

JAMES ALEXANDER RAY, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

) ON INITIAL REVIEW

)

BREVARD POLICE DEPARTMENT, )

et al., )

)

Defendants. )

________________________________ )

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

Complaint, [Doc. 1], filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)

and 1915A. Plaintiff is proceeding in forma pauperis. [Docs. 2, 5].

I. BACKGROUND

Pro se Plaintiff James Alexander Ray, (“Plaintiff”) is a prisoner of the

State of North Carolina currently incarcerated at Alexander Correctional

Institution in Taylorsville, North Carolina. On March 13, 2026, he filed this

action pursuant to 42 U.S.C. § 1983 against Defendants Brevard Police

Department, Transylvania County Jail, District Attorney Elizabeth Dierauf,

and the “People of North Carolina.” [Doc. 1]. Plaintiff purports to sue

Defendants Dierauf and the People of North Carolina in their individual and

official capacities. [Id. at 3].

Plaintiff alleges, in pertinent part, as follows. Plaintiff was arrested by

the Brevard Police Department on July 20, 2017, without probable cause.

[Id. at 12]. On August 14, 2017, “the people of North Carolina grand jury”

indicted the Plaintiff on charges of robbery with a dangerous weapon and

conspiracy to commit robbery with a dangerous weapon without allowing

Plaintiff to testify against witnesses Detective Godman and Aaron Thompson

of the Brevard Police Department. [Id. at 12, 15]. Thereafter, “they” denied

him a probable cause hearing on a first-degree murder charge and the

robbery charges. [Id.]. The Transylvania County Jail unlawfully detained the

Plaintiff for two years. [Id.]. Defendant Bierauf committed prosecutorial

misconduct by allowing the denial of Plaintiff’s right to testify at the grand jury

proceeding. [Id. at 13].

Plaintiff claims the violation of numerous rights under the U.S.

Constitution, the “North Carolina Constitution penal codes,” and various

other provisions. [Id. at 3]. Plaintiff alleges numerous injuries related to his

alleged unlawful arrest and false imprisonment, as well as “[d]efamation of

character, threat, coercion, harassment, [and] emotional mental distress.”

[Id. at 5]. Among other things, Plaintiff wants his conviction vacated, to be

released from custody, and monetary relief. [Id.]. Plaintiff also asks for

appointment of counsel. [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

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). Plaintiff’s Complaint fails initial review

for several reasons.

Neither a jail nor a police department is a “person” subject to suit under

§ 1983. See Brooks v. Pembroke Jail, 722 F.Supp. 1294, 1301 (E.D.N.C.

1989); Wilkerson v. Chapel Hill Police Dept., No. 1:09CV60, 2009 WL

1505614, at *1 (M.D.N.C. May 27, 2009). Plaintiff, therefore, has failed to

state a claim against these Defendants and the Court will dismiss them.

Moreover, prosecutors are immune from suit under the doctrine of

prosecutorial immunity, and “the People of North Carolina,” especially as

members of a grand jury, are not subject to suit under § 1983. Imbler v.

Pachtman, 424 U.S. 409, 419, 423, n.20 (1976). Furthermore, there is no

right, constitutional or otherwise, for the subject of a grand jury proceeding

to testify or confront witnesses. See State v. Jones, 354 S.E.2d 251, 258

(N.C. Ct. App. 1987) (“[A] defendant is not allowed to cross-examine

witnesses before a grand jury.”). As such, Plaintiff has failed to state a claim

against Defendant Dierauf or the People of North Carolina. The Court will

dismiss these Defendants.

Next, it appears here that Plaintiff’s claims are barred by Heck v.

Humphrey, 512 U.S. 477 (1994). 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, given the nature

of the allegations in the Complaint, a judgment in Plaintiff’s favor would

necessarily imply the invalidity of any conviction or sentence in the

underlying criminal matter. Plaintiff, however, has not alleged that a

conviction has been reversed or otherwise invalidated. Therefore, his

Complaint appears to be barred by Heck.

Even if Plaintiff’s claims are not barred by Heck, it appears that they

may be barred by the applicable statute of limitations in any event. See N.C.

Gen. Stat. § 1-52(16); Nat’l Adv. Co. v. City of Raleigh, 947 F.2d 1158, 1162

n.2 (4th Cir. 1991).

The body of the Complaint contains allegations against individuals who

are not named as defendants in the caption as required by Rule 10(a) of the

Federal Rules of Civil Procedure. Fed. R. Civ. P. 10(a) (“The title of the

complaint must name all the parties[.]”); Myles v. United States, 416 F.3d

551 (7th Cir. 2005) (“[T]o make someone a party the plaintiff must specify

him in the caption and arrange for service of process.”); Perez v. Humphries,

No. 3:18-cv-107-GCM, 2018 WL 4705560, at *1 (W.D.N.C. Oct. 1, 2018) (“A

plaintiff’s failure to name a defendant in the caption of a Complaint renders

any action against the purported defendant a legal nullity.”). The allegations

directed at individuals not named as Defendants are therefore dismissed

without prejudice.

Finally, to the extent that the Plaintiff seeks relief under North Carolina

law, the Court declines to exercise supplemental jurisdiction, as no federal

claim has passed initial review. 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.”); 28 U.S.C. § 1367(c)(3). Accordingly, those claims are

dismissed without prejudice.

IV. APPOINTMENT OF COUNSEL

There is no absolute right to the appointment of counsel in civil actions

such as this one. Therefore, a plaintiff must present “exceptional

circumstances” in order to require the Court to seek the assistance of a

private attorney for a plaintiff who is unable to afford counsel. Miller v.

Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The existence of exceptional

circumstances in each case “hinges on characteristics of the claim and the

litigant.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). To make

this determination, a court must collectively assess “(1) whether the plaintiff

asserts a claim that is not frivolous, (2) the difficulty of the claim, and (3)

whether the plaintiff can present the claim considering the skill required to do

so and the plaintiff’s individual abilities.” Jenkins v. Woodard, 109 F.4th 242,

248 (4th Cir. 2024) (citing Brock v. City of Richmond, 983 F.2d 1055, 1055

(4th Cir. 1993) (per curiam)). “The district court’s failure to make these

assessments is legal error.” Id. Where a pro se plaintiff presents a colorable

claim but “lacks the capacity to present it” in light of the objective complexity

of the claim and the plaintiff’s subjective abilities, the case presents

“exceptional circumstances.” Id. at 247 (quoting Whisenant, 739 F.2d at

162).

In this case, however, the Plaintiff has not yet even demonstrated that

this claim will pass initial review, much less that it has potential merit. Until

that has been shown, the Court cannot assess the complexity of the claim or

what skill may be required to prosecute the same. Therefore, at this stage,

the Plaintiff has failed to meet any of the requirements for establishing

exceptional circumstances necessitating the appointment of counsel.

V. CONCLUSION

In sum, Plaintiff’s claims will be dismissed on initial review for Plaintiff’s

failure to state a claim for relief. The Court will allow Plaintiff thirty (30) days

to amend his Complaint, if he so chooses, to show that Heck does not apply,

that his Complaint is not barred by the applicable limitations period(s), and

to otherwise properly state a claim for relief. Should Plaintiff fail to timely

amend his Complaint in accordance with the terms of this Order, this action

will be dismissed without prejudice and without further notice to Plaintiff.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30)

days in which to amend the Complaint in accordance with the terms of this

Order. If Plaintiff fails to amend the Complaint in accordance with this Order

and within the time limit set by the Court, this action will be dismissed without

prejudice and without further notice to Plaintiff.

IT IS FURTHER ORDERED that Plaintiff's Complaint will be

DISMISSED on initial review for Plaintiffs failure to state a claim for relief

and that Plaintiffs request for counsel therein is DENIED.

IT IS FURTHER ORDERED that all Defendants are hereby

DISMISSED as Defendants in this matter.

The Clerk is respectfully instructed to mail Plaintiff a blank Section

1983 form.

IT IS SO ORDERED. Signed: March 18, 2026

Martifi Reidinger ee

Chief United States District Judge AS