SIMPSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAQUATE SIMPSON, )

)

Plaintiff, )

)

v. ) 1:25CV766

)

DET. MAURICE MCPHATTER, et al., )

)

Defendant(s). )

ORDER AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, a federal prisoner convicted in the Eastern District of Virginia following a

drug conspiracy investigation that occurred partly in the Middle District of North Carolina,

submitted a civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), together with an

application to proceed in forma pauperis. It contained allegations related to the

investigation that led to his convictions in the Eastern District of Virginia. The Court later

entered an Order [Doc. #4] striking that Complaint based on Plaintiff’s failure to use the

proper forms and allowing him to file a new complaint. The Court also pointed out multiple

potential issues with the Complaint that Plaintiff should consider if he chose to make such

a filing. Petitioner did file a Corrected Complaint [Doc. #6 and 6-1] and supporting

Memorandum [Doc. #7]. Plaintiff also filed an updated Application [Doc. #5] seeking to

proceed in forma pauperis and a Supplement [Doc. #8] to that Application. In Plaintiff’s

Corrected Complaint, he now seeks to sue just two Defendants, Detective Maurice

McPhatter and the City of Greensboro, under § 1983. He seeks damages and declaratory

relief.

Because Plaintiff is “a prisoner seek[ing] redress from a governmental entity or

officer or employee of a governmental entity,” this Court has an obligation to “review” this

Complaint. 28 U.S.C. § 1915A(a). “On review, the court shall . . . dismiss the complaint,

or any portion of the complaint, if [it] – (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A(b).

Applicable here, a plaintiff “fails to state a claim upon which relief may be granted,”

28 U.S.C. § 1915A(b)(1), when the complaint does not “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (emphasis added) (internal citations omitted) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at

557). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. In other words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” Id.1

For the reasons that follow, the Corrected Complaint fails to state a claim on which

relief may be granted.

The Corrected Complaint alleges that Defendant McPhatter is a detective with the

Greensboro Police Department and that the Defendant City of Greensboro is responsible

for the policies, training, supervision, and evidence retention of the Greensboro Police

Department. (Corrected Complaint [Doc. #6-1] at 2.) It claims that in July of 2017, an

agent from the State Bureau of Investigation obtained a tracking device order to allow

collection of GPS data from a particular vehicle. (Id. at 4.) The order was only for 45 days

and required an inventory return. (Id. at 1.) However, the return was filed “well beyond

45 days.” (Id.) In August and November of 2017, unidentified investigators then obtained

an order allowing them to collect GPS or cell-site location data from a cellular telephone

associated with Plaintiff. (Id. at 4.) The Corrected Complaint alleges that from 2017 until

1Although the Supreme Court has reiterated that “[a] document filed pro se is to be liberally construed and

a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation

marks omitted), the United States Court of Appeals for the Fourth Circuit has “not read Erickson to

undermine Twombly’s requirement that a pleading contain more than labels and conclusions,” Giarratano

v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (internal quotation marks omitted) (applying Twombly

standard in dismissing pro se complaint); accord Atherton v. District of Columbia Off. of Mayor, 567 F.3d

672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’ that permits the

court to infer ‘more than the mere possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and Iqbal,

556 U.S. at 697, respectively)).

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sometime in at least 2019, the Greensboro Police Department maintained a record of the

GPS data collected pursuant to the tracking orders. (Id. at 3.) However, the Corrected

Complaint claims that between 2019 and 2022, “[d]espite notice of materiality of location

evidence, GPD/CITY migrated or decommissioned the legacy system without preserving

Plaintiff’s GPS data, and without implementing a litigation hold or arranging export/vendor

retrieval.” (Id.) On August 9, 2022, as part of Plaintiff’s criminal trial in the Eastern

District of Virginia, Plaintiff’s defense requested the GPS data associated with the tracking

orders. (Id. at 9.) However, in a hearing on August 26, 2022, the Government stated that

the GPS data related to the vehicle tracking order had been lost due to the retirement of a

legacy computer system, but that all other requested data had been provided to the defense.

(Id.) See Case. No. 2:20-cr-00090-JAG-LRL-1 (E.D. Va.) (Doc. #573, Motion to Compel

Trans. at 6). Certain cellular telephone data was used during Plaintiff’s case in Virginia to

place Plaintiff and other participants in the drug conspiracy in the same location at certain

times. (Corrected Complaint [Doc. #6-1] at 2.) Plaintiff alleges that the lost GPS tracking

data could potentially have been useful in his defense to cross check the telephone data.

(Id.) Plaintiff requests nominal and compensatory damages, punitive damages against

Defendant McPhatter, and declaratory relief concerning the practices of the City of

Greensboro.

Regarding Defendant McPhatter, the Corrected Complaint is devoid of any specific

factual allegation against him other than that he is a detective with the Greensboro Police

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Department. It contains no allegations connecting him to the warrant that collected the lost

GPS data (although it does specifically allege that it was obtained by an officer with an

entirely different agency), the collection of that data, the preservation of that data, or the

destruction of that data other than to state in conclusory fashion that he failed to preserve

the data or caused its destruction. (Corrected Complaint [Doc. #6] § IV(D); [Doc. #6-1 at

9.) It contains absolutely no facts to support that assertion. Therefore, it fails to state any

claim against Defendant McPhatter.

As for the City of Greensboro, the Corrected Complaint contains more allegations

than against McPhatter, but the allegations still remain insufficient to state any claim for

relief. Plaintiff seeks to hold the City of Greensboro liable based on the alleged destruction

of potentially exculpatory GPS evidence. In order to do so, he must show that the

destruction occurred in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (a

showing of bad faith is required to demonstrate a constitutional violation where evidence

that is only potentially exculpatory is destroyed). Further, concerning municipal liability

under § 1983 for a city employing another defendant,

“[a] municipality cannot be held liable solely because it employs a

tortfeasor—or, in other words, a municipality cannot be held liable under

§ 1983 on a respondeat superior theory.” Monell v. Department of Soc.

Servs., 436 U.S. 658, 691 (1978) (emphasis in original). “Only in cases

where the municipality causes the deprivation ‘through an official policy or

custom’ will liability attach.” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.

2003) (quoting Carter v. Morris, 164 F.3d 215, 218 (4th Cir. 1999)).

“Because section 1983 was not designed to impose municipal liability under

the doctrine of respondeat superior, the ‘official policy’ requirement was

‘intended to distinguish acts of the municipality from acts of employees of

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the municipality, and thereby to make clear that municipal liability is limited

to action for which the municipality is actually responsible.’” Riddick v.

School Bd. of Portsmouth, 238 F.3d 518, 523 (4th Cir. 2000) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)). “To state a cause

of action against a municipality, a section 1983 plaintiff must plead (1) the

existence of an official policy or custom; (2) that the policy or custom is

fairly attributable to the municipality; and (3) that the policy or custom

proximately caused the deprivation of a constitutional right.” Pettitford v.

City of Greensboro, 556 F.Supp.2d 512, 530 (M.D.N.C. 2008).

Roseboro v. Winston-Salem/Forysth County School Board of Education, No. 1:14CV455

2014 WL 5304981, at *4 (M.D.N.C. Oct. 15, 2014) (footnote omitted), recommendation

adopted, No. 1:14CV455 (M.D.N.C. Dec. 9, 2014).

The Complaint does attempt to allege bad faith by McPhatter or other employees of

the City, but it fails. The first alleged indicator of bad faith listed in the Corrected

Complaint is “actual notice of materiality during active litigation and specific requests for

original export formats.” (Corrected Complaint [Doc. #6-1] at 7.) However, Plaintiff

makes no factual allegations demonstrating that Defendant McPhatter or any other

employee of the City of Greensboro had any notice of materiality, active litigation, or any

request for the data prior to its destruction. The only litigation request mentioned in the

Corrected Complaint is Plaintiff’s federal criminal proceedings in Virginia where his

defense requested the data from the federal government in August of 2022, or

approximately five years after the data was collected, only to be told a few days later that

the data was gone. The fact that Plaintiff’s defense requested the data after it was lost does

not somehow show bad faith at the time of the earlier loss.

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The next alleged indicator of bad faith is that the decommissioning of the system

holding the data occurred without any litigation hold or data escrow or export. (Id.) As an

initial matter, it is not clear that this is entirely accurate. All that can be said is that any

hold either did not include the data requested by the Plaintiff in August of 2022 or had

expired by that time. In any event, the mere lack of any hold without any alleged facts

supporting notice to the City that the data should be preserved still does not indicate any

sort of bad faith on the part of the City. At most, it might establish mere negligence, which

is not sufficient. See California v. Trombetta, 467 U.S. 479, 487-88 (1984) (destruction of

evidence in accordance with a party’s standard practices does not indicate bad faith);

United States v. Thompson, 584 F. App’x 101, 103-04 (4th Cir. 2014) (negligence does

not equate to bad faith).

The third claimed sign of bad faith is the allegedly late return of the July 5, 2017

tracking order. (Corrected Complaint [Doc. #6-1] at 7.) This fails for multiple reasons.

First, the tracking order, which is in the record of Plaintiff’s criminal case in Virginia, did

not contain a 45-day limit for any return. It states only that the tracking device was allowed

to be active for 45 days and that the authorities were to “execute this order before the time

of expiration and [sic] indicated on this application and make due return to the Clerk of the

issuing Court.” Case. No. 2:20-cr-00090-JAG-LRL-1, (Doc. #359-1, Motion to Suppress,

Ex. 1A) (E.D. Va.). The return was made on April 12, 2018. Id. It could be debatable

whether or not this is a “due return,” but it did not violate any clear limit in the order

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because no such limit existed. Second, the order was both procured and returned by an

agent of the State Bureau of Investigation. There is no allegation that McPhatter or any

employee of the City of Greensboro had any connection to the order, its execution, or its

return. Finally, even if the date of the return could be considered “late” in some sense of

the term, the return had nothing to do with Defendants or the loss of the GPS data at some

later point in time. In the end, the date of the return means nothing as far as showing bad

faith related to the failed preservation of the data.

The fourth factor listed is the loss of the GPS data. (Corrected Complaint [Doc. #6-

1] at 7-8.) The fact that the data was lost says nothing concerning the circumstances of the

loss or whether it occurred as a result of bad faith by the Defendants. Including it in the

list of factors supporting bad faith is nonsensical.

Finally, the Corrected Complaint claims “material contradictions in key warrant

affidavit assertions that were not corrected at suppression” as the final factor indicting bad

faith. (Id. at 7.) This is an apparent reference to an alleged contradiction between a

statement in the tracking warrant application that Plaintiff had trafficked 260 kilograms of

cocaine in a year and a statement by a witness to federal officers that Plaintiff had only

ever received a total of 20 to 25 kilograms. Plaintiff raised this in his criminal case in a

motion to reconsider the denial of an earlier motion to suppress GPS evidence. Case. No.

2:20-cr-00090-JAG-LRL-1 (E.D.Va.) (Doc. #467, Request to Reconsider). The court in

the Eastern District of Virginia denied the motion for reconsideration on the basis that even

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if the issuing judge had known of the witness statement, the difference in the amount of

cocaine involved was not material to any finding of probable cause for the tracking order

because Plaintiff was a large scale drug dealer in either event. Id. (Doc. #483, Order).

Based on this, any contradictions were immaterial, not material as Plaintiff claims and, in

any event, are still not linked to Defendants or to anyone connected with failing years later

to preserve the data which was collected under the warrant.

In the end, the Corrected Complaint contains no factual allegations sufficient to

support any finding of bad faith on the part of Defendants regarding the loss of data. The

examples it lists are either not connected to Defendants, not connected to the preservation

of data, and/or do not demonstrate bad faith. The Corrected Complaint does not contain

facts showing that Defendants or anyone connected to the City realized that the data being

lost was potentially exculpatory to Plaintiff at the time it was lost. Therefore, the Corrected

Complaint is not sufficient to state any claim based on Youngblood and it should be

dismissed. See Yarris v. County of Delaware, 465 F.3d 129, 142-43 (citing Youngblood

for the proposition that officers must know of the exculpatory value of evidence at the time

of its destruction for a finding of bad faith and then finding bad faith where officers

allegedly hid biological evidence in a bag under a detectives desk, allowing it to rot).1

2 The Court notes that Plaintiff is free to file a new Complaint, with additional factual allegations if he is

able to address these issues, for separate review and screening. However, the Court also notes that Plaintiff

raised the same or similar claims in his criminal prosecution, as discussed above. See United States v.

Simpson, No. 2:20-cr-00090-JAG-LRL-1 (E.D. Va.). While Plaintiff in the present case states that his

“relief is tailored to avoid any challenge to the conviction,” (Pl’s Mem. at 5), he also contends that the loss

of the GPS data impaired his ability to challenge the integrity of the investigation, and that the lost GPS

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As a result, Plaintiff’s request to proceed in forma pauperis should not be

countenanced, with the exception that in forma pauperis status shall be granted for the sole

purpose of entering this Order and Recommendation.

Plaintiff has submitted the Complaint for filing, however, and, notwithstanding the

preceding determination, § 1915(b)(1) requires that he make an initial payment of $79.67.

Failure to comply with this Order will lead to dismissal of the Complaint.

IT IS THEREFORE ORDERED that in forma pauperis status be granted for the

sole purpose of entering this Order and Recommendation.

IT IS FURTHER ORDERED that within twenty (20) days from the date of this

Order Plaintiff make an initial filing fee payment of $79.67.

IT IS FURTHER ORDERED that Plaintiff’s trust officer shall be directed to pay to

the Clerk of this Court 20% of all deposits to his account starting with the month of August

data would have been material to rebut the prosecution’s “heavy reliance” on phone location analytics “to

place participants together and to corroborate meetings.” (Corrected Compl. at 3, 5). By challenging the

evidence presented in his criminal prosecution, Plaintiff’s claims here would at least potentially call into

question Plaintiff’s convictions relying on that evidence. As the Court previously noted in the prior Order

in this case, Plaintiff cannot bring a § 1983 suit to challenge or invalidate previous criminal convictions.

Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). The application of Heck does not turn simply on the

nature of the relief Plaintiff requests, but whether or not his success on his claims “would necessarily

demonstrate the invalidity of confinement.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Thus, to the

extent that his present claims are now attempts to invalidate the convictions using a civil § 1983 suit, the

claims could be barred by Heck. See Skinner v. Switzer, 562 U.S. 521 (2011) (“[P]arties asserting Brady

violations postconviction generally do seek a judgment qualifying them for immediate or speedier release

from imprisonment.... Accordingly, Brady claims have ranked within the traditional core of habeas corpus

and outside the province of § 1983.”) (internal citations and quotations omitted). Therefore, if Plaintiff

chooses to file a new Complaint, he should only assert claims that would not impact the validity of his

convictions. The Court can consider that issue further if Plaintiff files a new Complaint with sufficient

factual allegations.

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of 2026, and thereafter each time that the amount in the account exceeds $10.00 until the

$350.00 filing fee has been paid.

IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C.

§ 1915A for failing to state a claim upon which relief may be granted.

This, the 10th day of August, 2026.

j : Yabeth Peake

nited States Magistrate Judge

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