Opinion
No. 5:19-CV-302-FL
10-02-2020
DUSHAWN WILLIAMS EL and ANISA WILLIAMS EL, Plaintiffs, v. CITY OF FAYETTEVILLE, Defendant.
MEMORANDUM & RECOMMENDATION
This pro se case is before the court for continued frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable Louise W. Flanagan, United States District Judge. For the reasons set forth below, the court RECOMMENDS that Plaintiffs' amended complaint be dismissed.
DISCUSSION
I. Background
Plaintiffs applied for in forma pauperis status and filed their original complaint on July 22, 2019, naming certain individuals and entities as defendants. (IFP Application [DE #1]; Prop. Compl. [DE #1-1].) On November 14, 2019, the court issued an order of deficiency which directed Plaintiffs to make certain corrections to their IFP application and complaint or risk dismissal. (Deficiency Order [DE #4].) Plaintiffs made subsequent filings [DE ##5-10], and, on February 2, 2020, the undersigned granted Plaintiffs IFP status and recommended that Plaintiffs' claims be dismissed. (Order and M&R [DE #11].) Plaintiffs subsequently filed objections to the M&R (Objs. [DE #13]) and moved to amend their complaint (Mot. Amend Compl. [DE #14]; Prop. Am. Compl. [DE #14-1]).
The court construed Plaintiffs' objections to the M&R as a motion for leave to amend their complaint; adopted the M&R and dismissed Plaintiffs' original complaint; granted Plaintiffs' motion for leave to amend their complaint and directed the clerk to file the proposed amended complaint; and recommitted the matter to the undersigned for frivolity review of the amended complaint. (Order dated March 26, 2020 [DE #15] at 1-2.)
II. Standard for Frivolity Review
Notwithstanding the prior determination that Plaintiffs are entitled to in forma pauperis status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). 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. In making the "inherently elastic" frivolity determination, Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004), the court may "apply common sense," Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of suit as frivolous where complaint "failed to contain any factual allegations tending to support [plaintiff's] bare assertion"). The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
III. Plaintiffs' Claims
In their amended complaint, Plaintiffs seek to sue the City of Fayetteville ("City") under 42 U.S.C. § 1983 for alleged constitutional violations by officers of its municipal police department. (Am. Compl. [DE #16] at 1-6.) Plaintiffs also seek to sue the City for state-law torts of defamation and intentional infliction of emotional distress, invoking the court's supplemental jurisdiction under 28 U.S.C. § 1367. (Am. Compl. at 7-9.) For the reasons explained below, the undersigned recommends that Plaintiffs' claims be dismissed as frivolous or for failure to state a claim.
A. Section 1983 Claims
To establish liability against a local government under § 1983, a plaintiff must show that the alleged constitutional injury is attributable to an official policy, procedure, or custom of the municipality. Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978). Plaintiff's amended complaint fails to allege that any constitutional violations were taken in furtherance of a city-wide policy or custom. See Anderson v. Croley, No. 5:18-CT-3020-FL, 2019 WL 2864752, at *4 (E.D.N.C. July 2, 2019) (dismissing Monell claim where amended complaint failed to allege violation of county-wide policy or custom). While Plaintiffs allege that employees of the City's municipal police department violated their Fourth and Fourteenth Amendment rights on particular dates, "[i]t is well settled that 'isolated incidents' of unconstitutional conduct by subordinate employees are not sufficient to establish a custom or practice for § 1983 purposes." Lytle v. Doyle, 326 F.3d 463, 473 (4th Cir. 2003). Accordingly, Plaintiffs' Section 1983 claims should be dismissed.
B. State-Law claims
As Plaintiffs' § 1983 claims fail, there are no federal claims to which Plaintiffs' remaining state-law claims may attach. See 28 U.S.C. § 1367 (stating that a court may decline to exercise supplemental jurisdiction if "the district court has dismissed all claims over which it has original jurisdiction"). Having considered principles of comity, convenience, fairness and judicial economy, the undersigned recommends that the court decline jurisdiction over the remaining state-law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiffs' Section 1983 claims in their amended complaint be dismissed as frivolous or for failure to state a claim and that the court decline to exercise supplemental jurisdiction over Plaintiffs' remaining state-law tort claims.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until October 19, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her 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)(l); 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. Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline 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, a party's failure to file written objections by the foregoing deadline may bar the party 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).
This 2nd day of October 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge