ALLEN v. GOLDS GYM - BURLINGTON et al
| DERRICK ALLEN |
| GOLDS GYM - BURLINGTON, GOLDS GYM - CHAPEL HILL, CHAPEL HILL POLICE DEPARTMENT, BURLINGTON POLICE DEPARTMENT, DURHAM POLICE DEPARTMENT, MAYOR PAM HEMMINGER, MAURICE JONES, WESLEY BAKER, JAMES B. BUTLER, DAVID CHEEK, BEVERLY SMITH, MAYOR ELAINE O'NEIL, DIANA SCHREIBER, WANDA PAGE and SHERIFF C. BIRKHEAD |
| 1:2022cv00574 |
| July 22, 2022 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Civil Rights: Other |
| 28 U.S.C. ยง 1331 Fed. Question: Civil Rights Violation |
| Plaintiff |
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| Filing 6 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 8/19/2022 adopting the Magistrate Judge's Recommendation; that this action is DISMISSED pursuant to 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. (Sheets, Jamie) |
| CASE REFERRED to CHIEF JUDGE THOMAS D. SCHROEDER RE: RECOMMENDED RULING by MAGISTRATE JUDGE. (Engle, Anita) |
| Filing 5 Notice of Mailing Recommendation: Objections to R&R due by 8/8/2022. Objections to R&R for Pro Se due by 8/11/2022. (Sheets, Jamie) |
| Filing 4 Notice of Signed Pro Se Electronic Service Consent by DERRICK ALLEN 78DERRICKALLEN@GMAIL.COM. (Sheets, Jamie) |
| Filing 3 CIVIL COVER SHEET. (Sheets, Jamie) |
| Filing 2 COMPLAINT against All Defendants, filed by DERRICK ALLEN. (Attachments: #1 Email) (Sheets, Jamie) |
| Filing 1 APPLICATION to Proceed IFP by DERRICK ALLEN. (Sheets, Jamie) |
| Motions Referred to MAG/JUDGE L. PATRICK AULD RE: #1 APPLICATION to Proceed IFP. (Sheets, Jamie) |
| Case ASSIGNED to CHIEF JUDGE THOMAS D. SCHROEDER and MAG/JUDGE L. PATRICK AULD. (Sheets, Jamie) |
| TEXT RECOMMENDATION that the Court dismiss this action under 28 U.S.C. 1915(e)(2)(B) as frivolous and for failure to state a claim. First, #2 Complaint lacks any factual allegations showing that Defendants Golds Gym-Chapel Hill and Golds Gym-Burlington acted under color of state law so as to trigger potential civil liability for alleged violations of the Seventh, Eighth, and Fourteenth Amendments of the United States Constitution (as made actionable via 42 U.S.C. s 1983), arising from the revocation of Plaintiff's gym membership. Second, Defendants Chapel Hill Police Department, Burlington Police Department, and Durham Police Department do not constitute legal entities subject to suit. Third, to the extent the Court might construe the Cities of Chapel Hill, Burlington, and Durham as the real-parties-in-interest as to any Section 1983 claim brought against their respective police departments, #2 Complaint lacks any factual allegations showing that any custom or policy of any such City caused any alleged constitutional violation. Fourth, #2 Complaint lacks any factual allegations showing that any of the remaining Defendants (the Mayors of Chapel Hill, Burlington, and Durham, the Town Manager of Chapel Hill, the Town Clerk of Carrboro, the Interim City Manager and City Clerk of Burlington, two Durham City Clerks, and the Sheriff of Durham County) committed any act or omission that caused any alleged constitutional violation. Fifth, #2 Complaint relies entirely on conclusory allegations that unnamed police officers "ha[d Plaintiff] trespassed and [his gym] membership denied" (which also conflict with more particularized information in the e-mail attached to #2 Complaint from a Golds Gym managerial employee terminating Plaintiff's membership because of his conduct, including recently "cursing at" the managerial employee and previously "ignor[ing] or disrespect[ing]" other managerial employees). In connection with many prior actions, the Court repeatedly has advised Plaintiff of each of the foregoing requirements/prohibitions (i.e., the state-action requirement, police departments' lack of capacity to sue or be sued, the custom/policy requirement for claims against local governments, the prohibition on liability against high-ranking government officials based merely on their title/position (rather than their acts or omissions), and the prohibition against reliance on conclusory allegations. Plaintiff's persistence in filing frivolous federal actions supports the denial of future pauper applications under the discretionary authority of 28 U.S.C. 1915(a)(1), without consideration of the substance of his related complaints under the provisions of Section 1915(e)(2)(B). See Blakely v. Wards, 738 F.3d 607, 612 (4th Cir. 2013); see also id. at 619-22 (Wilkinson, J., concurring), 624 (Duncan, J., concurring). Issued by MAG/JUDGE L. PATRICK AULD on 07/22/2022. (AULD, L.) |
| TEXT ORDER terminating #1 Application to Proceed in District Court without Prepaying Fees or Costs, in light of the Text Recommendation of dismissal entered this day. Issued by MAG/JUDGE L. PATRICK AULD on 07/22/2022. (AULD, L.) |
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