ALLEN v. PICASSO PAWN
| DERRICK ALLEN |
| PICASSO PAWN, DURHAM POLICE DEPARTMENT, ELAINE O'NEAL, ASHLEY WYATT, CARLOS, WANDA PAGE, CITY OF DURHAM and DURHAM COUNTY |
| 1:2022cv00712 |
| August 29, 2022 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Civil Rights: Other |
| 28 U.S.C. § 1331 Fed. Question |
| Plaintiff |
Docket Report
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| Filing 9 USCA Pre-filing review case docketed re #7 Notice of Appeal Without Fee Payment filed by DERRICK ALLEN. USCA Case Manager: Ashley Brownlee. USCA Case Number 22-295. (Sheets, Jamie) |
| Filing 8 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re #7 Notice of Appeal Without Fee Payment. (Sheets, Jamie) |
| Filing 7 NOTICE OF APPEAL Without Fee Payment as to #6 Judgment, by DERRICK ALLEN. (Sheets, Jamie) |
| Filing 6 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 10/4/2022 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 9/20/2022. Objections to R&R for Pro Se due by 9/23/2022. (Sheets, Jamie) |
| TEXT ORDER terminating #1 Application for Leave 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 09/06/2022. (AULD, L.) |
| 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. In #2 Complaint, Plaintiff alleges that Defendants (a pawn shop and its manager, the City of Durham and its police department, mayor, city manager, and city clerk, and Durham County) violated 42 U.S.C. s 1982, 18 U.S.C. s 242 (the criminal counterpart to 42 U.S.C. s 1983), and the Eighth and Fourteenth Amendments (actionable only via Section 1983), because (A) he "visited [the] pawn [shop and] attempted to pawn two items, a fishing pole and tennis shoes," but the pawn shop's manager "denied [Plaintiff's] business and referred to [a] note in their system," (B) "[the] pawn [shop] refused to conduct business with [Palintiff] due to... influence(s) of Durham Police Department," and (C) "the City of Durham, Durham County, the mayor of Durham, the city clerk and the city manager of Durham can [be sued]." Those allegations fail as a matter of law in an obvious manner that renders this action frivolous for a host of reasons. First, #2 Complaint lacks any factual allegations to support an inference that the pawn shop and its manager acted under color of state law (so as to trigger potential civil liability under Section 1983) or that they refused to do business with Plaintiff based on his race (so as to trigger potential civil liability under Section 1982). Second, the refusal to do business with Plaintiff neither amounts to cruel and unusual punishment or any other form of Eighth Amendment violation nor denies Plaintiff the equal protection of the laws or any other protection guaranteed by the Fourteenth Amendment. Third, police departments do not constitute legal entities subject to suit. Fourth, #2 Complaint lacks any factual allegations showing that any custom or policy of Durham County or the City of Durham caused any alleged constitutional violation. Fifth, #2 Complaint lacks any factual allegations showing that any of the remaining defendants (the mayor, city manager, and city clerk of Durham) committed any act or omission that caused any alleged constitutional violation. Sixth, #2 Complaint relies entirely on conclusory allegations that unnamed police officers caused the pawn shop to refuse to do business with Plaintiff. Seventh, Plaintiff cannot pursue a claim under Section 242. 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, the frivolousness of his attempts to convert routine consumer disputes into federal constitutional claims, municipal departments' lack of capacity to sue or be sued, the custom/policy requirement for claims against local governmental entities, the prohibition on liability against high-ranking government officials based merely on their title/position (rather than their acts or omissions), the prohibition against reliance on conclusory allegations, and the unavailability of Section 242 to private plaintiffs). 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 09/06/2022. (AULD, L.) |
| 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) |
| 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. (Sheets, Jamie) |
| Filing 1 APPLICATION to Proceed IFP by DERRICK ALLEN. (Sheets, Jamie) |
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