ALLEN v. O'NEAL
| DERRICK ALLEN |
| ELAINE O'NEAL, ASHLEY WYATT, WANDA PAGE, AUTO ACOUSTICS, STAN ROBERTS, DURHAM POLICE DEPARTMENT, DURHAM COUNTY SHERIFF DEPARTMENT and OFFICER MIDGET |
| 1:2022cv00751 |
| September 12, 2022 |
| US District Court for the Middle District of North Carolina |
| L PATRICK AULD |
| THOMAS D SCHROEDER |
| Civil Rights: Other |
| 42 U.S.C. ยง 1983 Civil Rights Act |
| Plaintiff |
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| Filing 6 JUDGMENT signed by CHIEF JUDGE THOMAS D. SCHROEDER on 10/19/2022 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 10/6/2022. Objections to R&R for Pro Se due by 10/11/2022. (Sheets, Jamie) |
| 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 09/21/2022. (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 business and its owner or employee, the police department, mayor, city manager, and deputy city clerk of Durham, the Durham County Sheriff's Office, and a Durham County Sheriff's deputy whose relative works at the business) violated 42 U.S.C. ss 1982 and 1983, 18 U.S.C. s 242 (the criminal counterpart to 42 U.S.C. s 1983), the First, Fourth, Seventh, Eighth, and Fourteenth Amendments to the United States Constitution (actionable only via Section 1983), and N.C. Gen. Stat. s 14-159.12, because (A) a disagreement with employees of the business resulted in a refusal by the business to allow Plaintiff on the business property and (B) Plaintiff believes an unaccounted for key fob for a remote locking system installed by the business has been used to unlock his vehicle. 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 business and its owner/employee 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, neither the refusal to do business with Plaintiff nor any failure to provide proper service regarding the key fob violates any of the constitutional provisions invoked by Plaintiff. Third, police departments do not constitute legal entities subject to suit. Fourth, #2 Complaint lacks any factual allegations showing that any Durham official committed any act or omission that caused any alleged constitutional violation. Fifth, #2 Complaint lacks any factual allegations showing that a custom or policy of the Durham County Sheriff's Office caused any alleged violation of Plaintiff's federal rights. Sixth, #2 Complaint relies entirely on conclusory allegations that the Durham County Sheriff's deputy played any role in any of the alleged events. Seventh, Plaintiff cannot pursue a claim under Section 242. Eighth, Section 14-159.12 establishes a state criminal prohibition for trespassing, not a civil cause of action for persons trespassed from business premises. In connection with many prior actions, the Court repeatedly has advised Plaintiff of nearly all 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 prohibition on liability against high-ranking government officials based merely on their title/position (rather than their acts or omissions), the custom/policy requirement for claims against local governmental entities, 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 09/21/2022. (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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