Pollard v. Pollard , 325 F. App'x 270 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1402
BARBARA POLLARD,
Plaintiff - Appellant,
v.
MICHELLE POLLARD, in her individual capacity; LEE MOORE, in
his individual and official capacity; RICK FISHER, in his
individual and official capacity; MAC MANNING, in his
official capacity as Sheriff of Pitt County,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (4:07-cv-00109-BR)
Submitted: March 31, 2009 Decided: April 27, 2009
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David C. Sutton, SUTTON LAW OFFICES, P.A., Greenville, North
Carolina, for Appellant. Scott C. Hart, SUMRELL, SUGG,
CARMICHAEL, HICKS & HART, P.A., New Bern, North Carolina;
William L. Hill, Torin L. Fury, FRAZIER, HILL & FURY, RLLP,
Greensboro, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barbara Pollard (“Pollard”), Administratrix of the
estate of her son, Stacey Pollard (“Stacey”), filed a 42 U.S.C.
§ 1983 (2000) action and state wrongful death action against
Michelle Pollard (“Michelle”), Lieutenant with Pitt County
Sheriff’s Office and Stacey’s wife, and other members of the
Pitt County Sheriff’s Office. Pollard posited a denial of
access to the courts claim, alleging a police cover-up
surrounding her son’s death. The district court granted
Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss the
§ 1983 action and declined to entertain supplemental
jurisdiction over the state law claim. The district court
further denied Pollard’s motion to file a second amended
complaint in which she sought to provide more factual
allegations of the police cover-up. Pollard now appeals the
district court’s dismissal of her § 1983 complaint and the
denial of her motion to amend.
This court reviews de novo a district court’s Fed. R.
Civ. P. 12(b)(6) dismissal for failure to state a claim. Mayes
v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). “The purpose of
a Rule 12(b)(6) motion is to test the sufficiency of a
complaint . . . .” Edwards v. City of Goldsboro, 178 F.3d 231,
243 (4th Cir. 1999). In ruling on a 12(b)(6) motion, all well-
pleaded allegations in the complaint are to be taken as true and
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all reasonable factual inferences are to be drawn in the
plaintiff’s favor. Id. at 244. Although a complaint need not
contain detailed allegations, the facts alleged must be enough
to raise a right to relief above the speculative level. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007). The
complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Id. at 1974.
On appeal, Pollard argues that the district court
erred in dismissing her § 1983 complaint and in denying her
leave to file a second amended complaint on the ground of
futility. The gravamen of her appeal is that her § 1983 denial
of access to the courts claim based on a pervasive police cover-
up does not require that the claim be first litigated in state
court.
It is well established that citizens have a right of
access to the courts. See Christopher v. Harbury, 536 U.S. 403,
415 n.12 (2002). The right not only protects the ability to get
into courts, but also ensures that such access be “adequate,
effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822
(1977). The denial of meaningful access to the courts is
established where a party engages in pre-filing actions which
effectively cover up evidence and actually render any state
court remedies ineffective. Swekel v. City of River Rouge, 119
F.3d 1259, 1262 (6th Cir. 1997). However, a “plaintiff cannot
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merely guess that a state court remedy will be ineffective
because of a defendant’s actions.” Id. at 1264. To prevail on
her claims, a plaintiff must demonstrate that the defendants’
actions foreclosed her from filing suit in state court or
rendered ineffective any state court remedy she previously may
have had. Id. at 1263-64.
In this case, Pollard’s timely-filed wrongful death
action is pending in state court and therefore she cannot
credibly assert that Defendants’ actions foreclosed her ability
to file suit in state court. To the extent Pollard argues that
the police covered up proof and delayed her own investigation,
thereby rendering any state court remedy ineffective, she has
not presented evidence that the state court could not adequately
address these problems. Swekel, 119 F.3d at 1264.
Pollard also argues that the district court erred in
denying her motion for leave to file a second amended complaint.
While a district court’s denial of a motion for leave to amend a
complaint is generally reviewed for abuse of discretion,
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.
2008), because the district court determined that the amended
complaint would not survive a motion to dismiss, that legal
conclusion is reviewed de novo. HCMF Corp. v. Allen, 238 F.3d
273, 277 n.2 (4th Cir. 2001). In her second amended complaint,
Pollard does nothing more than allege additional facts
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implicating the officers in the cover-up. Because the amended
complaint does not alter the disposition of her case, we find
the district court properly denied the motion. See Perkins v.
United States, 55 F.3d 910, 917 (4th Cir. 1995) (amendment is
futile if the amended claim would fail to survive motion to
dismiss).
Accordingly, we affirm the district court’s order
dismissing Pollard’s § 1983 action and denying her motion to
file a second amended complaint. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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