Sanchez v. Tolson , 128 F. App'x 983 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2170
ALFREDO LEON SANCHEZ,
Plaintiff - Appellant,
versus
E. NORRIS TOLSON; RONALD G. STARLING; DENNIS
O'DELL; PHILLIP REDMOND; J. W. TULBERT;
PEERLESS INSURANCE COMPANY,
Defendants - Appellees,
versus
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CA-03-123-V)
Submitted: March 16, 2005 Decided: April 26, 2005
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Roy
Cooper, Attorney General, Christopher G. Browning, Jr., North
Carolina Solicitor General, Michael D. Youth, Assistant Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina; Allan R. Gitter, Douglas R. Vreeland, WOMBLE, CARLYLE,
SANDRIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Alfredo Leon Sanchez appeals the district court’s order
dismissing his civil action that he filed under 42 U.S.C. § 1983(2000) and North Carolina law. We note Sanchez does not seek
appellate review of the portions of the district court’s order
that: (a) found all defendants except Peerless Insurance Company
were shielded from damages in their individual and official
capacities by qualified immunity and the Eleventh Amendment; (b)
dismissed the insurance company because its liability was
derivative of the liability of another dismissed defendant; and (c)
found the federal court could not grant the relief of the return of
property seized to pay state taxes.
On appeal, Sanchez challenges the district court’s
dismissal of his request that the court declare the North Carolina
Unauthorized Substance Tax Act, N.C.G.S. §§ 105-113.105 through
105-113.113, unconstitutional on its face and as applied to him.
Sanchez also argues on appeal that the district court should have
given him leave to amend his complaint to cure any deficiencies.
We conclude the district court properly found Sanchez failed to
establish that the Unauthorized Substance Tax Act was
unconstitutional as applied and on its face. We note this court
has declined to hold the current version of the North Carolina
Unauthorized Substance Tax Act to be an unconstitutional criminal
penalty. See Nivens v. Gilchrist, 319 F.3d 151, 157 (4th Cir.),
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cert. denied, 539 U.S. 915 (2003). We also conclude the district
court did not abuse its discretion in declining to grant Sanchez’s
informal and non-specific request for leave to amend.
Accordingly, we have reviewed the record and we find no
reversible error. We affirm for the reasons stated by the district
court. See Sanchez v. Tolson, No. CA-03-123-V (W.D.N.C. Aug. 6,
2004). 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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