Barbara Pollard v. Michelle Pollard, No. 08-1402 (4th Cir. 2009)

 Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1402 BARBARA POLLARD, Plaintiff - Appellant, v. MICHELLE POLLARD, in her individual capacity; LEE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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 access to Sheriff s Office. the courts surrounding her son s Defendants Fed. R. § 1983 action jurisdiction further complaint over denied in claim, the 12(b)(6) state claim. motion she sought to allegations of the police cover-up. district court s dismissal of her The file denial to a provide of cover-up court entertain to a police motion to law a district declined Pollard s which The P. posited alleging death. Civ. and Pollard granted dismiss the supplemental district court second amended more factual Pollard now appeals the § 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. v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). a Rule 12(b)(6) motion complaint . . . . 243 (4th Cir. 1999). is to test the Mayes The purpose of sufficiency of a Edwards v. City of Goldsboro, 178 F.3d 231, In ruling on a 12(b)(6) motion, all well- pleaded allegations in the complaint are to be taken as true and 2 all reasonable factual plaintiff s favor. inferences Id. at 244. are to be drawn in the 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 Id. at 1974. that is plausible on its face. On appeal, erred in dismissing leave to file futility. a Pollard her second argues amended the district complaint § 1983 that and in complaint on court denying the ground her of The gravamen of her appeal is that her § 1983 denial of access to the courts claim based on a pervasive police coverup 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. 415 n.12 (2002). See Christopher v. Harbury, 536 U.S. 403, The right not only protects the ability to get into courts, but also ensures that such access be adequate, effective, and meaningful. (1977). The denial of Bounds v. Smith, 430 U.S. 817, 822 meaningful access to the courts is established where a party engages in pre-filing actions which effectively cover up evidence court remedies ineffective. and actually render any state Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997). 3 However, a plaintiff cannot merely guess that a state court because of a defendant s actions. remedy will be Id. at 1264. ineffective 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 Id. at 1263-64. have had. In action is this case, pending in Pollard s state court timely-filed and wrongful therefore she death 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 conclusion is reviewed de novo. to dismiss, that legal HCMF Corp. v. Allen, 238 F.3d 273, 277 n.2 (4th Cir. 2001). In her second amended complaint, Pollard than does nothing more 4 allege additional facts 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 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.