Anthony v. Kannapolis Police Department et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:26-cv-00082-KDB
XAVIER ANTHONY, )
)
Plaintiff, )
) MEMORANDUM OF
vs. ) DECISION AND ORDER
) ON INITIAL REVIEW
)
KANNAPOLIS POLICE )
DEPARTMENT, et al., )
)
Defendants. )
____________________________________)
THIS MATTER is before the Court on initial review of Plaintiff’s Complaint, [Doc. 1],
filed under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e) and 1915A. Plaintiff is proceeding in
forma pauperis. [Docs. 2, 5].
I. BACKGROUND
Pro se Plaintiff Xavier Anthony (“Plaintiff”) is currently detained at the Cabarrus County
Jail in Concord, North Carolina. On January 29, 2026, he filed this action pursuant to 42 U.S.C.
§ 1983 against the Kannapolis Police Department (“Kannapolis PD”); J.D. Vanskiver, identified
as a Kannapolis PD Investigator; Gordon Belo, identified as Public Defender and Plaintiff’s
attorney; the Charlotte-Mecklenburg Police Department (“CMPD”); and the Cabarrus County
Sheriff Department. [Doc. 1]. Plaintiff sues Defendant Belo in his individual capacity and fails
to allege that capacity in which he sues Defendant Vanskiver. [Id. at 3, 7].
Plaintiff alleges as follows. Defendant CMPD named the Plaintiff as a suspect in a March
16, 2025 crime (the “CMPD case”) and implicated Plaintiff’s involvement in a similar March 9,
2025 crime in Kannapolis, North Carolina. Plaintiff was charged in the CMPD case, but it was
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 1 of 7

2
later dismissed on August 15, 2025. Defendant Vanskiver presented evidence from the CMPD
case, and Defendant Kannapolis PD issued a warrant for Plaintiff’s arrest for the March 9, 2025
crime. Plaintiff was wrongfully accused by the CMPD, which led to his being wrongfully accused
and arrested by the Defendant Cabarrus County Sheriff Department. Plaintiff was then detained
by the Cabarrus County Sheriff Department and held unlawfully based on insufficient evidence.
While detained at the Cabarrus County Detention Center, Plaintiff’s correspondence with his
lawyer, Defendant Belo, was read. Defendant Belo is unreliable, does not respond to Plaintiff’s
requests, is providing ineffective assistance of counsel, and has a terrible reputation. [Id. at 7-10].
Plaintiff purports to state claims for unlawful detainment, due process and attorney client
privilege violations, and deprivation of “life [and] liberty.” [Id. at 4]. For injuries, Plaintiff claims
to have suffered emotional distress, anxiety, depression, and having missed medical appointments
for his sickle cell disease while detained. [Id. at 9]. For relief, Plaintiff seeks monetary and
injunctive relief, including dismissal of his pending charges. [Id.].
II. STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to
determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or]
fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under
§ 1915A the Court must conduct an initial review and identify and dismiss the complaint, or any
portion of the complaint, if it is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or seeks monetary relief from a defendant who is immune to such relief.
In its frivolity review, this Court must determine whether the Complaint raises an
indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore,
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 2 of 7

3
a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, the liberal construction requirement will not permit a district court to ignore a clear
failure to allege facts in his Complaint which set forth a claim that is cognizable under federal law.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
To state a claim under § 1983, a plaintiff must allege that he was deprived of a right secured
by the Constitution or laws of the United States, and that the alleged deprivation was committed
by a “person” acting under color of state law. See 42 U.S.C. § 1983; Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999); Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S.
166, 143 S.Ct. 1444 (2023).
A. Cabarrus County Sheriff Department
The Office of Sheriff is not liable under § 1983 for an employee’s acts “unless action
pursuant to official municipal policy of some nature caused [the] constitutional tort.” Collins v.
City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct. 1061, 1066 (quoting Monell v Dep’t of
Soc. Servs. of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978))). That is,
“[f]or a governmental entity to be liable under section 1983, the official policy must be the moving
force of the constitutional violation.” Moore v. City of Creedmoor, 345 N.C. 356, 366, 481 S.E.2d
14, 21 (1997) (internal quotation marks and citations omitted). “Thus, the entity’s ‘policy or
custom’ must have played a part in the violation of federal law.” Id. (quoting Monell, 436 U.S.
658, 694, 98 S.Ct. at 2037-38). Here, Plaintiff has not alleged that a Cabarrus County Sheriff
Department policy or custom resulted in the violation of federal law. The Court, therefore, will
dismiss this Defendant.
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 3 of 7

4
B. Police Department Defendants
A police department is not a municipal entity subject to Monell liability under North
Carolina law. See Smith v. Munday, 848 F.3d 248, 256-57 (4th Cir. 2017) (citing Ostwalt v.
Charlotte-Mecklenburg Bd. Of Educ., 614 F.Supp.2d 603, 607 (W.D.N.C. 2008); Wright v. Town
of Zebulon, 202 N.C. App. 540, 688 S.E.2d 786, 789 (2010)). Plaintiff, therefore, has failed to
state a claim against the Kannapolis PD or the CMPD. The Court will dismiss these Defendants.
C. Defendant Belo
“[A] public defender does not act under color of state law when performing a lawyer’s
traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson,
454 U.S., 325 (1981). As such, Plaintiff has failed to state a § 1983 claim against Defendant Belo.
Plaintiff must raise the issue of ineffective assistance of counsel, if at all, in his state criminal
proceedings. The Court, therefore, will also dismiss Defendant Belo.
D. Defendant Vanskiver
To the extent Plaintiff intends to state a claim against Defendant Vanskiver, a state official,
in his official capacity, he has failed. “[A] suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official’s office.” Will v. Dep’t of
State Police, 491 U.S. 58, 71 (1989). Because a state is not a “person” under § 1983, state officials
acting in their official capacities cannot be sued for damages thereunder. Allen v. Cooper, No.
1:19-cv-794, 2019 WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, the Eleventh
Amendment bars suits for monetary damages against the State of North Carolina and its various
agencies. See Ballenger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003). As such, Plaintiff’s
claim against Defendant Vanskiver in his official capacity does not survive initial review and will
be dismissed.
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 4 of 7

5
Furthermore, Plaintiff has failed to state a claim for relief against Defendant Vanskiver in
any event. Plaintiff alleges only that Defendant Vanskiver presented evidence from the CMPD
case which supported charges against Plaintiff for a similar crime for which Plaintiff was arrested
but which Plaintiff alleges he did not commit. These vague and conclusory allegations do not state
a cause of action under § 1983 or otherwise. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and
plain statement of the claim showing that the pleader is entitled to relief”); Simpson v. Welch, 900
F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material
fact are not sufficient); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader
must allege facts, directly or indirectly, that support each element of the claim).
Moreover, it appears here that Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S.
477 (1994). In Heck, the United States Supreme Court held as follows:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the plaintiff’s
action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to
the suit.
Id. at 486-87 (footnotes omitted; emphasis added). Here, given the nature of the allegations in the
Complaint, a judgment in Plaintiff’s favor would necessarily imply the invalidity of any conviction
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 5 of 7

6
or sentence in the remaining underlying criminal matter and Plaintiff has not alleged that a
conviction has been reversed or otherwise invalidated. Therefore, his Complaint appears to be
barred by Heck. The Court, therefore, will allow Plaintiff to amend his Complaint to show that it
is not Heck-barred and to otherwise state a claim for relief.
IV. CONCLUSION
In sum, Plaintiff’s claims will be dismissed on initial review for Plaintiff’s failure to state
a claim for relief. The Court will allow Plaintiff thirty (30) days to amend his Complaint, if he so
chooses, to show that Heck does not apply and to otherwise properly state a claim for relief. Should
Plaintiff fail to timely amend his Complaint, this action will be dismissed without prejudice and
without further notice to Plaintiff.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff shall have thirty (30) days in which to
amend the Complaint in accordance with the terms of this Order. If Plaintiff fails to amend the
Complaint in accordance with this Order and within the time limit set by the Court, this action will
be dismissed without prejudice and without further notice to Plaintiff.
IT IS FURTHER ORDERED that Plaintiff’s Complaint will be DISMISSED on initial
review for Plaintiff’s failure to state a claim for relief.
IT IS FURTHER ORDERED that all Defendants are hereby DISMISSED as Defendants
in this matter.
The Clerk is respectfully instructed to mail Plaintiff a blank Section 1983 form.
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 6 of 7

7
IT IS SO ORDERED. Signed: February 21, 2026
Case 3:26-cv-00082-KDB Document 6 Filed 02/23/26 Page 7 of 7