Pollard v. Pollard
325 F. App'x 270
4th Cir.
2009
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Docket

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.

No. 08-1402

United States Court of Appeals, Fourth Circuit

April 27, 2009

Submitted: March 31, 2009.

“whether the sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.”

(citation omitted).

This court will find a sentence to be unreasonable if the sentencing court “provides an inadequate statement of reasons or relies on improper factors in imposing a sentence outside a properly calculated sentencing range.”

The court, however, must give due deference to the district court‘s decision that the 18 U.S.C. § 3553(a) (2006) factors justify the sentence. See
;
. Even if this court would have imposed a different sentence, this fact alone will not justify vacatur of the district court‘s sentence.
.

Our review of the record convinces us that the district court‘s 250-month variance sentence was substantively reasonable. The district court considered the parties’ arguments and engaged in a meaningful articulation of its consideration of the 18 U.S.C. § 3553(a) factors supporting the seventy-five-month upward variance. Notably, the court thoroughly reviewed Frye‘s extensive criminal history and accurately highlighted Frye‘s history of assaultive and threatening behavior.

Accordingly, we affirm the district court‘s judgment. 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.

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.

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.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.

. “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint....”
. In ruling on a 12(b)(6) motion, all well-pleaded allegations in the complaint are to be taken as true and all reasonable factual inferences are to be drawn in the plaintiff‘s favor.
. Although a complaint need not contain detailed allegations, the facts alleged must be enough to raise a right to relief above the speculative level.
. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.”
.

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

. The right not only protects the ability to get into courts, but also ensures that such access be “adequate, effective, and meaningful.”
. 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.
. However, a “plaintiff cannot merely guess that a state court remedy will be ineffective because of a defendant‘s actions.”
. 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.
.

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.

.

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,

, because the district court determined that the amended complaint would not survive a motion to dismiss, that legal conclusion is reviewed de novo.
. In her second amended complaint, Pollard does nothing more than 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
(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.