UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 wellpleaded 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 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. 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