Opinion
No. 4:18-CV-199-FL
01-17-2019
CALVIN EARL BROWN, Plaintiff, v. SUPERIOR COURT OF WAKE COUNTY, R. ALLEN BADDOUR, and STATE OF NORTH CAROLINA, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, because Defendants are immune from suit, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Corr., 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . . .'" Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id. In the present case, Plaintiff is proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. DISCUSSION
Plaintiff alleges his due process rights under the United States Constitution were violated when Wake County Superior Court Judge R. Allen Baddour erroneously dismissed Plaintiff's case against the North Carolina Department of Revenue and failed to rule on Plaintiff's motion for reconsideration filed December 19, 2017, effectively denying Plaintiff his right to appeal the dismissal. Compl. [DE-1-1] at 4; Mem. [1-2] at 4. Plaintiff also alleges he filed a notice of appeal with the Clerk of the Superior Court of Wake County on October 15, 2018, but received no response. Id. Plaintiff seeks $160 million in damages from the State of North Carolina and Judge Baddour. Compl. [DE-1-1] at 4-5.
The acts of which Plaintiff complains—erroneously dismissing Plaintiff's case and not timely ruling on a motion—are "judicial acts" for which judges are entitled to absolute immunity. See Dove v. Pate, No. 5:15-CT-3132-BO, 2016 WL 7655777, at *2 (E.D.N.C. Jan. 12, 2016), aff'd, 651 F. App'x 188 (4th Cir. 2016). Much of Plaintiff's memorandum addresses the merits of the underlying state court case, presumably in order to demonstrate Judge Baddour erroneously dismissed the case. Mem. [DE-1-2] at 5-19. However, "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); see also Dean v. Shirer, 547 F.2d 227, 231 (4th Cir. 1976) (concluding a judge may not be attacked for exercising judicial authority even if done improperly); Green v. North Carolina, No. 4:08-CV-135-H, 2010 WL 3743767, at *3 (E.D.N.C. Sept. 21, 2010) (concluding claims against a North Carolina Superior Court Judge and/or clerk of court within their capacities as judicial officers are barred by doctrine of judicial immunity). "Judges are subject to civil liability for judicial acts only where they act in 'clear absence of all jurisdiction.'" Fullard v. Horne, No. 5:17-CT-3159-FL, 2018 WL 3302732, at *3 (E.D.N.C. July 5, 2018) (quoting Stump, 435 U.S. at 357), aff'd, No. 18-6896, 2019 WL 117113 (4th Cir. Jan. 7, 2019). Plaintiff has not alleged that Judge Baddour acted without jurisdiction. Accordingly, judicial immunity bars Plaintiff's claims against Judge Baddour.
Plaintiff also alleges he filed a notice of appeal with the Clerk of the Superior Court of Wake County on October 15, 2018, but received no response. Mem. [1-2] at 4. The Superior Court of Wake County and the State of North Carolina are protected by sovereign immunity under the Eleventh Amendment. See Dillon v. Mills, No. 4:16-CV-3-FL, 2016 WL 3102015, at *2 (E.D.N.C. June 2, 2016) (dismissing claims against the North Carolina Judicial System because state agencies are immune from suits by private citizens in federal court absent waiver of immunity by the state); Philips v. N.C. State, No. 5:15-CV-95-F, 2015 WL 9462095, at *6 (E.D.N.C. Dec. 28, 2015) (dismissing claims against state defendants, including the North Carolina Court System and the State of North Carolina, as barred by sovereign immunity). As the Supreme Court has stated, "[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). This immunity from suit applies not only to the State itself, but also to claims against state agencies and state officials acting in an official capacity. See Myers v. North Carolina, No. 5:12-CV-714-D, 2013 WL 4456848, at *3 (E.D.N.C. Aug. 16, 2013) ("State agencies and state officials acting in their official capacities also are protected against a claim for damages because a suit against a state office is no different from a suit against the state itself.") (citations omitted). However, sovereign immunity may be waived or abrogated where the state agency has waived its immunity or where Congress has overridden that immunity. Philips, 2015 WL 9462095, at *6 (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)). Plaintiff has not alleged any facts from which the court could find that sovereign immunity has been waived or abrogated. Accordingly, it is recommended that the complaint be dismissed because all Defendants are immune from suit.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until January 31, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
This the 17th day of January 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge