Opinion
C/A 0:23-4565-SAL-SVH
01-24-2024
Alexis Carberry, Plaintiff, v. Darlington County School District, Tim Newman, Carla Jefferson, and Brian P. Murphy, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
Alexis Carberry (“Plaintiff”), proceeding pro se, originally filed this suit in the Lancaster County Court of Common Pleas alleging as follows:
On or about May 19th, 2023 through July 24th, 2023, Plaintiff was hired as a student's Special Education Advocate through Individuals with Disabilities Education Act or IDEA, Section 504 and Americans with Disabilities Act. Defendants published and stated false statements about the Plaintiff making accusations that resulted in a ban on the plaintiff.[ECF No. 1-1 ¶ 4 (punctuation slightly altered)].
Based on the above allegations, Plaintiff has asserted claims against Darlington County School District (“District”), Tim Newman (“Newman”), and Carla Jefferson (“Jefferson”) (collectively “District Defendants”), as well as Brian P. Murphy (“Murphy”), a local hearing officer (“LHO”). Plaintiff brings claims pursuant to 42 U.S.C. § 1983 for defamation and harassment. [See ECF No. 1-1].
This matter comes before the court on the motions to dismiss filed by District Defendants and Murphy. [ECF Nos. 9, 13]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if she failed to respond adequately to the motions. [ECF Nos. 10, 14]. Also pending before the court is Murphy's motion for permanent injunction [ECF No. 12], and Plaintiff's motions for recusal, to amend/correct the complaint, and to appoint counsel. [ECF Nos. 17, 18, 26, see also ECF Nos. 30, 34].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. For the following reasons, the undersigned denies Plaintiff's motions and recommends the district judge grant the motions to dismiss, dismissing this case with prejudice. The undersigned further recommends the district judge grant Murphy's motion for permanent injunction, entering an injunction against Plaintiff from filing any civil litigation against Murphy, in any court, without leave of this court and directing her that any further suits she files against Murphy may only be filed in this court.
I. Background
A. Plaintiff's General Procedural Background in this Court
Plaintiff is known to this court. On February 22, 2022, Plaintiff filed her first case in North Carolina. Benson v. Fort Mill Schools, C/A No. 3:22-00071-FDW-DCK (“Benson I”).The case was transferred to this court and docketed as C/A No. 0:22-00614-SAL-SVH.Plaintiff's allegations primarily concerned treatment received by her child in his public education setting. [Benson I, ECF No. 1 at 1, 4-13].
In some, but not all, of the cases discussed in this background, Plaintiff filed suit in conjunction with Kevin Carberry, Sr. Additionally, in some, but not all, of the cases discussed, Plaintiff lists her name as Alexis Benson.
On April 11, 2022, Plaintiff filed a second case in North Carolina against Fort Mill Schools and others. Benson v. Fort Mill Schools, C/A 3:22-00154-RJC-DSC (W.D.N.C). The case was dismissed, but not transferred, based on the court's decision in Benson I that venue was not appropriate in North Carolina. Additionally, on June 16, 2022, Plaintiff filed a second action in this court that seemingly tracked the allegations of her second North Carolina case that was dismissed. Benson v. Fort Mill Schools, C/A No. 0:22-01912-SAL-SVH (“Benson II”). This court consolidated Benson II into Benson I.
Plaintiff filed two notices of appeal in Benson I.On September 26, 2023, this court dismissed Benson I with prejudice, finding Plaintiff had failed to state a claim pursuant to the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1400, et seq. against the Fort Mill Schools/York County District 4 and South Carolina Board of Education. [Benson I, ECF Nos. 134, 147].
The Fourth Circuit initially docketed the appeals as 22-2104 and 22-2310. On March 1, 2023, the Fourth Circuit consolidated the appeals (“Benson I Appeal”). The Benson I Appeal was dismissed for lack of jurisdiction. See Benson on behalf of K.C. v. Fort Mill Sch./York Cnty. Dist. 4, C/A No. 222104, 2023 WL 2610256, at *1 (4th Cir. Mar. 23, 2023), cert. denied sub nom. Benson on Behalf on K.C. v. Fort Mill Sch./York Cnty. Dist. 4, 144 S.Ct. 198 (2023).
In Benson I, this court ruled that individuals are not subject to suit under the IDEA. See Benson on behalf of K.C. v. Fort Mill Sch./York Cnty. Dist. 4, C/A No. 022-00614-SAL-SVH, 2023 WL 3017832, at *4 (D.S.C. Apr. 20, 2023), reconsideration denied sub nom. Benson v. Fort Mill Sch./York Cnty. Dist. 4, C/A No. 0:22-614-SAL-SVH, 2023 WL 4145029 (D.S.C. June 22, 2023).
The undersigned notes that Plaintiff unsuccessfully attempted to add LHO Murphy to the Benson I suit. [Benson I, ECF Nos. 102, 116].On April 12, 2023, Plaintiff filed a complaint against Lancaster County School District and LHO Murphy, as well as multiple others, again asserting IDEA claims, among other claims. Benson v. Lancaster County Sch. District, C/A No. 23-1488-SAL-SVH (“Lancaster County Case”). This case remains pending before the court, although the undersigned has issued a report and recommendation, recommending the case be dismissed without prejudice based on Plaintiff's failure to submit the required filing fees. [Lancaster County Case, ECF No. 23].
Plaintiff also has a pending case before this court unrelated to her cases involving the South Carolina education system and personnel. See Carberry v. Lancaster County Sheriff Office, C/A No. 23-4838-SAL-SVH (filed September 27, 2023).
Finally, and most recently, Plaintiff filed suit on October 6, 2023, against Greenville County School District, LHO Murphy, as well as multiple others, again asserting IDEA claims, among other claims. See Brown-Sartor v. Greenville County Sch. District, C/A No. 6:23-5029-TMC-KFM (“Greenville County Case”). This case remains pending before the court, although the district judge has denied Plaintiff's motion for preliminary injunction that requested, in part, that LHO Murphy be enjoined from being appointed as a LHO until an investigation and audit of the South Carolina Department of Education is conducted. [Greenville County Case, ECF No. 19].
The undersigned notes that in Benson I, Benson II, the Lancaster County Case, and the Greenville County Case, Plaintiff attempted or attempts to bring claims on behalf of minor children, her own or others', notwithstanding the court's repeated direction that she may not do so, as she is proceeding pro se. For example, as stated by this court in Benson I:
Although Ms. Benson and Mr. Carberry may litigate their own claims pro se, see 28 U.S.C. § 1654, because they are not attorneys licensed to practice in this court, they cannot litigate on behalf of K.J.C. See Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005) (“[N]on-attorney parents generally may not litigate the claims of their minor children in federal court.”); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (“[W]e consider the competence of a layman representing himself to be clearly too limited to allow him to risk the rights of others.”).Benson, 2023 WL 3455629, at *3.
B. Procedural Background in this Case
In the instant case, Plaintiff has sued District Defendants and LHO Murphy alleging as follows:
On or about May 19th, 2023 through July 24th, 2023, Plaintiff was hired as a student's Special Education Advocate through Individuals with Disabilities Education Act or IDEA, Section 504
and Americans with Disabilities Act. Defendants published and stated false statements about the Plaintiff making accusations that resulted in a ban on the plaintiff. There was and is no evidence to justify this blatant unethical behavior, but to deny the students right to advocacy, in order to obstruct justice in discovering and continuing to be negligent of providing the student with a Free and Appropriate Public Education. There is however, video and audio evidence to dispute Carla Jefferson and Brian P Murphy's written claims which constitute defamation and harassment against the Plaintiff. This despite the district refusing to disclose the school surveillance video.
The Action of the Defendants were wrong, malicious, and designed and orchestrated by district attorneys and school staff in order to embarrass and damage the plaintiff's reputation. This is because of prior success against the South Carolina Department of Education and other school districts. They are pathetically attempting to create false documentation in order to damage the plaintiff's new special education advocacy business, Angel Advocates for Special Education LLC. Plaintiff has suffered extreme mental and emotional anguish because of the defendants blatantly false agenda and narrative. Plaintiffs suffer loss of wages and business as a result of the deliberate and malicious conduct.
Plaintiff has suffered harm to her reputation, humiliation, embarrassment, mental anguish and distress by having the police department make false documentation about the plaintiff while at the same time refusing to add the plaintiffs name as the victim. Plaintiffs claimed harassment by Carla Jefferson as she followed the plaintiff around the school property attempting to provoke her and the parent she was representing.[ECF No. 1-1 ¶¶ 4-6 (punctuation slightly altered)].
As context to the above allegations, it appears that parties agree that in April 2022, the parents of a child with special needs contacted Plaintiff after she began an advocacy business titled Angel Advocates 4 Special Education LLC, to, in Plaintiff's words, “help other parents navigate the system and obtain justice for their children with special needs.” [ECF No. 17 at 2].
Regarding this child, it appears that Plaintiff sought to attend the child's individualized educational plan (“IEP”) meetings with the parents, and in May 2023, one such IEP meeting was scheduled. [ECF No. 17 at 4, ECF No. 17-3 at 3]. At this meeting, a dispute arose among Plaintiff, the parents, school personnel and, eventually, police personnel, that initially concerned whether the IEP meeting was to be held virtually or in person. [See ECF No. 9-2 at 6].
As Plaintiff stated, on June 18, 2023, LHO Murphy was appointed to the child's case, and Plaintiff argues as follows:
On June 18th the Appointment of a LOCAL hearing officer was given. At no surprise, it was Brian P Murphy all the way from Greenville, SC. This would be his 7th appointment in a row with Brian P Murphy for the plaintiff within 4 separate school districts over the course of 2 years ....
Brian P Murphy then issues an Order June 21st making false and derogatory claims and restrictions to the plaintiff with the sole purpose to continue to create false documentation to defame the plaintiff and stop her from exposing the “scheme” the LHO participates in within the SCDOE IDEA DPH process and procedures. This has been the case since Spring of 2022 with this LHO and the plaintiff, in which he continues to harass, stonewall and follow her around the state as she advocates for special needs students ....
During the recorded pre hearing conference, LHO Murphy refused to allow the advocate to advise and assist the parents in asking and answering questions with regard to the hearing
denying the child's right to advocacy in IDEA Hearing rights, Section 300.511. He Orders the parents to submit a pre hearing written argument for several items which included, IDEA violations, and Argument for Motion to Recuse, to give “busywork” to the petitioners, already having decided he would not recuse himself ....
Brian P Murphy continues to weaponize the government against its citizens in his next order where he shows a large degree of narcissistic and egocentric tendencies and behaviors.[ECF No. 17 at 4-71.
Plaintiff additionally submits extensive evidence and argument as to her history with LHO Murphy involving cases unrelated to this one; actions she and others have taken as to LHO Murphy, such as filing repeated motions to recuse and objections to his orders; and opinions she and others hold as to LHO Murphy. [See generally ECF No. 171.
Plaintiff additionally argues that, regarding the May 2023 incident, “Jefferson replied with a response sent via USPS with fabricated lies of her recollection of the events, which was clear liable/defamation against the plaintiff,” and that “Newman did not intervene and exercise his supervisory authority or his duty of care” when Plaintiff was excluded from the meeting “based on the false statements made by Carla Jefferson.” Id. at 3, 4, see also id. at 23 (“Plaintiffs claim harassment by all defendants which include but not limited to, Carla Jefferson as she followed the plaintiff around the school property attempting to provoke her and the parent she was advocating for as seen in the police body cam and will be proven after reasonable discovery of the schools surveillance footage.”).
Plaintiff repeatedly alludes to relevant video and audio evidence. [See ECF No. 17-6, ECF No. 17-28]. However, Plaintiff has not submitted any electronic evidence to the court.
LHO Murphy has submitted to the court redacted versions of the orders he believes Plaintiff references in the complaint, dated June 28, 2023, and July 3, 2023. [ECF No. 9-2, ECF No. 9-3].The court has reviewed these documents in which LHO Murphy repeatedly directs the parents to focus on the student's education and any relevant IDEA issues presented and, in doing so, rejects the attempts made by the parents and Plaintiff to seek evidence and/or present argument about other issues. [See, e.g., ECF No. 9-2 at 6 (“I will consider any legitimate issue about meeting modes or notices relevant to a potential procedural violation. But we will not have a hearing on the altercation itself or the involvement of police unless a party can convince me that it is somehow relevant to an actual claim or defense. Before any party ventures to make such an argument, I advise you to ask yourself: ‘What does this have to do with Student?'”)].
The court notes that, in deciding a motion to dismiss:
A court may . . . consider a ‘written instrument' attached as an exhibit to a pleading, see Fed.R.Civ.P. 10(c), ‘as well as [documents] attached to the motion to dismiss, so long as they are integral to the complaint and authentic.' Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). “‘[W]hen a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant may attach the document to a motion to dismiss the complaint and the [c]ourt may consider the same without converting the motion to one for summary judgment.'” Brailsford v. Fresenius Med. Ctr. CNA Kidney Centers LLC, C/A No. 2:15-04012-DCN, 2017 WL 1214337, at *6 (D.S.C. Apr. 3, 2017) (citing Perkins v. U.S. Airways, Inc., C/A No. 6:14-2577-BHH, 2015 WL 5783561, at *4 (D.S.C. Sept. 30, 2015)). Accordingly, the undersigned also includes review above of the pertinent documentation submitted by the parties in conjunction with the motion to dismiss where Plaintiff specifically referenced these documents in her complaint and does not dispute the Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under documents' authenticity.
Plaintiff has also submitted one order by LHO Murphy, dated July 7, 2023, in which he stated as follows:
On June 28, I issued an Order on Prehearing Matters. That Order recounted repeated problems posed by Alexis Benson in this and other matters. Because of her behavior, I set forth several conditions on her continued participation, including the following: “Ms. Benson may not email me, speak to me, or otherwise communicate with me about this matter at any time.” [Order of June 28 at 5 ¶ 3]. This morning, Ms. Benson emailed me directly .... My Order was clear: “Any violation of the hearing order or this order on Ms. Benson's part will result in her removal from the proceedings. There will be no further warnings.” [June 28 Order at 5]. Ms. Benson is barred from any further proceedings in this matter. She will not attend the hearing. She may not participate or join in any other pre-hearing matters ....[ECF No. 17-15 at 3-4 (footnotes omitted)].
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “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)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support” the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs. Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
B. Analysis
1. Defendants' Motions to Dismiss
a. Judicial Immunity
As Plaintiff has been previously informed, see Benson, 2023 WL 3455629, at *4 (collecting cases), LHO Murphy is a judicial officer who enjoys absolute immunity.
In Ostrzenski v. Seigel, the Fourth Circuit explained that, while the “prospect of liability for damages encourages public officials to perform their assignments appropriately,” there are situations in which the “threat of liability for damages hinders, rather than advances, the prospects that public officials will perform their duties in the public interest. The special functions of some governmental officials require that they be exempted completely from such liability.” 177 F.3d 245, 248-49 (4th Cir.1999) (citations omitted). These officials include “judges performing judicial acts within their discretion . . . and ‘quasi-judicial' agency officials whose duties are comparable to those of judges . . . when adequate procedural safeguards exist.” Id. at 249.
Although the Fourth Circuit has not addressed the specific issue of whether a LHO is entitled to quasi-judicial immunity, the Supreme Court and the Fourth Circuit have extended quasi-judicial immunity to a wide range of administrative officials performing essentially adjudicative functions. See, e.g., Butz v. Economou, 438 U.S. 478, 513-14 (1978) (extending quasi-judicial immunity to federal ALJs); Ostrzenski, 177 F.3d at 250 (extending quasi-judicial immunity to physician conducting peer review at behest of Maryland Board of Physician Quality Assurance); Mathis v. Goldberg, 538 Fed.Appx. 310, 311 (4th Cir. 2013) (extending quasi-judicial immunity to state arbitrator); Richter v. Connor, No. 93-1433, 1994 WL 118011, at *3 (4th Cir. April 8, 1994) (extending quasi-judicial immunity to medical board members and staff assistants); see also Baccus v. Florian, C/A No. 9:12-2440-DCN-BM, 2012 WL 4985243, at *3 (D.S.C. Sept. 21, 2012) (extending quasi-judicial immunity to court personnel), report and recommendation adopted, C/A No. 9:12-2440 DCN, 2012 WL 4984646 (D.S.C. Oct. 17, 2012). Singletary v. Dep't of Health & Hum. Servs./NC Infant Toddler Program, 848 F.Supp.2d 588, 593 (E.D. N.C. 2012) (“Because Ms. Singletary's allegations against Mr. Dixon attack his conduct within the scope of his duties as a hearing officer, Mr. Dixon is entitled to absolute immunity and Ms. Singletary's claims against him are DISMISSED.”), aff'd, 502 Fed.Appx. 340 (4th Cir. 2013).
As stated by the Fourth Circuit:
[L]ower courts have identified three criteria to determine if an official is entitled to absolute quasi-judicial immunity: (1) if the official's functions are similar to those of a judge, in that the official determines the law and the facts of the case; (2) if the official makes decisions sufficiently controversial that they are likely to foster suits for damages by disappointed parties; and (3) if sufficient procedural safeguards are in place to protect against constitutional deprivations.Richter, 1994 WL 118011, at *3. Here, all three factors support the conclusion that LHO Murphy is entitled to absolute quasi-judicial immunity.
First, LHOs' functions are like those of a judge. As explained by the Fourth Circuit:
The IDEA was enacted in 1990 to ensure that all children with disabilities receive a “free appropriate public education” (a
“FAPE”) A school district is required by the IDEA to provide an IEP for each disabled child The IDEA establishes a series of elaborate procedural safeguards “designed to ensure that the parents or guardian of a child with a disability are both notified of decisions affecting their child and given an opportunity to object to these decisions.” Gadsby v. Grasmick, 109 F.3d 940, 956 (4th Cir.1997) .... If the parents or guardian are not satisfied with the IEP, they are entitled to request a due process hearing. 20 U.S.C. § 1415(f). In South Carolina, that hearing is conducted before a local Hearing Officer and is appealable to a state-level Reviewing Officer . . . . S.C. Code Ann. Regs. § 43-243. Any party aggrieved by the findings and decision of a Reviewing Officer may then bring suit in state or federal court. See id. (“Any party aggrieved by the findings and decision . . . shall have the right to bring a civil action . . . in any State court of competent jurisdiction or in a district court of the United States ”).MM ex rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 526-27 (4th Cir. 2002).
As stated above, in South Carolina, there is a two-tier due process hearing system, and, at the first level, a due process hearing is conducted by an LHO trained by the South Carolina Department of Education and “shall not be an officer, agent, school board official, or employee of the school district/agency that is involved in the education or care of the student, or formerly employed by the school district or agency involved in the matter.” See South Carolina Department of Education, “Due Process,” https://ed.sc.gov/districts-schools/special-education-services/parent-resources/ dispute-resolution-information/due-process/#:~:text=Due%20process% 20hearing%20decisions (last visited January 23, 2024). During the hearing, the parties have the right to:
A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
• be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities;
• present evidence and confront, cross examine, and compel the attendance of witnesses by asking the hearing officer to issue subpoenas for potential witnesses when necessary;
• prohibit the introduction of any evidence that has not been disclosed to that party at least 5 calendar days prior to the hearing;
• obtain a written transcript, or at the option of the parents, electronic verbatim transcript-of the findings of fact and the decisions made at the hearing (at no cost to the parents); and
• obtain written, or at the option of the parents, electronic findings of facts and decisions (at no cost to the parents).See id.; see also, e.g., SC Code Ann. § 59-33-90 (“Duly appointed hearing officers of local school districts and other state operated programs shall have the power of subpoena consistent with the requirements and regulations of Public Law 94-142”); 20 U.S.C. § 1415 (procedural safeguards).
The ability to conduct hearings, receive evidence, issue subpoenas, and issue orders including findings of fact are quintessential judicial functions protected by quasi-judicial immunity, and, in this case, Plaintiff does not challenge any action taken by LHO Murphy except those taken pursuant his LHO position. Additionally, and as repeatedly underscored by Plaintiff, LHO Murphy makes decisions sufficiently controversial that they are likely to foster suits for damages by disappointed parties. Finally, and as outlined above, the process afforded to the relevant parent and students extensive procedural protections. See, e.g., Ostrzenski, 177 F.3d at 251 (“An action for damages is not necessary to safeguard against the inappropriate exercise of that discretion since other protections are provided through review by the hearing officer, the Board, and ultimately the judiciary.”).
Accordingly, the undersigned recommends the district judge grant LHO Murphy's motion to dismiss, dismissing the claims asserted against him.
Given the recommendation above, it is unnecessary to address LHO Murphy's additional arguments for dismissal, including that he is entitled to Eleventh Amendment immunity. [See ECF No. 9 at 5-6].
b. IDEA and 42 U.S.C. § 1983
To the extent that Plaintiff brings claims pursuant to 42 U.S.C. § 1983 alleging violations of her or anyone else's IDEA rights, she is unable to do so. The Fourth Circuit has held that Congress did not intend for IDEA rights to be enforceable under 42 U.S.C. § 1983. See Sellers v. School Bd. of Mannassas, Va., 141 F.3d 524 (4th Cir. 1998) (“Because IDEA provides a comprehensive remedial scheme for violations of its own requirements, we hold that parties may not sue under section 1983 for an IDEA violation.”); see also Singletary, 848 F.Supp.2d at 592.
Additionally, under the IDEA, students and parents have rights they may pursue in an IDEA appeal, see, e.g., Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007); however, there is no indication that individuals who assist those students and parents are provided any independent right to appeal. The relevant statute provides parents and students “the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.” 20 U.S.C. § 1415(h)(1).
The court finds useful the discussion from the Eastern District of Virginia District Court concerning this statute:
The IDEA does not specifically state whether a non-attorney advocate can represent parties in a due process hearing. In the 2003-2004 reauthorization, a house bill contained a provision stating that a party had a “right to be represented by counsel and by non-attorney advocates and to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities.” 63 Cong. Rec. H3,495 (daily ed. Apr. 30, 2003). However, the final bill enacted in 2004 did not contain that language.
Instead, it merely reads that a party “shall be accorded (a) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to problems of children with disabilities.” 20 U.S.C. § 1415(h)(1) (emphasis added).
In devising the implementing regulations for the IDEA, the Department of Education concluded that the IDEA was silent on whether a non-attorney advocate could represent a party to a due process hearing, meaning that the representational role of nonattorney advocates was left by the IDEA to be decided by the states. 73 Fed.Reg. 73,017 (Dec. 1, 2008). Thusly informed by the Department of Education, the states have taken different views on the role of non-attorney advocates in due process hearings under the IDEA. Ten states prohibit lay advocates from representing parents in the due process hearings. Twelve states allow lay advocates to fill a representational role. Twenty-one states have no rules, and eight states leave the matter to the hearing officers who preside over due process hearings. See Perry A. Zirkel, Lay Advocates and Parent Experts under the IDEA, 217 West Educ. L. Rep. 19, 21 (2009).Henrico Cnty. Sch. Bd. v. Matthews, C/A No. 3:18-110, 2019 WL 4860936, at *1-2 (E.D. Va. Oct. 2, 2019) (footnote omitted), affd sub nom. Henrico Cnty. Sch. Bd. v. Lucas, 827 Fed.Appx. 367 (4th Cir. 2020); see also 34 C.F.R. § 300.512(a)(1) (“[W]hether parties have the right to be represented by nonattorneys at due process hearings is determined under State law.”).
As noted by the court, “Virginia law allows lay advocates to represent parents in due process hearings and recites that doing so does not put the advocate afoul of the rules defining the unauthorized practice of law.” See Henrico, 2019 WL 4860936, at *2 (citing Va. Code Ann §§ 22.1-214(c), 54.13904). However, as represented by LHO Murphy, and not disputed by Plaintiff, “[i]n South Carolina, there is no such right.” [See ECF No. 19-2 at 4]. As stated in the applicable statutory regulations, in South Carolina, “[t]he applicant and the state may present evidence in writing and through witnesses and may be represented by counsel at the hearing.” S.C. Code Ann. Regs. 43-243(IV)(E)(3)(f) (emphasis added).
Accordingly, to the extent that Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 alleging violations of her or anyone else's IDEA rights, the undersigned recommends the district judge dismiss these claims.
In the IDEA proceedings below, it does not appear that the parents pursued any challenge as to their own rights, for example, rights guaranteed by 20 U.S.C. § 1415(h)(1), by appealing any order issued by LHO Murphy to a state review officer. [See ECF No. 19-1].
c. Defamation and 42 U.S.C. § 1983
Allegations of defamation alone do not suffice to form a 42 U.S.C. § 1983 claim. See Paul v. Davis, 424 U.S. 693, 710 (1976). To support such a claim, as stated by the Fourth Circuit:
[A] plaintiff must allege more than “stigma” or harm to “reputation alone.” Elhady v. Kable, 993 F.3d 208, 226 (4th Cir. 2021) (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)). Rather, a plaintiff must prove “[(1)] a statement ‘stigmatizing his good name' and damaging his standing in the community; (2) some type of dissemination or publication of the statement; and (3) some other government action that ‘alter[s] or extinguishe[s] one of his legal rights.'” Id. (quoting Davis, 424 U.S. at 706, 711, 96 S.Ct. 1155). We call this a “stigma-plus” claim. See id.Long v. Pekoske, 38 F.4th 417, 426 (4th Cir. 2022).
Here, Plaintiff has failed to identify a “stigmatic statement” made by Jefferson.Plaintiff alleges only in her complaint that “Defendants published and stated false statements about the Plaintiff making accusations that resulted in a ban on the plaintiff.” [ECF No. 1-1 at 5]. Although Plaintiff has argued in briefing that Jefferson “replied with a response sent via USPS with fabricated lies of her recollection of the events, which was clear liable/defamation against the plaintiff” [ECF No. 17-3], Plaintiff has failed to submit any evidence or even argument identifying any defamatory statement Jefferson allegedly said.
Plaintiff alleges LHO Murphy also made defamatory comments in an order he issued; however, as discussed above, LHO Murphy is entitled to quasijudicial immunity.
For these reasons, Plaintiff's defamation claim also fails under state law. See, e.g., Doe v. Cannon, C/A No. 2:16-00530-RMG, 2017 WL 591121, at *1 (D.S.C. Feb. 14, 2017) (“Plaintiff has failed to state a claim against the Senn Defendants for defamation because her Complaint does not state with specificity the time, place, medium, and listener of the alleged defamatory statements.”).
Additionally, Plaintiff has failed to allege a constitutionally-cognizable injury, as her allegations of damage to her reputation and of the loss of income from her advocacy business fail to state viable constitutional claims. See Siegert v. Gilley, 500 U.S. 226, 233 (1991) (finding an individual cannot claim a constitutionally-protected interest in his or her reputation); Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994) (“[A]ction which inflicts a stigma on the reputation of a plaintiff causing that plaintiff hardship in obtaining employment is harm to reputation that does not rise to the level of a constitutional deprivation.”); Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir. 1987) (noting defamatory statement resulting in loss of clients and income insufficient); DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 200-03 (1989) (explaining it is well settled that civil rights statutes, such as § 1983, do not impose liability for violations arising under a state's tort law).
Plaintiff also alleges “harassment by Carla Jefferson as she followed the plaintiff around the school property attempting to provoke her and the parent she was representing.” [ECF No. 1-1 at 6]. However, “it is well-settled that allegations of verbal harassment cannot state a cognizable § 1983 claim.” Dontell v. Safford, C/A No. 9:22-01641-BHH-MHC, 2023 WL 7134895, at *6 (D.S.C. Oct. 11, 2023) (collecting cases), report and recommendation adopted, C/A No. 9:22-1641-BHH, 2023 WL 7130606 (D.S.C. Oct. 30, 2023).
As stated by District Defendants, and not disputed by Plaintiff, “South Carolina does not recognize a tort of harassment.” [ECF No. 22 at 2].
Accordingly, the undersigned recommends the district judge grant District Defendants' motion to dismiss, dismissing Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 for defamation and harassment.
Plaintiff also cites to the South Carolina criminal libel statute, SC Code Ann. § 16-7-150 (slander and libel), as well as definitions provided in S.C. Code Ann. § 16-3-1700. These statutes hold no remedy for Plaintiff, where criminal statues do not give rise to a civil cause of action and where the South Carolina criminal libel statute cited by Plaintiff has been declared unconstitutional. See Palmetto Ford, Inc. v. First S. Ins. Co., No. 92-2350, 1993 WL 369248 (4th Cir. Sept. 22, 1993); Fitts v. Kolb, 779 F.Supp. 1502, 1519 (D.S.C. 1991). Additionally, Plaintiff states in briefing, but not in her complaint, and without explanation, that “[t]he Action of the Defendants violated the Plaintiffs Constitutional rights under the 5th, 6th, 8th, 10th and 11th amendments.” [ECF No. 17 at 22]. The court does not discern such violations.
2. Plaintiff's Motion to Amend/Correct the Complaint
Plaintiff's motion to amend her complaint largely repeats the allegations as found in her original complaint, but also alleges:
Defendants, acting under color of state law, violated Plaintiff's rights under the First Amendment . . . by restricting her ability to advise and assist by sending emails to parties involved within the DPH prehearing matters .... The plaintiffs FIRST Amendment Rights were Violated as there was an order placed by Murphy restricting the plaintiffs free speech in emails ....[See ECF No. 18, see also ECF No. 17 at 2-3 (Plaintiff arguing “DCSD administration . . . insisted that all correspondences and communications can only be shared and forwarded by the parents”)].
Although leave to amend shall be freely given when justice so requires, “[a] district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602-03 (4th Cir. 2010).
As stated above, LHO Murphy is entitled to judicial immunity, including the First Amendment claim Plaintiff seeks to introduce in her motion to amend. Additionally, Plaintiff cites to no case law, nor is the court aware of any, providing her the First Amendment right to send or receive emails to “accompany and advise” under 20 U.S.C. § 1415(h)(1).
To the extent that Plaintiff argues she possesses a First Amendment right to express her views in the context of a due process hearing, under 20 U.S.C. § 1415(h)(1), as stated above, South Carolina is not a state that that allows or the non-lawyer's role to extend beyond merely “accompanying and advising,” by permitting non-lawyers to “represent” parents or children in special education proceedings. And even if South Carolina were such a state, and parents exercised their right to elect for a public hearing, see 34 CFR § 300.512(c)(3), such a hearing would be public just as this court's hearings are public. But that does not grant a representative a First Amendment right to express his or her views, particularly on matters determined by the adjudicator to not be germane to the proceedings. See, e.g., Mezibov v. Allen, 411 F.3d 712, 717-18 (6th Cir. 2005) (lawyers do not have First Amendment rights to advocate positions in court because a courtroom is a nonpublic forum); In re Zeno, 504 F.3d 64, 66-67 (1st Cir. 2007) (same, citing cases).
For these reasons, the undersigned denies Plaintiff's motion to amend.
LHO Murphy also notes, and has provided supporting evidence, that “[t]here was no hearing at which Plaintiff was deprived of any purported right,” in that “[t]he Parents in the underlying case withdrew their due process request prior to hearing” and “never sought to appeal any of the Orders about which Plaintiff complains.” [ECF No. 19 at 5 (citing ECF No. 19-1)].
3. Plaintiff's Motion for Recusal
Plaintiff moves for recusal of the undersigned, as well as District Judge Sherri A. Lydon, arguing that she has been repeatedly assigned to these two judges in the various cases she has brought before this court and “that they are stonewalling the plaintiff[‘]s right to equal and fair access to an impartial federal justice system.” [ECF No. 17 at 22].
The Fourth Circuit has recognized that “there is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is.” Nakell v. Attorney Gen. of N.C. , 15 F.3d 319, 325 (4th Cir.1994) (citations and quotations omitted); see also Code of Judicial Conduct, Canon 3A(2) (“A judge should hear and decide matters assigned, unless disqualified ”). As the Ninth Circuit summarized:
This proposition is derived from the “judicial [p]ower” with which we are vested. See U.S. Const. art. III, § 1. It is reflected in our oath, by which we have obligated ourselves to “faithfully and impartially discharge and perform [our] duties” and to “administer justice without respect to persons, and do equal right to the poor and to the rich.” 28 U.S.C. § 453. Without this proposition, we could recuse ourselves for any reason or no reason at all; we could pick and choose our cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring . . .
.
It is equally clear from this general proposition that a judge may not sit in cases in which his “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); see also id. § 455(b) (enumerating circumstances requiring recusal). We are as bound to recuse ourselves when the law and facts require as we are to hear cases when there is no reasonable factual basis for recusal. See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179 (9th Cir.2005); Nichols v. Alley, 71 F.3d 347, 352 (10th Cir.1995). If it is a close case, the balance tips in favor of recusal. United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993).United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) (alterations and emphasis in original).
Recusal of federal judges is generally governed by 28 U.S.C. § 455. That statute provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). In the Fourth Circuit, this standard is analyzed objectively by considering whether a person with knowledge of the relevant facts and circumstances might reasonably question the judge's impartiality. United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). For purposes of this statute, the hypothetical “reasonable person” is not a judge, because judges, who are trained to regard matters impartially and are keenly aware of that obligation, “may regard asserted conflicts to be more innocuous than an outsider would.” United States v. DeTemple, 162 F.3d 279, 287 (4th Cir.1998).
Section 455(a) does not require recusal “simply because of unsupported, irrational or highly tenuous speculation,” or because a judge “possesses some tangential relationship to the proceedings.” Cherry, 330 F.3d at 665 (internal quotation omitted). The Fourth Circuit recognizes that overly cautious recusal would improperly allow litigants to exercise a “negative veto” over the assignment of judges simply by hinting at impropriety. DeTemple, 162 F.3d at 287. Recusal decisions under 28 U.S.C. § 455(a) are “fact-driven and may turn on subtleties in the particular case.” Holland, 519 F.3d at 912.
The statute provides a list of specific instances where a federal judge's recusal is mandated, regardless of the perception of a reasonable observer. 28 U.S.C. § 455(b). For instance, a judge is disqualified “[w]here he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1).Bias or prejudice must be proven by compelling evidence. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1025 (7th Cir.2000). Additionally, a judge should recuse herself if:
Similarly, 28 U.S.C. § 144 mandates recusal when a party to a “proceeding in a district court” demonstrates by a timely and sufficient affidavit that the “judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.” The procedures for seeking recusal under 28 U.S.C. § 144 differ from those under § 455(b)(1). Furthermore, where actual bias is demonstrated pursuant to 28 U.S.C. § 144, recusal will generally also be required in any event under 28 U.S.C. § 455(a)'s standard of an appearance of bias. Therefore, the standard stated herein focuses on 28 U.S.C. § 455.
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.28 U.S.C. § 455(b)(5).
Here, Plaintiff argues for recusal because other of her cases have been assigned to the undersigned and Judge Lydon. The applicable local civil rule provides as follows:
Pro Se Litigants With Prior Cases. New cases filed by pro se litigants with prior cases shall, if possible, be assigned to the
magistrate judge and district judge to whom the prior case was assigned unless the prior case was assigned as a related case.Local Civ. Rule 73.02(C)(6) (D.S.C.).
Plaintiff also requests “the court's written plan . . . with regard to the system for assigning cases.” [ECF No. 17 at 22]. South Carolina comprises a single federal district. 28 U.S.C. § 121. Plaintiff's prior cases arose from York and Lancaster Counties. Plaintiff also filed this case in Lancaster County. [ECF No. 1-1]. York and Lancaster are both within the Rock Hill Division and are both within Area B typically assigned to the federal judges in Columbia. See 28 U.S.C. § 121(7); https://www.scd.uscourts.gov/Jury/ guideline.asp#area (last visited January 23, 2024).
Plaintiff also alleges that the judges are “stonewalling the plaintiffs right to equal and fair access to an impartial federal justice system.” [ECF No. 17 at 22]. Plaintiff offers no specific allegation in support of her position. This allegation is insufficient to warrant recusal, and the motion is denied as to the undersigned.
The court also rejects Plaintiff's argument that Jefferson and Newman should be required to secure their own counsel. [ECF No. 17 at 21 (“It is not the taxpayers responsibility to supply a defense attorney for contracted employees of the district.”)]. The undersigned agrees with District Defendants' counsel that “Plaintiff is essentially requesting that [counsel] be disqualified from representing Defendants Newman and Jefferson while representing the District” and that “[t]here is no bases for this motion.” [ECF No. 23 at 1].
4. Plaintiff's Motion to Appoint Counsel
There is no right to appointed counsel in civil cases. Cf. Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). While the court is granted the power to exercise its discretion to appoint counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971), such appointment “should be allowed only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Plaintiff has not shown that any exceptional circumstances exist in this case. After a review of the file, the court has determined there are no exceptional or unusual circumstances presented that justify the appointment of counsel, nor would Plaintiff be denied due process if an attorney were not appointed. Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984).
5. LHO Murphy's Motion for Permanent Injunction
On September 18, 2023, LHO Murphy filed a motion for permanent injunction, arguing that Plaintiff has now filed five lawsuits “which have served no purpose other than to provide a platform for Plaintiff's conspiracy theories, baseless accusations, and political views,” seeking the following relief:
For the reasons set forth above, the Undersigned requests an injunction against Plaintiff filing any civil litigation against him, in any Court, without leave of this Court. The Undersigned further requests a provision that Plaintiff must file any future action naming the Undersigned in this Court. Plaintiff requests that the Court warn Plaintiff that any violation of the pre-filing injunction will subject Plaintiff to the contempt powers of this Court. This injunction should not preclude Plaintiff from filing any claim or proceeding with law enforcement or any state or federal agency.[ECF No. 12 at 2, 13, see also ECF No. 16].
Plaintiff failed to timely respond to this motion, and on November 8, 2023, the court issued an order, directing Plaintiff to file a response, noting the Fourth Circuit's direction that “before a judge issues a prefiling injunction under 28 U.S.C. § 1651(a), even a narrowly tailored one, he must afford a litigant notice and an opportunity to be heard.” Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004). Plaintiff eventually filed her response, in conjunction with her motion to appoint counsel, addressed above, on January 8, 2024. [See ECF No. 34].
Plaintiff previously attempted to file responses on November 20, 2023, and November 29, 2023 [ECF Nos. 26, 30], but the documents submitted by Plaintiff were returned to her with direction to properly sign her filings. [See ECF Nos. 28, 32].
As explained by the Fourth Circuit:
In determining whether a prefiling injunction is substantively warranted, a court must weigh all the relevant circumstances, including (1) the party's history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits; (2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass; (3) the extent of the burden on the courts and other parties resulting from the party's filings; and (4) the adequacy of alternative sanctions.Cromer., 390 F.3d at 818. The Fourth Circuit also provided the added caution that “a judge should not in any way limit a litigant's access to the courts absent exigent circumstances, such as a litigant's continuous abuse of the judicial process by filing meritless and repetitive actions,” also noting as relevant here, that “use of such measures against a pro se plaintiff should be approached with particular caution and should remain very much the exception to the general rule of free access to the courts.” Id. at 817-18 (citations omitted).
As to the first factor, the court has recounted Plaintiff's filings in this court above, and the undersigned finds this factor weighs in favor of granting LHO Murphy's motion. Plaintiff has repeatedly filed or attempted to file suit against LHO Murphy challenging his actions related to his role as a LHO for the South Carolina Department of Education. In support of this factor, LHO Murphy recounts at length the baseless accusations that Plaintiff has leveled against not just him but multiple other state employees as well as the judges involved in her cases, only some of which the court includes here:
Plaintiff's assertions in these cases go way beyond vexatious. In Benson I, for example, Plaintiff accused the active hearing officers in South Carolina of “conspiracy to embezzle IDEA funds.” Benson I, Motion for Reconsideration [DE 121] at 3 (filed May 4, 2023) .... “Vexatious” does not begin to explain the baseless nature of Plaintiff's money laundering allegations against the Undersigned, and others:
Plaintiffs claim defendants are Evading Reporting Requirements to avoid disclosure of their activities, money launderers sent forth a swarm of subordinates (“smurfs”)who scurried from bank to
bank where they engaged in layered or structured transactions so that no single transaction exceeded the threshold amount of the financial institution's reporting requirements.
Lancaster County Case, DE 1 at 37 ....[ECF No. 12 at 4-6, see also id. at 8 (“Plaintiff's abuse of this Court's process is surpassed only by her misconduct in IDEA hearings .... Yet even a cursory review of the public repository shows that Plaintiff's misconduct is not only demonstrated in front of the Undersigned. Other local hearing and state review officers have also admonished Plaintiff for her continued abuse of the process.”)].
As explained by LHO Murphy: “Apparently, a “smurf” is a money launderer who conceals his or her conduct by breaking up large sums of money into smaller amounts that are deposited in various institutions. https://www.investopedia.com/termssmurf.asp It is not clear who allegedly ‘scurried from bank to bank,' or who our ‘subordinates' are.” [ECF No. 12 at 6. n.10].
As to the second factor, LHO Murphy argues as follows:
Plaintiff could never establish a good-faith basis for the delusional allegations she has levied at the Undersigned and others. As to the single allegation about the Undersigned, Plaintiff cannot seriously contend that her reference to her altercation with district personnel and the Sheriff's Office has anything to do with the Undersigned. And no fair reading of the two Orders the Undersigned issued evinces any “claim” regarding the truth of either party's argument about what happened. As the Orders plainly state, the Undersigned did not want to hear about it. Nothing in the versions of either party was seemingly relevant to whether the district denied the student a free and appropriate public education (“FAPE”).
The irony of Plaintiff's position is trying to sue the Undersigned for confining himself to the appropriate scope of his duties as an IDEA hearing officer. Plaintiff cannot contend, in good faith, that the Undersigned said or did anything other than to act as a hearing officer. Thus, she cannot make any good-faith allegation that could result in liability.[ECF No. 12 at 11].
The undersigned finds that this factor also weighs in favor of LHO Murphy. Plaintiff's filings in the IDEA proceedings below and those before this court indicate her insistence on litigating and relitigating matters unrelated to the issues at hand, indicating a motive to harass and an absence of good faith. Just as Plaintiff sought LHO Murphy to address the May 2023 dispute that was unrelated to the matter at hand, the FAPE of the student, in this court Plaintiff has submitted argument and evidence concerning, for example, the treatment of her own child in the South Carolina public education setting-treatment that was the subject of previous cases filed by her and not the subject of the instant case-including accusations against LHO Murphy in those unrelated cases. [See, e.g., ECF No. 17-22)].
The third factor weighs in favor of LHO Murphy, as well. The court and the state of South Carolina, as well as LHO Murphy specifically, have been burdened by Plaintiff's litigation and have expended significant time and resources sifting through Plaintiff's extensive allegations and evidence to find relevant materials for each case.
The final factor too weighs in favor of LHO Murphy's motion, particularly as the requested injunction is narrowly tailored. It does not appear that lesser sanctions would be adequate in this case, and this conclusion is buttressed by Plaintiff's response to LHO Murphy's motion.
Plaintiff does not directly address any of the arguments presented by LHO Murphy in his motion, but instead recounts at length, as she has previously in her other filings in this case, her allegations against him:
Brian P Murphy and HMW law firm continue to follow the Plaintiff around the state of South Carolina as she tried to continue to advocate for the rights of students with disabilities. The Plaintiff has and will continue to advise and assist parents all over the state who are desperate for someone to help them in a broken and corrupt system ....
Should Mr Murphy continue to insert himself as the LHO without a Petitioner/ parents approval and they are my client, we will continue to claim that the SCDOE or SEA through IDEA and Section 504, is not supervising any of its school districts and the proper process of the appointments of LHO's. A complaint with OCR education will continue to be filed. If Mr Murphy does not wish to be sued anymore then he should negate from performing unlawful and unethical acts denying the Parents rights to impartial due process. The Court denying the right for the plaintiff to file additional lawsuits should they arise denies the plaintiff of her right to due process for each and every complaint brought forth as they are ALL different, with different districts and different parents.[ECF No. 34 at 13-14].
Based on Plaintiff's representations, it appears she concedes that she has repeatedly sued LHO Murphy for his actions taken as a LHO and that she intends to continue to do so in the future, without acknowledging, much less addressing, arguments made by LHO Murphy or direction provided by the court while also failing to utilize the appeals process provided under the IDEA. Cf. McMahon v. F & M Bank-Winchester, No. 93-2392, 1994 WL 719695 (4th Cir. Dec. 30, 1994) (“Finally, given McMahon's single-minded quest, we are convinced that any other sanction would not be adequate in this instance.”).
Based on the above, the undersigned recommends the district judge grant LHO Murphy's motion for permanent injunction.
III. Conclusion and Recommendation
Plaintiff's motions to amend/correct the complaint and to appoint counsel are denied and Plaintiff's motion to recuse is denied in part as to the undersigned. [ECF Nos. 17, 18, 26, see also ECF Nos. 30, 34]. The undersigned recommends the district judge grant District Defendants' and LHO Murphy's motions to dismiss [ECF Nos. 9, 13], dismissing Plaintiff's claims brought pursuant to 42 U.S.C. § 1983 with prejudice where her claims are not “completely devoid of merit” but where defects in her federal claims cannot be cured by amendment. See Shing v. MD Developmental Disabilities Admin., 698 Fed.Appx. 70, 71-72 (4th Cir. 2017).
Still pending is Plaintiff's motion to recuse the district judge. [ECF No. 17].
The undersigned further recommends the district judge grant LHO Murphy's motion for permanent injunction [ECF No. 12], directing Plaintiff that (1) she may not file civil litigation against LHO Murphy in any court without leave of this court, (2) she must file any future actions naming LHO Murphy in this court, and (3) any violation of this pre-filing injunction will subject her to the contempt powers of this court.
IT IS SO RECOMMENDED AND ORDERED.