Opinion
5:19-CV-129-D
02-20-2020
RANDY DINGLE, Plaintiff, v. BENJAMIN KHAN, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
This pro se case is before the court, in part, for a frivolity review of the complaint (D.E. 1) filed by plaintiff Randy Dingle ("plaintiff"). It is also before the court on 21 motions:
(1) 13 motions to dismiss by, respectively, defendants Two Men and a Truck (D.E. 13); Natasha Barone ("Barone") and Michael B. Stein ("Stein") (D.E. 16); Mickey Locklear, Greg Morrison, and Terry Ray (D.E. 41); William Hill ("Hill") (D.E. 48); Bragg Mutual Credit Union (D.E. 75); Allen Kerr (D.E. 81); Benjamin Lovell (D.E. 85); Richard M. Hutson, II (D.E. 87); Shapiro & Ingle, LLP (D.E. 92); Joseph N. Callaway ("Judge Callaway") and Benjamin Khan ("Judge Khan") (D.E. 94); Timothy J. Peterkin ("Peterkin") (D.E. 98); Mitch Edwards (D.E. 100); and Gregg Edwards (D.E. 103);
(2) a motion to strike by Two Men and a Truck (D.E. 112);
(3) plaintiff's 5 motions for entry of default as to defendants Alonzo Dingle (D.E. 116); Bruce Bullock (D.E. 117); Jacquelyn Faye Carter (D.E. 118); Patricia Ellen Watson Dingle (D.E. 119); and Natashia Dingle (D.E. 120); and
(4) plaintiff's 2 motions for statements to be entered into evidence (DE. 127, 128).
As set out below, it will be recommended, based on the frivolity review, that plaintiff's complaint be dismissed for lack of subject matter jurisdiction and, alternatively, failure to state a claim upon which relief can be granted. It will be further recommended that each of the pending motions before the court be denied as moot.
I. PLAINTIFF'S ALLEGATIONS
In this action, commenced on 4 April 2019, plaintiff asserts claims against 22 defendants that appear to arise from or relate to other court proceedings involving plaintiff. See generally Compl. (D.E. 1). Specifically, he alleges as follows:
Plaintiff "became a target" starting in April of 1985. Id. at 11. He contends that Jim Spell, a real estate broker, allowed the Cumberland County Courthouse to assume the V.A. loan on plaintiff's home in Fayetteville, North Carolina and has been committing fraudulent acts to this day. Id.
Citations to the complaint are to the page numbers assigned by the court's electronic CM/ECF filing system.
Jim Spell and Cumberland County Courthouse are not parties to this action.
In 2016, Judge Callaway disallowed a claim made by Ditech Financial LLC, presumably in a bankruptcy proceeding, which "was spearheaded by Michael Stein and Natasha Barone of the Hutchens Law Firm, Gregg Edwards, Timothy Peterkin (attorney), Cumberland County Sheriff Department, Cumberland County House, Judge Talmage S. Baggett, Ellen B. Hancox, (Clerk of Court), William Hill attorney for North State, Mitch Edwards owner of Edwards Auto Sales." Id. at 12. The claim was disallowed by Judge Callaway because it was not a secure loan. Id. at 13. Judge Callaway gave Patricia Ellen Watson Dingle a voucher for an automobile at a low interest rate. Id.
Stein, an attorney, had full knowledge that Conseco Financial, Greentree Financial, and Ditech Financial LLC were manufacturing and tampering with evidence. Id. at 11. Judge Khan was aware of the problems in the proceedings, but continued "to commit fraud, abuse of authority, racketeering, unlawful determinations, and human trafficking." Id.
Conseco Financial, Greentree Financial, and Ditech Financial LLC are not parties to this action.
In August of 2017, all defendants in the action failed to uphold their AO 153 pocket card with integrity and violated their fiduciary duties. Id. at 12. Defendants "attempted to extort perjury, filing false claims, trying to embezzle, committing bribery, placing or filing of unlawful lien, levy, burden, liability, garnishment, encumbrance of attachment, unfounded accusation and unlawful arrest, and duplicating a United State Department of Defense Identification Card." Id.
Plaintiff appears to be referring to the oath of attorney admission form, AO 153, issued by the Administrative Office of the United States Courts. The court notes, however, that the majority of defendants do not appear to be attorneys.
Judge Baggett issued an order for eviction, and in September of 2017, Cumberland County Sheriff Department deputies came with guns drawn. Id. at 14. Plaintiff called attorney Peterkin, who called the attorney for the Sheriff Department to advise that plaintiff filed for bankruptcy the day before. Id.
Judge Baggett is not a party to this action.
The only thing plaintiff owned to take into the bankruptcy proceedings was a truck he purchased in June of 2017. Id. He purchased the truck from Mitch Edwards at Edwards Auto Outlet, Inc. Id. Not only would Mitch Edwards not accept plaintiff's payoff amount, but he duplicated the United States Department of Defense identification cards for plaintiff and plaintiff's wife, which is a violation of law. Id. at 15. Mitch Edwards did this so that he could accrue more interest on the auto loan. Id. North State's attorney, Hill, similarly stated that plaintiff owed a higher balance than he actually did. Id.
In August of 2018, orders issued by Sheriff Ennis Wright and Judge Baggett forced plaintiff to be evicted from his home. Id. at 16. The deputies completed the eviction at gun point. Id. Plaintiff has not seen his wife since the time of the eviction, because she was either kidnapped or committed alienation of affection. Id. at 16, 18.
Ennis Wright is not a party to this action.
In September of 2018, Natashia Dingle, Alonzo Dingle, and Jacquelyn Faye Carter, with assistance from Peterkin, sent a letter to Judge Kahn indicating that plaintiff and his wife had some form of mental issue. Id. at 16.
Plaintiff contends that the court has subject matter jurisdiction under 18 U.S.C. § 241 (relating to criminal conspiracy to violate constitutional rights) and § 242 (relating to criminal deprivation of rights under color of law). Id. at 9. He seeks monetary relief in the amount of $90 million "in lawful currency of US Silver or Gold according to the Coinage Act of 1792." Id. at 20.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
A case brought by a person who is proceeding in forma pauperis, that is, without prepaying filing fees, is subject to a frivolity review under 28 U.S.C. § 1915(e)(2)(B). Plaintiff did prepay the filing fee, and therefore this case is not subject to a frivolity review under § 1915(e)(2)(B). This case is, though, subject to a frivolity review pursuant to the inherent authority of the court to conduct such reviews. See Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) ("[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid."); Mills v. Greenville Cty., 586 F. Supp. 2d 480, 487 (D.S.C. 2008) ("Further, even though the full filing fee has been paid, the pro se and non-prisoner [plaintiff's] claims are also subject to an initial sua sponte review by the Court pursuant to the Court's inherent authority to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous."); see also Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 307 (1989) ("Statutory provisions may simply codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision." (dicta)).
While not controlling, Section 1915(e)(2)(B), as well as the case law interpreting it, offer useful guidance on the standards that should govern a frivolity review conducted, as here, pursuant to the court's inherent authority. Section 1915(e)(2)(B) provides that the court must dismiss a case if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If in a frivolity review under § 1915 the court determines that it lacks subject matter jurisdiction, the statute requires the court to dismiss the action. 28 U.S.C. § 1915(e)(2)(B)(i). More generally, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3).
One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). There are also statutes conferring jurisdiction for particular types of cases.
III. LACK OF SUBJECT MATTER JURISDICTION
As noted, plaintiff's complaint is subject to dismissal, in part, for lack of subject matter jurisdiction. There are two alternative bases for lack of subject matter jurisdiction.
A. Lack of Jurisdiction under 18 U.S.C. §§ 241 and 242
One basis is that the statutes upon which plaintiff expressly relies for subject matter jurisdiction, 18 U.S.C. §§ 241 and 242, both of which are criminal statutes, do not create private rights of action. See El Bey v. Celebration Station, No. 3:02CV461, 2006 WL 2811497, at *3 (W.D.N.C. 28 Sept. 2006) ("These provisions, [18 U.S.C. §§ 241, 242] however, do not give rise to a civil action for damages, and neither the plaintiff nor this Court has the authority to issue a criminal complaint."), aff'd, 242 F. App'x 917 (4th Cir. 2007). Because they do not, they cannot serve as a basis for subject matter jurisdiction. The complaint is subject to dismissal on this ground.
Section 241 reads in relevant part:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or18 U.S.C. § 241. Section 242 reads:
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.18 U.S.C. § 242.
B. Rooker-Feldman Doctrine
Even if plaintiff's claims were deemed to have been brought pursuant to 18 U.S.C. § 1983, the civil analogue to 18 U.S.C. §§ 241 and 242, see El Bey, 2006 WL 2811497, at *3, the court would still lack subject matter jurisdiction over most of them. Section 1983 provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: "(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law." Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D.N.C. 12 Apr. 2012) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). To show that a defendant acted under the color of state law, "'[t]he person charged must either be a state actor or have a sufficiently close relationship with state actors such that a court would conclude that the non-state actor is engaged in the state's actions.'" Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615-16 (4th Cir. 2009) (quoting DeBauche v. Irani, 191 F.3d 499, 506 (4th Cir. 1999)). If plaintiff were assumed to be proceeding under § 1983, the specific claims plaintiff could arguably be deemed to be asserting include claims for conspiracy, fraud, breach of fiduciary duties, intentional infliction of emotional distress, negligence, and other unlawful conduct in the foreclosure proceedings relating to his home and the associated eviction and bankruptcy proceedings.
The Rooker-Feldman doctrine would deprive the court of subject matter jurisdiction over any claims by plaintiff pursuant to § 1983 based on state proceedings. This doctrine bars federal courts from sitting "in direct review of state court decisions." District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482-84 (1983). "[T]he Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself." Davani v. Virginia Dep't of Transp., 434 F.3d 712, 713 (4th Cir. 2006) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). This doctrine also prohibits a district court from reviewing constitutional claims that are "inextricably intertwined" with a state court decision. Shooting Point, LLC v. Cumming, 368 F.3d 379, 383 (4th Cir. 2004). A constitutional claim is "inextricably intertwined" with a state court decision if "'success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.'" Id. (quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)); see also Curley v. Adams Creek Assocs., 409 F. App'x 678, 680 (4th Cir. 2011) (holding that Rooker- Feldman precluded subject matter jurisdiction over plaintiff's claim that the state court violated her due process rights by failing to give her notice before disposing of real property owned by her); Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997) (holding that a federal claim is "'inextricably intertwined' where 'in order to grant the federal relief sought, the federal court must determine that the [state] court judgment was erroneously entered or must take action that would render the judgment ineffectual'" (quoting Ernst v. Child and Youth Servs., 108 F.3d 486, 491 (3d Cir. 1997))).
In other words, Rooker-Feldman applies "when the federal action 'essentially amounts to nothing more than an attempt to seek review of [the state court's] decision by a lower federal court.'" Davis v. Durham Mental Health Devel. Disabilities Substance Abuse Area Auth., 320 F. Supp. 2d 378, 388 (M.D.N.C. 2004) (quoting Plyer v. Moore, 129 F.3d 728, 733 (4th Cir. 1997)). "The key inquiry is not whether the state court ruled on the precise issue raised in federal court, but whether the 'state-court loser who files suit in federal court seeks redress for an injury caused by the state-court decision itself.'" Willner v. Frey, 243 F. App'x 744, 747 (4th Cir. 2007) (quoting Davani, 434 F.3d at 718). "'[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights.'" Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).
In Smalley v. Shapiro & Burson, LLP, 526 F. App'x 231 (4th Cir. 2013), the Fourth Circuit ruled that the claims of borrowers challenging practices engaged in by defendants during foreclosure proceedings were barred by Rooker-Feldman. Specifically, in that case, the borrowers instituted a federal suit charging the substitute trustees with claims under the Racketeer Influenced and Corrupt Organizations Act, the Fair Debt Collection Practices Act, Fair Housing Act, and Civil Rights Act, arising from their practices of supporting foreclosures with false affidavits. 526 F. App'x at 235. The Fourth Circuit held that even though the plaintiffs were not seeking to "undo" the state court judgments foreclosing on their homes, their success would necessitate a determination that the judgments, which awarded legal fees and commissions in reliance on allegedly false affidavits, were erroneous. Id. at 236. In short, because it was the state court judgments that were the cause of plaintiffs' harm, the court held that the federal court action was barred by Rooker-Feldman. Id. at 237.
Here, the underlying theme in plaintiff's complaint is unlawful conduct in the foreclosure proceedings relating to his home and the associated eviction and bankruptcy proceedings. Determination in his favor of any claims relating to the state foreclosure or eviction proceedings, which would appear to constitute the bulk of his claims if brought under § 1983, could well require this court to find that completed foreclosure and eviction proceedings were conducted in an improper manner, produced an improper result, or both. The Rooker-Feldman doctrine prohibits this court from making such a determination. Plaintiff, of course, retains access to the state courts for pursuit of the relief he seeks with respect to the prior state proceedings. Because the bankruptcy proceedings are federal in nature, any claims based on those proceedings would not be subject to the Rooker-Feldman doctrine.
The court concludes that the Rooker-Feldman doctrine is implicated by plaintiff's claims challenging conduct in the foreclosure and eviction proceedings to the extent deemed brought under § 1983 and such claims are therefore subject to dismissal for lack of subject matter jurisdiction. See, e.g., Jones v. Wells Fargo Bank, N.A., No. CV 6:17-2486-BHH, 2018 WL 4203672, at *2 (D.S.C. 4 Sept. 2018) ("It is abundantly clear both that Plaintiff's instant claims are "inextricably intertwined" with the state court foreclosure matters, and that the vast majority of specific issues he raises have already been 'actually decided' in the state court cases."); Carmichael v. Irwin Mort. Corp., No. 5:14-CV-122-D, 2014 WL 7205099, at *3 (E.D.N.C. 17 Dec. 2014) ("This court, however, lacks subject-matter jurisdiction to sit in direct review of a North Carolina state foreclosure action."); Everette v. Peele, No. 5:14-CV-213-BO, 2014 WL 4961099, at *3 (E.D.N.C. 28 July 2014) ("Although Plaintiff is not explicitly requesting that the court vacate or 'undo' the state court's judgment of foreclosure, to grant relief on this claim would require a finding that the state court's judgment was in error. As such, this claim should be dismissed as barred by the Rooker-Feldman doctrine."), mem. & recomm. adopted, 2014 WL 4961102, at *1 (3 Oct. 2014); Ruiz v. Nationstar Mortg. LLC, No. 1:12CV272, 2013 WL 4519180, at *3 (M.D.N.C. 26 Aug. 2013) ("Plaintiff's remedy for these and the other alleged defects in the state foreclosure proceeding was to appeal through the state judicial system and then seek review in the Supreme Court of the United States. This Court lacks subject matter jurisdiction to review the state court's order."), aff'd, 556 F. App'x 271 (4th Cir. 25 Feb. 2014); Grantham v. Grayspencer, No. 5:11-CV-689-BO, 2012 WL 13019697 (E.D.N.C. 12 June 2012) (dismissing removed action and denying stay of state foreclosure proceedings pursuant to Rooker-Feldman doctrine).
IV. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
As noted, in the alternative to the lack of subject matter jurisdiction, failure of plaintiff's complaint to state a claim upon which relief can be granted subjects it to dismissal. There are three alternative bases for dismissal on this ground.
A. Absence of Cause of Action under 18 U.S.C. §§ 241 and 242
One basis is the fact, previously addressed in the context of lack of subject matter jurisdiction, that the criminal statutes upon which plaintiff expressly relies for his claims, 18 U.S.C. §§ 241 and 242, do not create private rights of action. See El Bey, 2006 WL 2811497, at *3. The claims therefore fail. The complaint is thereby subject to dismissal for failure to state a claim upon which relief can be granted. See Andrews v. Wolcott Rivers Gates, No. 3:14CV76-HEH, 2014 WL 3016483, at *2 (E.D. Va. 3 July 2014) (holding that plaintiff failed to state a claim upon which relief could be granted where his claim was asserted pursuant to a criminal statute that did not include a private right of action), aff'd, 587 F. App'x 75 (4th Cir. 2014).
B. Res Judicata and Collateral Estoppel
Alternatively, any claims by plaintiff under § 1983 are subject to dismissal pursuant to principles of res judicata and collateral estoppel. See Davani v. Virginia Dep't of Transp., 434 F.3d 712, 720 (4th Cir. 2006) (applying Rule 12(b)(6) standard to doctrines of res judicata and collateral estoppel); Toney v. LaSalle Bank Nat. Ass'n, 896 F. Supp. 2d 455, 464 (D.S.C. 2012), aff'd, 512 F. App'x 363 (4th Cir. 2013) ("Res judicata is an affirmative defense and is treated as a basis for dismissal under Fed. R. Civ. P. 12(b)(6)."); see also Smith v. Spears, No. CV 2:17-3384-PMD-BM, 2018 WL 4523201, at *3 (D.S.C. Feb. 8, 2018) ("While res judicata is ordinarily an affirmative defense, a court may sua sponte raise the issue of res judicata in special circumstances where the previous action was litigated in the same district court, or where all relevant data and legal records are before the court and judicial economy will be served by invoking res judicata sua sponte."), rep. & recomm. adopted, 2018 WL 2772668 (11 June 2018).
The res judicata doctrine precludes a party from asserting claims that have already been "'litigated to a final judgment by that party or such party's privies'" as well as "'any legal theory, cause of action, or defense which could have been asserted in that action.'" Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009) (quoting 18 James Wm. Moore et al., Moore's Fed. Practice § 131.10(1)(a) (3d ed. 2008)). "[B]y precluding parties in a subsequent proceeding from raising claims that were or could have been raised in a prior proceeding, '[r]es judicata . . . encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.'" Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004) (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979)).
The Fourth Circuit has articulated three elements that must be present for res judicata to prevent a party from raising a claim: "'(1) a judgment on the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a subsequent suit based on the same cause of action.'" Id. (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)). This third element "'does not turn on whether the claims asserted are identical,'" but rather on "'whether the suits and the claims asserted therein arise out of the same transaction or series of transactions or the same core of operative facts.'" Frank v. Home Depot, U.S.A., Inc., 481 F. Supp. 2d 439, 442-43 (D. Md. 2007) (quoting Pueschel v. United States, 369 F.3d 345, 355 (4th Cir. 2004)). Thus, res judicata may apply even when a different legal theory was pursued in the first action.
"A prior judgment on the merits binds the parties 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but [also] as to any other admissible matter which might have been offered for that purpose.'" Aliff, 914 F.2d at 43 (quoting Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 579 (1974)). Moreover, "actual knowledge of a potential claim at the time of the first suit is not required for res judicata to apply. If the claim existed at the time of the first suit and might have been offered in the same cause of action, then it is barred by res judicata from being brought in a subsequent suit." Id. at 43-44 (internal quotations omitted).
Relatedly, collateral estoppel, or issue preclusion, can serve to bar previously litigated matters. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (indicating that "certain affirmative defenses implicate important institutional interests of the court," such as collateral estoppel, "and may sometimes be properly raised and considered sua sponte"); Greathouse v. U.S. Attorney, No. 2:16-CV-06205, 2019 WL 2079465, at *3 (S.D.W. Va. 19 Apr. 2019) (noting that while issues of preclusion are an affirmative defense, a court may address such matters sua sponte in some circumstances), rep. & recomm. adopted, 2019 WL 2079766 (10 May 2019). Issue preclusion "'precludes relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate.'" Weinberger v. Tucker, 510 F.3d 486, 491 (4th Cir. 2007) (quoting Virginia Hosp. Ass'n v. Baliles, 830 F.2d 1308, 1311 (4th Cir. 1987)); Muhammad v. Lappin, No. CIV.A. 2:07CV18, 2009 WL 3063310, at *4 (N.D.W. Va. 23 Sept. 2009) ("Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)), aff'd, 379 F. App'x 308 (4th Cir. 2010). The elements necessary for collateral estoppel to apply are: (1) the issue subject to preclusion is identical to one litigated in another forum; (2) the relevant issue was actually decided in the prior litigation; (3) the determination was a "critical and necessary part" of the court's decision in the prior litigation; (4) the prior judgment was final and valid; and (5) the party had a "full and fair opportunity to litigate the issue" in the prior proceeding. Ramsay v. U.S. Immigration & Naturalization Serv., 14 F.3d 206, 210 (4th Cir. 1994).
Here, all elements of res judicata and collateral estoppel are met. Plaintiff filed a similar lawsuit in this court against several of the same defendants on 11 February 2019. Dingle v. Baggett, et al., No. 5:19-CV-34-D (E.D.N.C.) ("the prior lawsuit"). The allegations asserted by plaintiff in the instant litigation do not differ materially from those adjudicated in the prior lawsuit. See Compl. (D.E. 7), No. 5:19-CV-34-D. Specifically, the allegations in the prior lawsuit also relate to the July 2017 and August 2018 eviction proceedings. Id. at 6. He asserted in the prior lawsuit the same allegations about Judge Callaway disallowing the claim by Ditech Finance LLC and about Judge Baggett directing Sheriff Ennis Wright and Lieutenant Morrison to evict plaintiff and his wife from their residence. Id. at 7. Plaintiff also asserted claims against Peterkin for mishandling the bankruptcy proceedings before the trustee and Judge Khan. Id. at 9. The fact that plaintiff names in the instant litigation defendants not named in the prior lawsuit does not change the nature of the claims he is asserting, which are based on the same underlying factual allegations.
Further, in the prior lawsuit, the court allowed defendants' motions to dismiss (D.E. 58), finding that the Rooker-Feldman doctrine barred the court from sitting in review of the eviction order. 12 July 2019 Ord. (D.E. 58) 5, No. 5:19-CV-34-D. The court also held that plaintiff's claims pursuant to 18 U.S.C. §§ 241 and 242, the same claims asserted in this lawsuit, failed because neither statute creates a private right of action. Id. at 6.
All the claims plaintiff purports to assert in this litigation are therefore barred by the res judicata doctrine and collateral estoppel. This bar to plaintiff's claims subjects his complaint to dismissal for failure to state a claim upon which relief can be granted.
C. Deficient Pleading of Allegations in the Complaint
The other alternative basis for failure of the complaint to state a claim upon which relief can be granted is the deficient pleading of the allegations in the complaint. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D.N.C. 17 May 2016) ("[T]he principles requiring generous construction of pro se complaints are not without limits."), mem. & recomm. adopted, 2016 WL 3920213 (15 July 2016). Plaintiff's complaint exceeds the permissible bounds.
Specifically, plaintiff's allegations are frequently unintelligible, seemingly fanciful, and conclusory, devoid of clear factual support. They fail to make sufficiently clear what conduct is attributable to which defendant and, indeed, fail to allege any conduct by several defendants. Because of these deficiencies, plaintiff's complaint fails to state a claim upon which relief can be granted and subjects it to dismissal on that ground. 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.'"); Fetherson v. Blackmon, No. CV 0:16-3189-JFA-PJG, 2017 WL 1365114, at *2 (D.S.C. 9 Feb. 2017) (recommending dismissing as frivolous claims against defendant that are "conclusory and lack supporting facts"), rep. & recomm. adopted, 2017 WL 1344616 (12 Apr. 2017); Cush-El v. State, No. 1:16CV176, 2016 WL 1212427, at *2 (M.D.N.C. 10 Mar. 2016) (recommending dismissal of complaint wherein "[p]laintiff recites claims that consist largely of incomprehensible ramblings composed of commercial and legal doctrines"), rep. & recomm. adopted, 2016 WL 1228626 (28 Mar. 2016); Padilla v. Priest, No. 1:13-CV-287, 2013 WL 12156670, at *2 (E.D. Va. 25 June 2013) (dismissing case as frivolous where complaint was "devoid of any facts to support Plaintiff's allegations" and "contains precisely the type of naked assertions of wrongdoing which are unsupported by any factual enhancement and therefore necessitates dismissal"), aff'd, 543 F. App'x 353 (4th Cir. 2013).
V. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that:
1. Plaintiff's complaint be dismissed as frivolous; and
2. The pending motions before the court (D.E.13, 16, 41, 48, 75, 81, 85, 87, 92, 94, 98, 100, 103, 112, 116, 117, 118, 119, 120, 127, 128) be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation and Associated Orders be served on plaintiff or, if represented, her counsel. Plaintiff shall have until 5 March 2020 to file written objections to the Memorandum and Recommendation. The presiding District Judge must conduct his 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 a party does not file written objections by the foregoing deadline, 5 March 2020, plaintiff 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, subject to the District Judge's consideration of any separate memorandum plaintiff files on the issue of entry of a pre-filing injunction. In addition, plaintiff's failure to file written objections by the foregoing deadline will bar plaintiff 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).
SO ORDERED, this 20th day of February 2020.
/s/_________
James E. Gates
United States Magistrate Judge