Opinion
No. 7:20-CV-187-BO
11-23-2020
TOMMY LEE HERRING, Plaintiff, v. CLOUD BASED, NEW HANOVER COURT, MARGARET HAGETT, and N.C. MEDICAL BOARD, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition . . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
A. Factual Background
In his proposed complaint, consisting of a completed complaint form [DE-1-1] and an attachment [DE-1-2], as well as a separately filed document titled "Evidence in Support of Case," [DE-4], plaintiff alleges as follows: on September 25, 1980, William H. Stephenson awarded him $250,000, but he never got a penny. [DE-1-1] at 4. He states that "somebody was talking" and he lost his house because of "this rac[i]st act." Id. Plaintiff alleges that on September 21, 1989, a test was done at the emergency room, and when he got his medical record on February 11, 1997, it said that he had AIDS. Id. at 5. On April 6, 1980, someone refused to give Plaintiff his medical records. Id. He went to court on June 19, 1980, but no records were produced. Id. There was a subpoena, but "the court did not do their job." Id. Plaintiff additionally alleges that Governor James Hunt, Jr. got a copy of Plaintiff's medical record without his signature on February 5, 1980. Id. Plaintiff states that he was injected with the AIDS virus, and Dr. Richard Scher put a bug in his right ear that is still in his body. Id. On July 8, 2005, Plaintiff hurt his back while working, and New Hanover Hospital should have had the medical records that he was supposed to take to his hearing on September 25, 1980. Id.
The attachments to Plaintiff's complaint form include a letter from Dr. Beth Goldstein, a dermatologist, explaining Plaintiff's diagnoses and drug sensitivities; a letter written by Plaintiff on October 5, 2020 stating that he has the proof he needs to sue North Carolina on racist charges, someone had changed the dates of his hearing, on September 25, 1980 Deputy Commissioner Angela Bryant held court, and Plaintiff has never seen her; a letter written by Plaintiff on June 19, 2019 explaining that the lawsuit concerns a cover up of the AIDS virus being injected into Plaintiff's spine on September 21, 1979; a subpoena issued to New Hanover Memorial Hospital on June 16, 1980; a website containing the biography of General Assembly Representative Angela R. Bryant; a January 31, 2007 medical record from New Hanover Community Health Center explaining that Plaintiff complained of worms in his brain; a memorandum to Plaintiff's personnel file at Orange Recycling Services, Inc. dated August 14, 1997 stating that the company could not guarantee that a position would be held open to Plaintiff after his ninety day medical leave of absence; a request that Cape Fear Memorial Hospital release Plaintiff's radiology report to himself; an x-ray report dated September 21, 1979 stating that a spinal needle was inserted into Plaintiff's spine; the first page of a 1981 North Carolina Industrial Commission opinion that was an appeal of Plaintiff's September 25, 1980 award of compensation; and a September 12, 2005 invoice for an office visit with Dr. Richard Scher. [DE-1-2].
The supplement to the complaint filed on October 14, 2020 consists of a cover letter from Plaintiff stating that Governor James B. Hunt, Jr. got Plaintiff's medical records without his permission, New Hanover Hospital had Plaintiff sign a blank medical release so that the governor knew about the AIDS virus that was inserted into Plaintiff's spine, and a bug was put in Plaintiff's right ear without his permission that produced worms in his brain; a December 12, 1998 invoice from Wayne Heart and Internal Medicine; a February 24, 2002 discharge form from Duke University Hospital Emergency Department; a September 25, 1980 North Carolina Industrial Commission opinion by Deputy Commissioner Angela R. Bryant finding that Plaintiff sustained an injury by accident arising out of and in the course of his employment and awarding him temporary total disability and medical expenses; a September 21, 1979 x-ray report; a November 7, 1979 medical release form; a December 20, 2006 drug prescription; a May 28, 1997 letter from Dr. Beth Goldstein regarding Plaintiff's diagnoses; Duplin General Hospital Emergency Department discharge instructions dated December 11, 1999; a medical record from August 3, 2001; a medical record from July 2005; a pharmacy invoice from March 14, 1997; an August 28, 2017 letter from the North Carolina Medical Board explaining that they reviewed Plaintiff's complaint against Dr. Scher and found no violation of the North Carolina Medical Practice Act; a November 16, 2000 report from Wayne Heart and Internal Medicine; a December 9, 1998 record from the Wayne Memorial Hospital Emergency Department; a September 11, 2014 Aflac request for reimbursement form for eye glasses provided on October 18, 1996; a memo from DeKalb Medical about the risks of smoking; a November 26, 1996 record from Durham Orthopedic Clinic; and two December 1998 invoices from Wayne Memorial Hospital. [DE-4, -4-1].
B. Legal Analysis
Plaintiff states that his claims are brought pursuant to 42 U.S.C. § 1983. [DE-1-1] at 3. 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. Trani, 191 F.3d 499, 506 (4th Cir. 1999)).
It is recommended that Plaintiff's claims be dismissed because the claims are time-barred. "There is no statute of limitations provided in § 1983; rather, federal courts apply the forum state's 'most analogous' statute of limitations, generally the statute applicable to personal injury actions." Fayemi v. Offerman, 99 F. App'x 480, 481 (4th Cir. 2004) (citing Owens v. Okure, 488 U.S. 235 (1989); Wilson v. Garcia, 471 U.S. 261, 276 (1985)). "In North Carolina, the statute of limitations for actions under 42 U.S.C. § 1983 (2000) is three years." Id. (citing Love v. Alamance Cty. Bd. of Educ., 757 F.2d 1504, 1506 (4th Cir. 1985)); see Brooks v. Stanley, No. 7:19-CV-195-FL, 2020 WL 2430947, at *4 (E.D.N.C. May 12, 2020) (noting that a three year "statute of limitations applies to all § 1983 claims). Additionally, "[u]nder federal law, a cause of action accrues and the statute of limitation commences 'when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.'" Fayemi, 99 F. App'x at 481 (citing Nasim, 64 F.3d at 955).
The court may raise a statute of limitations defense sua sponte when a complaint is filed in forma pauperis pursuant to 28 U.S.C. § 1915. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing Nasim, 64 F.3d at 953-54); Hall v. Cumberland Cty., No. 5:17-CV-348-FL, 2017 WL 5986468, at *3 (E.D.N.C. Sept. 14, 2017), adopted by 2017 WL 5973406 (E.D.N.C. Dec. 1, 2017).
Here, it appears that Plaintiff's cause of action accrued more than three years prior to the filing of his proposed complaint. Plaintiff's claims are based on a 1980 Industrial Commission award and a 1981 appeal; a September 1979 procedure during which Plaintiff was injected with the AIDS virus; a 1980 incident where Plaintiff was not given his medical records for use in court; a February 1980 incident where the governor was given Plaintiff's medical records without Plaintiff's consent; a 2005 injury while working; and a 2007 medical record indicating that there were worms in Plaintiff's brain. Even if those alleged facts are sufficient to state a claim for a constitutional violation by a person acting under color of state law, any cause of action would have accrued more than three years before the filing of Plaintiff's proposed complaint. Accordingly, it is recommended that Plaintiff's complaint be dismissed as time barred.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiff's complaint be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until December 7, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 23rd day of November, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge