Opinion
5:23-CV-98-BO
01-09-2024
LARENE HINTON, et al., Plaintiffs, v. RENEE WHITTENTON, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court, in part, on the motion [DE-6] and amended motion [DE-7] by plaintiff Larene Hinton (“plaintiff” or “Ms. Hinton”) to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1). As discussed below, the court also construes the motion and amended motion [DE-6; -7] as motions by plaintiff for appointment of counsel. This case is also before the court on 21 other motions, listed below:
Several of plaintiff's motions include duplicates of previous motions, see e.g., [DE-30] (which includes a duplicate of [DE-20] as an attachment [DE-30-4]).
a. Five (5) motions to dismiss filed by, respectively, defendants:
1. Sandra Broadwell Paye, Assistant Clerk of Superior Court (“Assistant Clerk of Court Paye”), and Renne Whittenton, Clerk of Superior Court (“Clerk of Court Whittenton”) [DE-9];
2. Assistant Clerk of Court Paye and Clerk of Court Whittenton [DE-14] (refiled to incorporate plaintiff's proposed amendment at [DE-12]);
3. Christopher Carr, Attorney (“Attorney Carr”) [DE-24];
4. Alfredia Waters and Derick Waters [DE-39]; and
5. Alfredia Waters and Derick Waters [DE-41] (refiled to incorporate plaintiff's proposed amendment at [DE-38]).
b. Twelve (12) motions filed by plaintiff seeking various amendments or supplements to her complaint, specifically motions to:
1. amend her complaint [DE-12];
2. add supplemental pleading regarding Christopher Carr [DE-28];
3. correct response in opposition and to amend complaint [DE-29];
4. continue [DE-30] (which represents a restatement of various claims);
5. change the nature of the suit [DE-44];
6. add supplemental pleadings [DE-45];
7. make correction and to include documents 33 and 48 regarding 48 [DE-49];
8. change cause from 42 U.S.C. §1981 back to 42 U.S.C. §1983 [DE-51]; and
9. change cause [DE-52];
10. to add attorney David E. McRae as an additional party [DE-54];
11. to add attorney David E. McRae as an additional party [DE-55];
12. to add attorney David E. McRae as an additional party [DE-60].
c. One (1) motion filed by plaintiff requesting that the court not dismiss this case [DE-46].
d. Three (3) additional ostensibly procedural or administrative motions filed by Ms.
Each motion to dismiss is supported by a memorandum of law. See [DE-10] (in support of [DE-9]); [DE-15] (in support of [DE-14]); [DE-25] (in support of [DE-24]); [DE-40] (in support of [DE-39]); [DE-42] (in support of [DE-41]). Defendants Alfredia Waters, Derick Waters also filed a reply [DE-47] to plaintiff's motion to not dismiss [DE-46].
Plaintiff expresses concerns in various filings, including [DE-56] and [DE-58], that the titles of her various filings in this court's docket do not accurately reflect the purpose of her motions and the relevant filings they are intended to modify. See [DE-56] (“The response to document 9 should have been ten as the following document, now document 20. The confusion is caused by having several documents in between doc. 9 and document 20. The message that I had stated got lost.”). Despite the inherent confusion caused by the sheer volume of the filings made by Ms. Hinton in this case, as well as the ambiguous titles she uses, the undersigned has liberally construed all of Ms. Hinton's motions and other filings in support of her claims, regardless of their titles in this court's docket or herein. Any characterization in this Order and Memorandum and Recommendation or otherwise that a particular motion modifies another should not suggest that the undersigned has failed to consider arguments in such filing that may be relevant to Ms. Hinton's complaints, her responses in opposition, and other filings.
Plaintiff also filed multiple responses in opposition (or equivalent filings) to defendants' motions to dismiss [DE-20; -31; -33; -34; -35; -36; -38; -48], which the court has also considered.
Hinton, including motions:
1. to accept late documents [DE-32];
2. to talk to the judges [DE-50]; and
3. for referral for referral judge [DE-53].
The above motions were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1).
For the reasons stated below, regarding the non-dispositive motions pending before the court, the undersigned ORDERS as follows:
1. Ms. Hinton's application [DE-6] and amended application [DE-7] to proceed in forma pauperis are DENIED;
2. Ms. Hinton's motions to appoint counsel [DE-6, -7] are DENIED;
3. Ms. Hinton's motions to amend or supplement her complaint (or other filings) [DE-12, -28, -29, -30, -44, -45, -49, -51, -52] are GRANTED; and
4. Ms. Hinton's motions to add Attorney David E. McRae [DE-54, -55, -60] as a defendant are DENIED.
For the reasons stated below, the undersigned RECOMMENDS that:
1. the Amended Motion to Dismiss of Assistant Clerk of Court Paye and Clerk of Court Renne Whittenton [DE-14] be GRANTED and all claims against Assistant Clerk of Court Paye and Clerk of Court Renne Whittenton be DISMISSED;
2. the Motion to Dismiss of Attorney Carr [DE-24] be GRANTED and all claims against Attorney Carr be DISMISSED;
3. the Amended Motion to Dismiss of Alfredia Waters and Derick Waters [DE-41] be GRANTED and that all claims against Alfredia Waters and Derick Waters be DISMISSED;
4. any claims that Ms. Hinton attempts to bring on behalf of The James Roger Elliott's Heirs be DISMISSED WITHOUT PREJUDICE; and
5. all remaining motions [DE-9, -32, -39, -46, -50, and -53] be DENIED AS MOOT.
ORDERS ON NON-DISPOSITIVE MOTIONS
I. IN FORMA PAUPERIS MOTIONS
To qualify for in forma pauperis status, a person must show that she “cannot because of [her] poverty pay or give security for the costs . . . and still be able to provide [herself] and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). Ms. Hinton submitted an application [DE-6] and amended application [DE-7] to proceed in forma pauperis after having already paid the filing fee. If Ms. Hinton had submitted her application to proceed in forma pauperis before paying a filing fee, her complaint would have been subject to a frivolity review before summonses were issued for each of the defendants. See 28 U.S.C. § 1915(e)(2)(B).
Here, the defendants have counsel who have made notices of appearances on their behalf and have made numerous filings in response to Ms. Hinton's complaints and have had to review a myriad of other filings. Accordingly, while the undersigned notes Ms. Hinton's limited financial means as evidenced by her applications to proceed in forma pauperis [DE-7-1], he will not now confer on Ms. Hinton the benefits of the in forma pauperis status when the associated protections are now unavailable. Cf. Willis v. Postmaster Gen., No. CIV. A. 88-489-N, 1988 WL 168369, at *1 (E.D. Va. Oct. 20, 1988) (denying in forma pauperis plaintiff's motion for return of the partial fee that he was required to pay).
Accordingly, as Ms. Hinton has already submitted the filing fee and the summonses have been served on the defendants, Ms. Hinton's application and amended application to proceed in forma pauperis [DE-6; -7] are DENIED.
II. MOTIONS FOR APPOINTMENT OF COUNSEL
In Ms. Hinton's application and amended application to proceed in forma pauperis she appears to request appointment of counsel. See [DE-7] (“Motion . . . [t]o appoint me a lawyer to handle my case.”). The court, therefore, construes the application and amended application to also be motions by plaintiff for appointment of counsel.
No right to counsel exists in civil cases absent exceptional circumstances. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The presence of “exceptional circumstances” depends upon “the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989) (citation omitted); see also Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (“If it is apparent . . . that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him.”).
Ms. Hinton has failed to demonstrate that this case is one in which exceptional circumstances merit appointment of counsel. As discussed below, Ms. Hinton's allegations do not demonstrate that she has a colorable claim over which this court has jurisdiction, and the detail of Ms. Hinton's filings demonstrate her ability to proceed pro se. Accordingly, the court DENIES Ms. Hinton's motions to appoint counsel [DE-6, -7].
III. MOTIONS TO AMEND OR SUPPLEMENT PLEADINGS
Ms. Hinton files twelve motions that are construed by the court to be motions to amend or supplement her complaint (or other filings) [DE-12, -28, -29, -30, -44, -45, -49, -51, -52, -54, -55; 60]. See Finfrock v. Jordan, 105 F.3d 660 (7th Cir. 1996) (noting that “a true amended complaint . . . [amends] the original complaint-and . . . a supplemental complaint[] add[s] new defendants and claims). The first nine filings seek to add or amend claims [DE-12, -28, -29, -30, -44, -45, -49, -51, -52], whereas the last three seek to add an additional defendant [DE-54, -55; -60].
Pursuant to Fed.R.Civ.P. 15(a), leave to amend “should [be] freely [given] when justice so requires.” Here, the amendments and supplements are unopposed. While the volume of Ms. Hinton's filings and amendments lead to a certain degree of confusion, the court finds that the additional information provided in the first nine amendments and supplements [DE-12, -28, -29, -30, -44, -45, -49, -51, -52] facilitates the resolution of this case on its merits. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.”). However, to the extent that Ms. Hinton intended to raise in her numerous filings claims beyond those discussed below, the undersigned does not discern any cognizable claims beyond these. B.D. ex rel. Dragomir v. Griggs, No. 1:09-CV-439, 2010 WL 2775841, at *7 (W.D. N.C. July 13, 2010), aff'd, 419 Fed.Appx. 406 (4th Cir. 2011) (noting that the court “is not obligated, even for a pro se litigant, to comb through volumes of documents searching for claims.”); see also Padilla-Ruiz v. Commc'n Techs., Inc., 793 Fed.Appx. 200, (Mem)-201 (4th Cir. 2020) (“A party waives an argument . . . by failing to develop its argument-even if its brief takes a passing shot at the issue.”) (quoting Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017)).
Accordingly, Ms. Hinton's motions to amend or supplement her complaint (or other filings) [DE-12, -28, -29, -30, -44, -45, -49, -51, -52] are GRANTED, Ms. Hinton files three motions seeking to join Attorney McRae as an additional party in this case [DE-54; -55; -60]. Plaintiff's claims against Attorney McRae are derivative of her general claims related to the state court proceedings discussed below (see, e.g., [DE-54] at 2 (“Attorney David McRae should have known that the Superior Clerk of Court would not be able to give [Ms. Hinton] a fair and impartial jury trial or appeal”) and would fail for the same reasons discussed below. Accordingly, plaintiff's motions to add Attorney McRae [DE-54, -55; -60] as a defendant are DENIED.
MEMORANDUM AND RECOMMENDATION ON MOTIONS TO DISMISS, ET AL.
I. BACKGROUND AND CLAIMS
A. Plaintiff's Allegations
Although Ms. Hinton's complaint, as amended and supplemented in light of the court's order above, is at times difficult to follow, the main issues in this case appear to arise from various state court proceedings related to the administration of the estate of Leroy Elliott (the “Leroy Elliott estate”) and the related division of real property including a lot 9 (“Lot 9”). [DE-1] at 5. Taken in the light most favorable to the Ms. Hinton, she appears to allege the facts below.
A last will and testament of Leroy Elliott dated April 13, 1987, which revokes all previous wills and codicils he had made ([DE-33-1] at 1-2), devises Leroy Elliott's property equally among his four children, including Lorene E. Harris, i.e., Ms. Hinton, and Alfreda Cox, i.e., Alfredia Waters. See id. at 1; see also Harnett County Register of Deed Book 970 pg. 224-26 [DE-26-1] at 2; [DE-46-3]. Ms. Hinton allegedly did not learn about the 1987 will until 2015. [DE-46] at 4. Defendant Alfredia Waters, who appears to be Ms. Hinton's sister, was the guardian and executrix of the Leroy Elliott estate. [DE-1] at 4-6.
Ms. Hinton also references a 1980 will, but the significance of this 1980 will to Ms. Hinton's claims is unclear. Ms. Hinton admits that the 1980 and 1987 wills contain the same information. See [DE-46] at 3.
While the undersigned references various wills and deeds herein to provide context for the motions before the court, the undersigned makes no findings on the validity or legal implications of these documents, except as otherwise noted, due to the lack of subject matter jurisdiction under the Rooker-Feldman doctrine, as discussed herein.
The undersigned takes judicial notice here and the throughout the parties' filings of uncontested state court orders and excerpts of the Register of Deeds submitted by the parties. See In re Henries, No. 08-08631-8-RDD, 2012 WL 2377785, at *5 (Bankr. E.D. N.C. June 25, 2012) (“The Court finds in North Carolina, the register of deeds is the duly authorized agency to record and register conveyances of an interest in real property.”); Sayman v. Lehman Bros. FSB, No. 3:13-CV-288-RJC-DSC, 2013 WL 6254124, at *1 (W.D. N.C. Dec. 4, 2013) (taking judicial notice of documents recorded by the county register of deeds).
Ms. Hinton alleges that Alfredia Waters and her two other siblings used false information to have Leroy Elliott declared mentally incompetent. [DE-1] at 6. Specifically, Bobby Elliott, who appears to be another one of Leroy Elliot's children (see [DE-33-1] at 1), initiated the guardianship over Leroy Elliott in April 1987, with Alfredia Waters as the selected guardian. [DE-46] at 3. Ms. Hinton did not learn about the guardianship until 2018. Id. at 3-4. Ms. Hinton contends that the clerk of court should have prevented these actions, because Bobby Elliott was a felon and had been convicted of manslaughter. Id. at 3. In April 1987, after Alfredia Waters had commenced the guardianship, Leroy Elliott died. Id.
In 1992, Alfredia Waters instituted state court probate proceedings related to the administration of the Leroy Elliott estate (the “1992 proceedings”). [DE-1] at 5. Ms. Hinton alleges that the Leroy Elliott estate was divided without providing Ms. Hinton the 25% share belonging to her. Id. On June 15, 1992, a deed conveyed what appears to be Lot 9 from all four Leroy Elliott children to Alfredia Waters and Ms. Hinton as tenants in common. Harnett County Register of Deed Book 970 pg. 224-26 [DE-25-1]. Although Ms. Hinton was listed as a defendant in the 1992 proceedings, Ms. Hinton alleges that she did not know about the hearing associated with these proceedings as the wrong address had been provided for her, despite the clerk of court knowing Ms. Hinton's correct address. [DE-46] at 3-4. At these hearings, an “Attorney Rouse” represented that he was Ms. Hinton's attorney, even though Ms. Hinton did not learn of this individual until 1993. Id. at 4.
The court takes judicial notice based on the unopposed excerpt of the Harnett County Register of Deeds.
It is unclear if plaintiff is alleging that this transfer did not appropriately reflect her due share in Leroy Elliott's estate or whether it otherwise suffers from a legal deficiency.
Alfredia Waters and her husband Derick Waters allegedly deceived Ms. Hinton and the James Roger Elliott heirs with respect to the disposition of Leroy Elliott's estate with the assistance of an unnamed Clerk of Superior Court, unnamed County commissioners, a certain Jessie Hunter, and Attorney Carr, who was Alfredia Waters' personal tax lawyer in 1992. [DE-1] at 5. Specifically, Ms. Hinton alleges that Alfredia Waters untruthfully informed Ms. Hinton that Alfredia Waters had not received any money from the administration of the Leroy Elliott estate (id.) and that Leroy Elliott had no money in his account ([DE-46] at 5). Alfredia Waters, with the assistance of Attorney Carl, also allegedly used “unauthorized deeds” to claim assets for the Leroy Elliott estate in a manner that did not reflect the true ownership interests in the properties as they stood in light of a divorce within the ancestral Elliott family in 1948. Id.
Although the alleged fraud giving rise to the complaints occurred in 1992, Ms. Hinton claims that she did not learn until 2020 that Alfredia Waters had become a millionaire as a result of the 1992 administration of the Leroy Elliott estate. [DE-1] at 5.
In 2017, Alfredia Waters filed for a partition of Lot 9. [DE-20] at 1. Ms. Hinton informed the then Harnett County Superior Clerk of Court, Marshall Johnson, about various matters affecting to the proper partition of the land. Id. According to Ms. Hinton, all James Roger Elliott heirs have an interest in the relevant land due to a 1966 “ex-parts-petition” [sic] meaning that the 2022 Lot 9 partition included land that had not belonged to Leroy Elliott and was therefore improperly considered part of his estate. [DE-20] at 1, 3-4.
Beginning on September 27, 2022, Assistant Clerk of Court Paye presided over state court proceedings in Harnett County Superior Court related to the division of Lot 9 (the “2022 proceedings”). [DE-1] at 4-5. At these proceedings, Ms. Hinton requested a jury trial, but was denied. Id. at 4. On November 7, 2022, Assistant Clerk of Court Paye ruled “in favor of Alfredia Waters” and divided Lot 9 in equal shares ([DE-1] at 4) between Ms. Hinton and Alfredia Waters. [30-3].
The order of partition was entered on October 7, 2022. [DE-30-3] at 1.
Ms. Hinton alleges that she “suffered a lot of emotional pain anguish” in addition to the loss of her due financial entitlements as a result of the misadministration of Leroy Elliott's estate. [DE-1-1] at 5.
B. Jurisdictional Allegations
Ms. Hinton alleges diversity jurisdiction, with defendant Alfredia Waters living in California, defendants Clerk of Court Whittenton, Assistant Clerk of Court Paye and Attorney Carr living in North Carolina and Ms. Hinton living in South Carolina. [DE-1-1]; [DE-3]. Ms. Hinton does not allege where the James Roger Elliott's heirs are domiciled.
Ms. Hinton further alleges that her claims arise under 42 U.S.C. § 1983 for violations of the Sixth, Seventh, Eighth, and Fourteenth Amendment of the U.S. Constitution, specifically alleging “[denial of the] right to jury trial, no due process, excessive fees.” [DE-1-1]. At one point, Ms. Hinton indicated that she would like to change the “nature of suite from-370 fraud back to the Constitution,” but that “370 fraud is evident that will be given at trial to show how [Attorney Carr] and Alfredia Cox (Waters) violated [Ms. Hinton's] amendment rights.” [DE-44].
C. Legal Claims
1. Claims against Alfredia and Derick Waters
Ms. Hinton is suing Alfredia Waters for lying to Ms. Hinton “in person and on paper that she never received a dime from Leroy Elliott estate.” [DE-1] at 4-5. Ms. Hinton alleges that Derick Waters participated in this fraud (id. at 5) and is “guilty by association[, as he] helps spend and give his family the wealth of the James Roger Elliott heirs” ([DE-44] at 7). See also [DE-51] at 2 (“. . . Alfredia Waters and partner Derrick [sic] Waters for their own personal interest or gain conspired together to take property and wealth from the Elliott heirs.”). Ms. Hinton claims that the 1992 probate case was based on fraud. [DE-33]. Additionally, Ms. Hinton contends that Alfredia Cox committed perjury at the 1987 court proceedings in her role as the guardian of their father with the pretense of promoting his best interest. [DE-48] at 3. Ms. Hinton believes that this “perjury” led to the death of Leroy Elliott, Robert Elliott, and Willie Elliott. [DE-48] at 3.
Plaintiff also alleges that the James Roger Elliott heirs were harmed by this deceit, as discussed herein. [DE-1] at 5.
On July 25, 2023, Ms. Hinton filed a motion to supplement her amended complaint [DE-12] against Alfredia Waters and add an additional state law claim alleging that Alfredia Waters breached her fiduciary duty as executor of Leroy Elliott's will. [DE-45]. Specifically, Ms. Hinton alleges that:
[a]n executor can also be held personally and financially liable for loss to the estate due to the executor's actions or lack of action, which affects one or more beneficiaries and Leroy Elliott's brothers and sister account that the deceased her father Leroy Elliott held as the leader of the social bar area on nutgrass rd., which could have been reasonably avoided.[DE-45] (Ms. Hinton citing “Bing internet”).
Ms. Hinton also appears to infer that the five years it took Alfredia Waters as executrix to settle Leroy Elliott's estate that consisted of “1.000 [sic] personal assets and 15,000 in real property” also contributed to the breach of fiduciary duty. [DE-46] at 2. Ms. Hinton also alleges that “Alfredia [Waters] was supposed to pay the taxes [on Leroy Elliott's estate] and ensure that the James Roger Elliott heirs took possession of the houses on Nutgrass rd and surrounding areas.” Id. at 5. Ms. Hinton further believes that “Alfredia Waters allowed the Senter Real Estate in Greensboro, N.C., to claim the Roger Elliott estate house valued at $400,000 in 1979.” [DE-46] at 7. Ms. Hinton elsewhere alleges that the “James Roger Elliott heirs lost their assets because of the mishandling of all six accounts that Leroy Elliott was in charge of in running the social bar area on nutgrass rd. in Bunnlevel, NC.” [DE-46] at 2.
It is unclear what involvement, if any, the defendants had in this alleged mismanagement by Leroy Elliot of these accounts.
2. Claims against Clerk of Court Whittenton and Assistant Clerk of Court Paye
Ms. Hinton appears to allege that it was improper for Assistant Clerk of Court Paye to preside as a probate judge over the land partition matter in 2022. [DE-20] at 1. (“To ensure equal rights protection under the law, a dispute over land rights must be a Superior Court judge (lawyer) or law judge and jury trial in Harnett County.”). Ms. Hinton generally alleges that the Clerk of Court and Assistant Clerk of Court Paye “in their official capacity, have too much power,” which denies plaintiff's due process rights under the Fourteenth Amendment, and plaintiff's right to a jury-trial under the Seventh Amendment. [DE-20] at 2; see also [DE-29] (“The Clerk of The Superior Court acting as a Probate judge -should have the same requirements to practice law as a Superior Court Judge.”). Similarly, Ms. Hinton alleges that Clerk of Court Whittenton and Assistant Clerk of Court Paye were practicing law without a license based on their activities during the proceedings. [DE-30] at 2.
Ms. Hinton's objection to the authority vested in Harnett County clerks of court is not limited to Clerk of Court Whittenton and Assistant Clerk of Court Paye; rather Ms. Hinton argues that various clerks of court in Harnett County beginning in 1966 exercised unconstitutional power, which led to the “James Roger Elliott heir's loss of land and property in 1966-1992.” [DE-20] at 3-5.
3. Claims against Attorney Carr
While not entirely clear, Ms. Hinton appears to allege that Attorney Carr committed or participated in fraud. See [DE-1] at 5 (alleging that Alfredia Waters deceived Ms. Hinton with the assistance of Attorney Carr); [DE-44]; [DE-46] at 5-6 (alleging that Attorney Carr “was not honest” with Ms. Hinton, did not give Ms. Hinton a receipt for the $700 Ms. Hinton paid in land taxes, and wrote deeds for land “no heir claimed . . . in 1974”). Attorney Carr allegedly “wrote deeds for land that Leroy Elliott's last will and testament did not claim . . . [because] Leroy Elliott only claims equal shares of land and assets and no deeds in his last will.” [DE-33] at 1. Additionally, Ms. Hinton appears to claim that Attorney Carr misled her on the consequences of providing a specimen signature, which was later attached to the last page of the deed conveying property (id. at 1-2). Attorney Carr also allegedly did not inform Ms. Hinton that he was Alfredia Water's private lawyer. Id. at 5. While not entirely clear from her complaint, Ms. Hinton appears to allege that in 1992 Attorney Carr wrote warranty deeds that improperly redistributed land holdings among various members of the extended family. See [DE-46] at 6 (“In 1992, [Attorney] Carr wrote four deeds and allowed the Joe and Mamie Davis heirs to keep lots eight and three . . . [Attorney] Carr claimed for the Joe Davis heirs lot three . . . that no heir claimed at a deed in 1974 . . .Why the takeover of land by another kinfolk? I believe that Alfredia Waters wanted her aunt to have all her father's sibling [sic] property and houses.”).
D. Relief Requested
Ms. Hinton requests various forms of relief throughout her multiple filings. The relief sought includes: (i) that Alfredia Waters' name “come off of” the Lot 9 deed ([DE-1] at 6); (ii) that Ms. Hinton receive “one million for every year [she] was cheated out of [her] father Leroy [Elliott's] account[, i.e., $36 million]” (id. at 6); (iii) Ms. Hinton's 25% share in the Leroy Elliott estate ([DE-30] at 4; see also [DE-1] at 5); (iv) that the James Roger Elliott heirs be given their other land, wealth, and original houses back ([DE-1] at 6), including the land and houses given to Mamie and Joe Davis and others ([DE-46] at 8); (v) that “all the court documents that were written after 1981 illegally by the Clerk of the Superior Court practicing the law without a license be declared invalid and a remedy be given” ([DE-30] at 4); (vi) “[t]o have an investigation to find out what happened to Leroy Elliott, Robert Elliott, and Willie Elliott when Alfredia Waters and her 2 siblings went to special proceedings and had Leroy Roy Elliott declared incompetent to take over his account in April of 1987” (id.); (vii) that “Alfredia Waters and her two siblings (Bobby and Lillie) should be charged with the demise of their father, Leroy Elliott, Robert Elliott, and Willie Elliott.” ([DE-46] at 8); (viii) a full-time “judge lawyer” for Harnett County (id.); (ix) a police “hub” in the town of Bunnlevel NC (id.); and (x) “[a] requisition . . . so people can go to court and claim their land without a lawyer” (id.).
II. APPLICABLE LEGAL STANDARDS
A. Rule 12(b)(1) - Lack of subject matter jurisdiction
Rule 12(b)(1) provides for dismissal of an action if the court lacks subject matter jurisdiction over it. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of showing federal jurisdiction on a Rule 12(b)(1) motion. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991); Bio-Medical Applications of N.C, Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D. N.C. 2006). “The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case.” Johnson v. North Carolina, 905 F.Supp.2d 712, 719 (W.D. N.C. 2012) (citing Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir.1999)).
The court's standard for review of a motion filed pursuant to Rule 12(b)(1) depends on the nature of the movant's challenge to subject matter jurisdiction. There are two ways a defendant can challenge subject matter jurisdiction under Rule 12(b)(1): “he may either assert (1) a facial challenge that the allegations pled in the complaint are not sufficient to establish subject matter jurisdiction; or (2) a factual challenge that the allegations establishing jurisdiction are not true.” Chong Su Yi v. Soc. Sec. Admin., 80 F.Supp.3d 666, 669 (D. Md. 2015) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). If the argument claims that the complaint fails to allege sufficient facts conferring subject matter jurisdiction, the court must assume all facts alleged in the complaint to be true and “and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kimble v. Rajpal, 566 Fed.Appx. 261, 262 (4th Cir. 2014) (noting that where defendant raises a “facial challenge” to the jurisdictional allegations, “the court must evaluate the complaint in the same manner utilized in assessing a motion to dismiss for failure to state a claim- that is, viewing the well-pleaded facts in the complaint as true”). The court may consider any documents attached to the complaint in its analysis. Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 Fed.Appx. 677, 679 n.* (4th Cir. Jan. 8, 2014), cert. denied, 573 U.S. 948, 134 S.Ct. 2886 (2014); see also Fed.R.Civ.P. 10(c). Alternatively, if the movant contests the accuracy of the plaintiff's jurisdictional allegations, the court must treat the allegations of the complaint as mere evidence and may consider matters beyond the pleadings without converting the motion to one for summary judgment. Richmond, 945 F.2d at 768; see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he court may consider the evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject matter] jurisdiction.”). Additionally, under Rule 12 of the Federal Rules of Civil Procedure, “[i]f the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
Here, the court construes the motions to dismiss ([DE-25] at 2-3; [DE-15] at 3-10) as alleging that the complaint fails to allege sufficient facts conferring subject matter jurisdiction. The undersigned, therefore, assumes all facts alleged in the complaint to be true and “and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams, 697 F.2d at 1219.
B. Rule 12(b)(6) - Failure to state a claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if “it appears certain that the plaintiff[s] cannot prove any set of facts in support of [their] claim entitling [them] to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Ordinarily, the complaint need contain simply “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible if the plaintiff alleges factual content “that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” and shows more than “a sheer possibility that a defendant has acted unlawfully.” Id.; SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015) (“[I]t is not our task at the motion-to-dismiss stage to determine ‘whether a lawful alternative explanation appear[s] more likely' from the facts of the complaint.” (quoting Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015))), as amended on reh'g in part (Oct. 29, 2015).
In analyzing a Rule 12(b)(6) motion, a court must accept as true all well-pleaded allegations of the challenged complaint and view those allegations in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (noting that the court must accept as true all factual allegations of the complaint). All reasonable factual inferences from the allegations must be drawn in the plaintiff's favor. Edwards, 178 F.3d at 244. However, bare assertions of legal conclusions or formulaic recitations of the elements of a claim are not entitled to be assumed true. Iqbal, 556 U.S. at 680-81. Complaints filed by pro se plaintiffs are entitled to liberal construction. Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 72 (4th Cir. 2016) (“We are mindful of our obligation to liberally construe a pro se complaint.”); Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (“We must construe pro se complaints liberally . . . and liberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” (alteration in original) (citations omitted)); White v. White, 886 F.2d 721, 724 (4th Cir. 1989) (“Pro se complaints are to be read liberally”).
III. PARTIES
As an initial matter, while The James Roger Elliott's Heirs are listed as co-plaintiffs in this case, none of them have filed a notice of self-representation or signed the complaint [DE-1], and all other filings are made exclusively by Ms. Hinton. Ms. Hinton also does not provide the citizenship or even the individual names of these purported co-plaintiffs.
As “[a] nonlawyer[, Ms. Hinton cannot] handle a case on behalf of anyone except [her]self.” Wojcicki v. SCANA/SCE & G, 1, 245 (4th Cir. 2020) (quotation omitted); see also Myers v. Louden Cty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005) (“The right to litigate for oneself, however, does not create a coordinate right to litigate for others.”) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam)); Local Civil Rule 5.2(b)(2) (“Except as otherwise permitted by law, no self-represented party may appear on behalf of another self-represented party.”); see also 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel.” (emphasis added)).
Given the complete absence of identifying information for The James Roger Elliott's Heirs or any activity in this case by any of them, the undersigned construes Ms. Hinton as the only plaintiff in this action. See Collins v. Del Castro, No. GJH-18-3503, 2019 WL 3536778, at *1, n.1 (D. Md. Aug. 2, 2019) (treating the pro se plaintiff who made all of the filings as the only plaintiff, because a pro se plaintiff cannot represent others and the purported co-plaintiff “had not so far the participated in the litigation.”). To the extent that any of The James Roger Elliott's Heirs were attempting to bring claims through the present action by Ms. Hinton, the undersigned RECOMMENDS that any such claims be DISMISSED WITHOUT PREJUDICE.
IV. ANALYSIS
A. Defendants' Motions to Dismiss
Defendants' arguments in their respective motions to dismiss generally fall into the following categories: (i) the Eleventh Amendment bars plaintiff's claims against defendants, Assistant Clerk of Court Paye and Clerk of Court Whittenton [DE-15] at 3-7; (ii) the Rooker-Feldman doctrine bars plaintiff's claims for injunctive relief from state court orders (id. at 7); (iii) defendants, Alfredia Waters, Derick Waters and Attorney Carr were not acting under color of state law [DE-24] at 2; [DE-42] at 3; (iv) Attorney Carr was not a party to the 2022 proceedings and did not have any direct knowledge of them [DE-24] at 2; and (v) plaintiff's complaint does not identify any impropriety by Attorney Carr or otherwise at the 1992 proceedings (id.).
For the reasons discussed below, the undersigned RECOMMENDS that the Motions to Dismiss of Assistant Clerk of Court Paye and Clerk of Court Whittenton [DE-14]; and Attorney Carr [DE-24], respectively, and the Amended Motion to Dismiss of Alfredia Waters and Derick Waters [DE-41] be GRANTED.
1. Immunity under Eleventh Amendment
Clerk of Court Whittenton and Assistant Clerk of Court Paye assert that plaintiff's claims against them are barred by the Eleventh Amendment. [DE-15] at 3-7. Ms. Hinton argues that Eleventh Amendment immunity does not extend to counties and municipalities and that the Clerk of Court works for the county, not the state. [DE-20] at 4 (citing Bing Internet).
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. The Supreme Court has interpreted the sovereign immunity that the Eleventh Amendment recognizes to apply to suits against a state by its own citizens. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890), overruled on other grounds by statute, 42 U.S .C. § 2000d-7). “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). This immunity from suit also covers state agencies and state officials acting in an official capacity. Gamache v. Cavanaugh, 82 F.3d 410 (4th Cir. 1996) (“Under the Eleventh Amendment, however, neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent.”). There are only three exceptions to governmental immunity under the Eleventh Amendment: “(1) where the state agency has waived its immunity, (2) where Congress has overridden that immunity,” Philips v. N. Carolina State, No. 5:15-CV-95-F, 2015 WL 9462095, at *6 (E.D. N.C. Dec. 28, 2015), aff'd, 667 Fed.Appx. 419 (4th Cir. 2016) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)), or (3) under the doctrine of Ex parte Young, 209 U.S. 123 (1908), which permits “official capacity suits requesting prospective relief to achieve the officials' compliance with federal law.” D.T.M. v. Cansler, 382 Fed.Appx. 334, 337 (4th Cir. 2010); Ihenachor v. Md., No. RDB-17-3134, 2018 WL 1863678, at *4 (D. Md. 18 Apr. 2018) (“Known as the Ex parte Young exception, private citizens may petition federal courts to enjoin State officials in their official capacities from engaging in future conduct that would violate a federal statute or the Constitution”).
“In determining whether the Ex parte Young exception applies, ‘a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.' ” D.T.M., 382 Fed.Appx. at 337 (quoting Verizon Md. Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002)).
The Supreme Court has also held that “that state officials ‘acting in their official capacities' are outside the class of ‘persons' subject to liability under § 1983.” Hafer v. Melo, 502 U.S. 21, 21 (1991) (citing Will, 491 U.S. at 66); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995) (“Like the state itself, state officers acting in their official capacity are also entitled to Eleventh Amendment protection, because ‘a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office,' and ‘[a]s such, it is no different from a suit against the State itself.'”) (alterations in original) (quoting Will, 491 U.S. at 71).
Here, plaintiff's claims against Clerk of Court Whittenton and Assistant Clerk of Court Paye, acting in their official capacities, as clerk of court and assistant clerk of court, respectively, are barred by the Eleventh Amendment. See Day v. Santaniello, No. 5:15-CV-165-FL, 2015 WL 13735398, at *6 (E.D. N.C. Oct. 7, 2015), report and recommendation adopted in part sub nom. Day v. A.T. Santaniello, No. 5:15-CV-165-FL, 2015 WL 7306447 (E.D. N.C. Nov. 19, 2015) (“Eleventh Amendment immunity bars any claims against the defendant assistant district attorneys, judges, and clerk of court in their official capacities.”) (citing Taylor v. Brooks, C/A No. 3:15-1138-RMG-MGB, 2015 WL 4257022, at *4 (D.S.C. 21 May 2015)). For the same reasons that “[a] clerk of court is entitled to quasi-judicial immunity when carrying out judicial functions,” Bayyari v. Shapiro, No. 5:14-CV-312-FL, 2014 WL 5427986, at *4 (E.D. N.C. Sept. 2, 2014), report and recommendation adopted, No. 5:14-CV-312-FL, 2014 WL 5430222 (E.D. N.C. Oct. 23, 2014), an assistant clerk of court should be entitled to quasi-judicial immunity when performing the same functions. See Alford v. Mecklenburg Cnty. Clerk of Superior Ct., No. 3:19-CV-156-MOC-DSC, 2019 WL 2881556, at *4 (W.D. N.C. July 2, 2019) (“When the clerk exercises probate jurisdiction, the clerk acts as a judicial officer of the superior court.”); cf. also Gabriel v. Forsyth Cnty. Clerk of Ct. Ms. Susan Frye Off. of 21st Jud. Dist. Ct., No. 1:18-CV-354, 2019 WL 2215853, at *2 (M.D. N.C. May 20, 2019), aff'd sub nom. Gabriel v. Frye, 814 Fed.Appx. 785 (4th Cir. 2020) (“Pursuant to North Carolina statute, assistant Superior Court Clerks of Court are judicial officers for purposes of foreclosure proceedings, [which like probate proceedings are governed by N.C. G.S. § § 7A-40] . . . and therefore can only be sued for ‘nonjudicial actions' or actions ‘taken in the complete absence of all jurisdiction.'”) (emphasis added) (citations omitted). Ms. Hinton's argument that clerks of court cannot avail themselves of Eleventh Amendment immunity because they “work for the county, not the state” is factually incorrect. See N.C. G.S. § § 7A-101 (“The clerk of superior court is a full-time employee of the State”) (emphasis added).
Ms. Hinton has not shown that the judicial officer defendants have waived their judicial immunity, or that Congress has overridden it. Similarly, Ex parte Young does not permit parties to cloak an appeal of a state judicial decision as “prospective relief to achieve the officials' compliance with federal law.” D.T.M., 382 Fed.Appx. at 337. As the Supreme Court held:
[the Ex parte Young] exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to [the Supreme Court], not the entry of an ex ante injunction preventing the state court from hearing cases.Whole Woman's Health v. Jackson, 595 U.S. 30, 39, 142 S.Ct. 522, 532, 211 L.Ed.2d 316 (2021).
Accordingly, because defendants Clerk of Court Whittenton and Assistant Clerk of Court Paye are entitled to Eleventh Amendment immunity, the undersigned RECOMMENDS that all claims against them be DISMISSED.
2. Rooker-Feldman Doctrine
Defendants argue that Ms. Hinton's request for injunctive relief violates the Rooker-Feldman doctrine. [DE-15] at 7-10. In her response in opposition, Ms. Hinton argues that the “Rooker-Feldman Doctrine does not apply to this complaint because partition of real property was not a state court order.” [DE-20] at 2. The undersigned agrees with the defendants for the reasons discussed below.
The Rooker-Feldman doctrine bars federal courts from sitting “in direct review of state court decisions.” D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 484 n.16 (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. Va. 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) (citations omitted). “A federal 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 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”) (internal quotation marks omitted) (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 Plyler, 129 F.3d at 733). “The key inquiry is not whether the state court ruled on the precise issue raised in federal court, but whether the ‘statecourt loser who files suit in federal court seeks redress for an injury caused by the state-court decision itself.'” Willner v. Frey, 243 Fed.Appx. 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)). Plaintiff, of course, retains the ability to exercise her appellate rights in the state court system, subject to applicable deadlines. See Jordahl, 122 F.3d at 202 (“[T]he [Rooker-Feldman] doctrine reinforces the important principle that review of state court decisions must be made to the state appellate courts, and eventually to the Supreme Court, not by federal district courts or courts of appeals.”).
Here, this court would need to conduct a review of, and make ineffectual, the state court's probate and land partition decisions in order to grant Ms. Hinton's requests for injunctive relief from state orders including that Alfredia Waters' name be removed from the Lot 9 deed ([DE-1] at 6); Ms. Hinton receive her requested 25% share in the Leroy Elliott estate ([DE-30] at 4); that the James Roger Elliott heirs be given their other land, wealth, and original houses back ([DE-1] at 6), including the land and houses given to Mamie and Joe Davis and others ([DE-46] at 8); and that “all the court documents that were written after 1981 illegally by the Clerk of the Superior Court practicing the law without a license be declared invalid and a remedy be given” ([DE-30] at 4).
The undersigned finds no support for Ms. Hinton's contention that state court orders relating to probate matters and land partitions are not state orders. See, e.g., [DE-30-3] (“Order by the Harnett County state court for Appointment of Commissioners”). Ms. Hinton's objections to the state court orders on probate and land partition matters here fall squarely within the scope of the Rooker-Feldman doctrine. Cf., e.g., Garrett v. Garrett, No. 2:14-CV-30-FL, 2015 WL 3890857, at *4 (E.D. N.C. June 24, 2015) (finding that claims of “injuries resulting from an allegedly improperly conducted state probate proceeding . . . are barred by operation of the Rooker-Feldman doctrine”); KIML. HARPER, Plaintiff, v. ROCHELLE HARPER GREENIDGE, et al., Defendants. Additional Party Names: Beth Harper Rodriguez, Sonya G. Thomas, No. 1:18-CV-00283-MR-WCM, 2019 WL 281314, at *2 (W.D. N.C. Jan. 22, 2019) (finding the Rooker-Feldman doctrine precludes the court from exercising jurisdiction over a challenge to a decision of the state probate court relating to the removal of the administrator of a deceased parent's estate); Curley v. Adams Creek Assocs., 409 Fed.Appx. 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); Pippen v. Slaughter, No. 1:19CV891, 2020 WL 2086136, at *1 (M.D. N.C. Apr. 30, 2020), aff'd in part, appeal dismissed in part on other grounds, No. 20-1618, 2021 WL 5397497 (4th Cir. Nov. 18, 2021) (finding no subject matter jurisdiction to review or reject state court order on land partition due to Rooker-Feldman doctrine); Cranbury Brook Farms v. Twp. of Cranbury, 226 Fed.Appx. 92, 95 n.3 (3d Cir. 2007) (“To the extent Appellants challenge the way in which the partition proceedings were conducted in state court, their claims cannot be raised in a subsequent federal action such as this.”).
Accordingly, this court does not have subject matter jurisdiction to review plaintiff's claims for injunctive relief from state orders and the undersigned RECOMMENDS that all claims contesting the results of state court orders discussed above be DISMISSED.
3. Failure to state a claim
a. 42 U.S.C. § 1983 - No state action by Alfredia Waters, Derick Waters, and Attorney Carr
Section 1983 imposes liability on anyone “who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia” deprives another person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “§ 1983 is not ‘a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.'” Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (quoting Baker v. McCollan, 443 U.S. 137, 144 (1979)). “To state a claim under § 1983, a plaintiff must allege facts to support the following findings: (1) that [s]he has been deprived of a federal right; and (2) that the person who deprived [her] of [her] federal right did so under color of state law.” Vaughan v. Foltz, No. 2:16-CV-61-FL, 2017 WL 9480142, at *3 (E.D. N.C. May 8, 2017) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)); see also West v. Atkins, 487 U.S. 42, 49-50 (1988) (“[A]cting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” (quoting United States v. Classic, 313 U.S. 299, 326 (1941))).
Ms. Hinton appears to argue that Alfredia Waters, as an executrix of Leroy Elliott's estate, was acting under color of state law, ostensibly in her participation “in joint activity with the Clerk of Superior Court in 1987-1992 that denied Larene Hinton and James Roger Elliott due process.” [DE-46] at 1-2. Elsewhere Ms. Hinton argues that “[t]he color of the law applies if there is substantial evidence of violation between Clerk of Superior Court and Alfredia Waters.” [DE-48] at 2.
The “under-color-of-state-law element of § 1983,” is similar to the Fourteenth Amendment's “state-action” requirement in that it “excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (noting the equivalence of the § 1983's “color of law” requirement and the Fourteenth Amendment's “state action” requirement). The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as:
(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has
delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen. If the conduct does not fall into one of these four categories, then the private conduct is not an action of the state.Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir.1993).
The conduct of Alfredia Waters, as well as that of Derick Waters and Attorney Carr, even in the light most favorable to the Ms. Hinton, does not fall within any of the categories listed above. See Howard v. Hopkins, 228 Fed.Appx. 412, 412 (5th Cir. 2007) (finding that the executrix of a will and an attorney involved in the probate of such will were not acting under color of state law in the performance of their duties based on the facts alleged).
Accordingly, the undersigned RECOMMENDS that plaintiff's 42 U.S.C. § 1983 claims against Alfredia Waters, Derick Waters and Attorney Carr be DISMISSED.
b. Claims without legal basis
Throughout her filings Ms. Hinton makes numerous claims and requests certain forms of relief that are not grounded in law, subjecting each to DISMISSAL, as discussed below. With respect to Ms. Hinton's contention that a clerk of court should not preside over probate proceedings, the law in North Carolina provides that “[t]he clerk of superior court in the exercise of the judicial power conferred upon [her] as ex officio judge of probate, and in the exercise of other judicial powers conferred upon [her] by law in respect of special proceedings and the administration of guardianships and trusts, is a judicial officer of the Superior Court Division, and not a separate court.” N.C. G.S. § 7A-40; see also Hutchison v. Bank of N. Carolina, N.A., 392 F.Supp. 888, 896 (M.D. N.C. 1975) (“[t]he present law and practice in North Carolina courts makes it abundantly clear that the Clerk of Superior Court is a judicial officer and not a mere administrative functionary.”). While Ms. Hinton indicated a desire to have her case heard before a superior court judge ([DE-20] at 1), there is no indication that she attempted to exercise or was prevented from exercising her right to appeal review by a superior court judge of the order issued by the clerk of superior court. See § 7A-251 (“In all matters properly cognizable in the superior court division which are heard originally before the clerk of superior court, appeals lie to the judge of superior court having jurisdiction from all orders and judgments of the clerk for review in all matters of law or legal inference, in accordance with the procedure provided in Chapter 1 of the General Statutes.”).
Similarly, Ms. Hinton's demand for a jury trial for her probate proceedings does not find any basis in law. See Brown v. Boger, 263 N.C. 248, 255, 139 S.E.2d 577, 582 (1965) (“Whether land should be divided in kind or sold for partition is a question of fact for decision of the clerk of superior court, subject to review by the judge on appeal; it is not an issue of fact for a jury.”); Walker v. Sauvinet, 92 U.S. 90, 92-93, 23 L.Ed. 678 (1875) (finding no constitutional requirement “that all trials in the State courts affecting the property of persons must be by jury”).
Ms. Hinton also does not cite any legal basis for her demand for a full-time “judge lawyer” for Harnett County, a police “hub” in the town of Bunnlevel NC and “[a] requisition . . . so people can go to court and claim their land without a lawyer” ([DE-46] at 8). These are questions for the legislature not the courts. Cf. Manikowske v. N. Dakota Workmen's Comp. Bureau, 338 N.W.2d 823, 825 (N.D. 1983) (“The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.”) (citations omitted).
Ms. Hinton seeks “[t]o have an investigation to find out what happened to Leroy Elliott, Robert Elliott, and Willie Elliott when Alfredia Waters and her 2 siblings went to special proceedings and had Leroy Roy Elliott declared incompetent to take over his account in April of 1987” ([DE-30] at 4); and that “Alfredia Waters and her two siblings (Bobby and Lillie) should be charged with the demise of their father, Leroy Elliott, Robert Elliott, and Willie Elliott” ([DE-46] at 8). The undersigned notes that “[judges] do not do double duty as sheriffs.” Gibson v. Goldston, No. 22-1757, 2023 WL 7118522, at *6 (4th Cir. Oct. 30, 2023). Criminal prosecutions are initiated by prosecutors, not by federal courts. See Jones v. Gen. Elec. Co., No. CV ELH-19-196, 2019 WL 6918490, at *9 (D. Md. Dec. 19, 2019) (concluding that “because ‘a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another,' [(quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973)]], ‘[a] private person may not initiate a criminal action in the federal courts.'”) (citing Ras-Selah: 7 Tafari: El v. Glasser and Glasser PLC, 434 Fed.Appx. 236, 236 (4th Cir. 2011) (per curiam).
Accordingly, the undersigned RECOMMENDS that all such claims be DISMISSED as frivolous and for failure to state a claim.
c. State law claims
In addition to the 42 U.S.C. § 1983 claims, Ms. Hinton raises certain state law claims. Plaintiff's filings indicate that she may have voluntary dismissed her state law fraud claims. See [DE-44] (changing the “nature of suite from-370 fraud back to the Constitution,” but that “370 fraud is evident that will be given at trial to show how [Attorney Carr] and Alfredia . . . Waters violated [plaintiff's] amendment rights.”). However, even if such state law fraud claims remained, Ms. Hinton fails to state a claim for the reasons discussed below.
(i) State law claims against Attorney Carr
The alleged conduct giving rise to Ms. Hinton's claims against Attorney Carr occurred in 1992. “The statute of limitations [in North Carolina] for fraud is three years and runs ‘from the discovery of the fraud or from the time it should have been discovered in the exercise of reasonable diligence.'” See Topshelf Mgmt., Inc. v. Campbell-Ewald Co., 203 F.Supp.3d 608, 614 (M.D. N.C. 2016) (quoting Hunter v. Guardian Life Ins. Co. of Am., 162 N.C.App. 477, 485, 593 S.E.2d 595, 601 (2004)). Ms. Hinton's allegations against Attorney Carr appear to center around certain a deed drafted by Attorney Carr. [DE-33-1]. While plaintiff does not expressly allege when she became aware of the conduct giving rise to Attorney's Carr purported fraud, Attorney Carr filed the deed in question with the register of deeds in 1992, which provided Ms. Hinton with constructive notice of the same and initiated the relevant statute of limitations period. See Harnett County Register of Deeds Bk 970 page 224-226 [DE-25-1]; Sayman v. Lehman Bros. FSB, No. 3:13-CV-288-RJC-DSC, 2014 WL 868711, at *4 (W.D. N.C. Mar. 5, 2014) (noting that the “[p]laintiffs reasonably knew or should have known of the fraud/misrepresentation by” the time relevant documents were filed with the Register of Deeds and made public record).
In addition, Ms. Hinton appears to have executed a notarized signature witnessing the same. See [DE-25-1] at 2. However, as Ms. Hinton appears to contest the circumstances surrounding the provision of this signature (see [DE-33] at 1-2) (“Ms. Hinton claiming that Attorney Carr misled her on the consequences of providing a signature, which was later attached to the last page of the deed conveying property), the court will not consider it further.
It is unclear what claim, if any, Ms. Hinton premises on the fact that Attorney Carr failed to give her a receipt for the $700.00 she gave him in land taxes in 1992, but any conceivable claim would likewise be barred by the statute of limitations.
To the extent Ms. Hinton's state law claims against Attorney Carr are not already barred by the Rooker-Feldman doctrine discussed above, they are barred by the relevant statute of limitations. Accordingly, the undersigned RECOMMENDS that the court GRANT Attorney Carr's Motion to Dismiss [DE-24] and that all remaining claims against Attorney Carr be DISMISSED.
(ii) State law claims against Alfredia and Derick Waters
Based on the above, the only claims that remain are state law claims against Alfredia Waters for breach of fiduciary duty claim and possibly a fraud claim against Alfredia and Derick Waters. As these claims are based on state law, this court only has the ability to review them if they are based on diversity jurisdiction, as there are no remaining federal claims upon which to base supplemental jurisdiction.
It is unclear whether or not this claim has been voluntarily dismissed, as discussed herein.
Diversity jurisdiction exists in “civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different states ....” 28 U.S.C. § 1332(a). Ms. Hinton claims that Alfredia Water's misconduct made her sister a “millionaire at the closing of Leroy Elliott's estate in 1992” ([DE-20] at 3) and Ms. Hinton requests one million [dollars] for every year that [she] was cheated out of [her] father Leroy Elliott[‘s] account which will be 36 million [dollars],” ([DE-1] at 6). See also [DE-54] at 3 (Ms. Hinton requesting one million dollars). However, nowhere in her filings does Ms. Hinton explain the nature of this alleged million dollar enrichment to her sister, and there is nothing in any filings to suggest that the entire Leroy Elliott estate was worth close to this much. There are vague references to accounts that Leroy Elliott held “as the leader of the social bar area of nutgrass rd.” [DE-45]. However, there is no indication of how much money, if any, such accounts are alleged to have contained. Moreover, elsewhere in her filings, Ms. Hinton appears to allege that the total value of Leroy Elliott's estate was “only [$]1.000 [sic] personal assets and [$]15,000 in real property” [DE-46] at 2; see also ([DE-46-4] at 2) (the Harnett county court noting in 1991 that the estate obligations of Leroy Elliott's estate totaled $7,224.26).
Based on the current record, the undersigned finds that Ms. Hinton has not shown any basis upon which the amount in controversy for her state law claims against Alfredia Waters exceed $75,000. Bartnikowski v. NVR, Inc., No. 1:07CV00768, 2008 WL 2512839, at *6 (M.D. N.C. June 19, 2008), aff'd, 307 Fed.Appx. 730 (4th Cir. 2009) (“Other than Defendant's speculative calculations, there is nothing in the record which could allow a reasonable estimation of the amount in controversy.”). Accordingly, the undersigned does not find that this court has subject matter jurisdiction over the current claim.
Even if this court did have jurisdiction over Ms. Hinton's state law claims against Alfredia and Derick Waters, they would still fail for failure to state a claim.
Breach of fiduciary responsibility and fraud claims are not necessarily barred by the Rooker-Feldman doctrine. See Bedree v. Lebamoff, 202 Fed.Appx. 913, 915 (7th Cir. 2006) (finding that the breach of fiduciary duty claim in that case was “outside the scope of Rooker-Feldman because [it] cannot be said to be ‘the subject' of a state court judgment.'”) (citations omitted). However, here, the content of the fiduciary breaches and fraud alleged by Ms. Hinton appears to largely consist of the 1992 probate proceedings themselves, with her main argument appearing to be that these proceedings failed to reflect the historic conveyances of property within the wider Elliot family. See [DE-36] at 2 (“The 1992 case was based on fraud and violation of amendment right for-due process. The James Roger Elliott heirs lost their land and property in 1992. Larene Hinton never received my [sic] 25% of Leroy Elliott's last will.”). As discussed above, based on the Rooker-Feldman doctrine, this court cannot give relief that would essentially be a reversal of such a state court decision. See Jordahl 122 F.3d at 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”) (internal quotation marks omitted) (quotations omitted).
In addition, as discussed above, the statute of limitations in North Carolina for fraud is three years. Topshelf Mgmt., Inc., 203 F.Supp.3d 608, 614. The statute of limitations for breach of fiduciary duty is also three years and “begins to run when the claimant knew or by due diligence should have known of the facts constituting the basis for the claim.” Edwards v. UBS Tr. Co., N.A., No. 3:05CV228-C, 2005 WL 8179617, at *3 (W.D. N.C. Aug. 2, 2005) (quoting Dawn v. Dawn, 122 N.C.App. 493, 495, 470 S.E.2d 341, 343 (1996)).
The events giving rise to both the fraud and breach of fiduciary responsibility claims occurred no later than 1992, and plaintiff had constructive notice of all filings with the register of deeds at the time they were filed. See Sayman, 2014 WL 868711, at *4 (constructive notice through register of deeds). Even though Ms. Hinton's alleges that that she did not learn that “Attorney Rouse” purported to represent her at the 1992 proceedings until 1993 ([DE-46] at 4); or about the 1987 will until 2015 ([DE-46] at 4); or that Alfredia Waters was the guardian of her father until 2018 ([DE-46] at 3-4), all of these discoveries initiated statutes of limitations for grievances allegedly caused by these events that had lapsed by the time Ms. Hinton initiated her lawsuit in February 2023.
Ms. Hinton alleges that she did not learn until 2020 that Alfredia Waters had become a millionaire as a result of the 1992 administration of the Leroy Elliott estate. [DE-1] at 5. However, as referenced above, in her over ten attempts to amend and supplement her complaint, she never pleads any specific facts or circumstances underlying this claim.
Similarly, Ms. Hinton's state law claims against Derick Waters consist of allegations that he participated in the fraud perpetrated by his wife ([DE-1] at 5) and is “guilty by association[, as he] helps spend and give his family the wealth of the James Roger Elliott heirs.” ([DE-44] at 7). See also [DE-51] at 2 (“. . . Alfredia Waters and partner Derrick [sic] Waters for their own personal interest or gain conspired together to take property and wealth from the Elliott heirs.”).
All of these allegations do not allege any actual misconduct by either Alfredia or Derick Watters and represent the types of “labels and conclusions,” [and] “naked assertion[s]” devoid of “further factual enhancement,” which are insufficient to state a claim. See Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)).
Accordingly, the undersigned RECOMMENDS that Alfredia and Derick Waters' Amended Motion to Dismiss [DE-41] be GRANTED and that all claims against Alfredia and Derick Waters be DISMISSED.
B. All remaining motions
In light of the above recommendations, the undersigned RECOMMENDS that all remaining motions [DE-9, -32, -39, -46, -50, and -53] be DENIED AS MOOT.
V. CONCLUSION
For the reasons stated above, regarding the non-dispositive motions pending before the court, the undersigned ORDERS as follows:
1. Ms. Hinton's application [DE-6] and amended application [DE-7] to proceed in forma pauperis are DENIED;
2. Ms. Hinton's motions to appoint counsel [DE-6, -7] are DENIED;
3. Ms. Hinton's motions to amend or supplement her complaint (or other filings) [DE-12, -28, -29, -30, -44, -45, -49, -51, -52] are GRANTED; and
4. Ms. Hinton's motions to add Attorney David E. McRae [DE-54, -55, -60] as a defendant are DENIED.
For the reasons stated above, the undersigned RECOMMENDS that:
1. the Amended Motion to Dismiss of Assistant Clerk of Court Paye and Clerk of Court Renne Whittenton [DE-14] be GRANTED and all claims against Assistant Clerk of Court Paye and Clerk of Court Renne Whittenton be DISMISSED;
2. the Motion to Dismiss of Attorney Carr [DE-24] be GRANTED and all claims against Attorney Carr be DISMISSED;
3. the Amended Motion to Dismiss of Alfredia Waters and Derick Waters [DE-41] be GRANTED and that all claims against Alfredia Waters and Derick Waters be DISMISSED;
4. any claims that Ms. Hinton attempts to bring on behalf of The James Roger Elliott's Heirs be DISMISSED WITHOUT PREJUDICE; and
5. all remaining motions [DE-9, -32, -39, -46, -50, and -53] be DENIED AS MOOT.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel. Each party shall have until January 23, 2024, 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. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar the party 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).