Opinion
7:23-CV-1616-FL
01-18-2024
RAYMOND A. JETT, JR., et al., Plaintiffs, v. AJ WOODARD, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on pro se Plaintiff Raymond Jett's application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1, -2]. Plaintiff Raymond Jett has demonstrated appropriate evidence of inability to pay the required court costs, and his application to proceed in forma pauperis is allowed. However, when multiple plaintiffs are seeking to proceed in forma pauperis, each must fill out a separate application. Accordingly, Tara Jett must file an application to proceed in forma pauperis or pay the filing fee by no later than February 1, 2024, or her claims may be dismissed. On frivolity review, it is recommended that the claims on behalf of the minor children be dismissed without prejudice, Count II alleging a violation of N.C. Gen. Stat. § 14-401.14 be dismissed with prejudice, the claims against Defendant Amanda Parker be dismissed without prejudice, and the remainder of the claims be allowed to proceed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72,74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition.... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252,256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md. House of Corr, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. 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, Plaintiffs are proceeding pro se and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). The court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. DISCUSSION
Plaintiffs Raymond and Tara Jett, husband and wife, and their four minor children filed a complaint against A.J. Woodard, Amanda Parker, and Taylor Parker, alleging racial harassment and discrimination in violation of 42 U.S.C. § 1982 and state law. Compl. [DE-1], Plaintiffs are an interracial couple with biracial children who live in a home they own in Columbus County, North Carolina. Id. ¶ 2. Defendants, who are white, rented a home next to Plaintiffs' property in 2021. Id. Plaintiffs allege that after they reported to Defendants' landlord an issue involving Defendants' trash on Plaintiffs' property, Defendants began making racist comments and exhibiting intimidating behavior toward Raymond and Tara Jett. Id. ¶ 3. Specifically, Plaintiffs allege the following incidents of racially motivated intimidating behavior: Defendants Woodard and Taylor Parker drove their vehicles on the road in front of Plaintiffs' house, “revving” their engines only when in front of Plaintiffs' house; Woodard repeatedly fired his handgun indiscriminately in the air from his back yard at night, which Woodard rarely did prior to the trash incident; Taylor Parker threatened to harm Raymond Jett and to destroy Plaintiffs' yard with his truck; two juvenile guests of Woodard, motivated by Woodard's disdain for Plaintiffs, went onto Plaintiffs' property and shot Raymond Jett and his minor daughter with pellet guns; and Woodard and Parker yelled “we gave you your freedom” at Plaintiffs, “Nigger lover” at Tara Jett, and “you should have stayed away” upon Plaintiffs' return from a vacation. Id. ¶¶ 4-5, 9, 31-40, 56. Plaintiffs allege that they felt threatened by Woodard and Parker, the intimidating acts interfered with Plaintiffs' right to enjoy their property, and Plaintiffs lived in constant fear of Woodard and Parker and have suffered emotional distress, including humiliation, mental anguish, and physical distress and harm. Id. ¶¶ 8, 57, 63-69, 73. Plaintiffs seek a declaratory judgment that their civil rights and the North Carolina Ethnic Intimidation Act were violated, a judgment that Woodard and Parker are liable for intentional infliction of emotional distress and negligence, and a judgment against Woodard and Parker for compensatory, punitive, and exemplary damages in an amount that is fair and just and attorney's fees. Id. ¶ 74.
1. Claims of the Minor Children
Raymond and Tara Jett seek to assert claims on behalf of their four minor children. The Jett's are representing themselves without legal counsel, i.e., proceeding pro se, but they are not permitted to represent others in a pro se capacity. See Myers v. Louden Cnty. 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)). “The Fourth Circuit has rejected the right of individuals to litigate pro se on behalf of others, even with respect to a non-attomey parent's claims on behalf of their minor children in federal court.” Braun on behalf of C.B. v. North Carolina, No. 3:23-MC-7-RJC, 2023 WL 425399, at *2 (W.D. N.C. Jan. 26, 2023) (citing Myers, 418 F.3d at 401). This rule protects children from “well-meaning, but legally untrained” relatives who attempt to litigate on a child's behalf. See Williams ex rel. E.W. v. Wake Cnty. Pub. Sch. Sys., No. 5:08-CV-92-D, 2008 WL 2491129, at *1 (E.D. N.C. June 20, 2008) (dismissing complaint because the plaintiff was not permitted to litigate pro se on behalf of a minor child) (quoting Myers, 418 F.3d at 401); Verbal v. Krueger, No. 1:09-CV-990, 2010 WL 276644, at *3 (M.D. N.C. Jan. 15,2010) (dismissing a claim on frivolity review because a pro se plaintiff could not proceed as next friend for her minor child).
Additionally, Plaintiffs have failed to allege they are duly appointed representatives for the minors. Under the Federal Rules, “[a] minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action.” Fed.R.Civ.P. 17(c)(2). However, “a next friend or guardian ad litem cannot step forward and assume on his own the authority to prosecute the infant plaintiff's suit; rather, his authority is based on appointment by the court.” Geneseo, Inc. v. Cone Mills Corp., 604 F.2d 281, 285-86 (4th Cir. 1979). Although the pro se Plaintiffs could seek permission from the court to act as the minors' duly appointed representative, because they cannot act as their minor children's counsel in a pro se capacity, it is recommended that the minors' claims be dismissed without prejudice.
2. Count II - N.C. Gen. Stat. § 14-401.14, Ethnic Intimidation
Plaintiffs attempt to assert a claim under N.C. Gen. Stat. § 14-401.14, Ethnic Intimidation, which provides that “[i]f a person shall, because of race, color, religion, nationality, or country of origin, assault another person, or damage or deface the property of another person, or threaten to do any such act, he shall be guilty of a Class 1 misdemeanor.” N.C. Gen. Stat. § 14-401.14(a). The statute also criminalizes assembling to teach any technique to be used for ethnic intimidation. Id. § 14-401.14(b). The Ethnic Intimidation statute is a criminal statute that does not create a private civil cause of action. See Tribble v. Reedy, 888 F.2d 1387,1989 WL 126783 (4th Cir. 1989) (per curiam) (“Unless there is a clear Congressional intent to provide a civil remedy, a plaintiff cannot recover civil damages for an alleged violation of a criminal statute.”); Dingle v. Baggett, No. 5:19-CV-00425-D, 2020 WL 5245986, at *5 (E.D. N.C. July 31, 2020) (“[C]riminal statutes ‘proscribe crimes; they do not, of themselves, create civil liability.'”) (quoting Kebort v. Stiehl, No. 5:17-CV-418-D, 2018 WL 2927762, at *3 (E.D. N.C. May 17, 2018)), objections overruled, 2020 WL 5217393 (E.D. N.C. Sept. 1, 2020), aff'd, 860 Fed.Appx. 41 (4th Cir. 2021). Accordingly, it is recommended this claim be dismissed with prejudice.
3. Claims Against Amanda Parker
Plaintiffs allege that Amanda Parker, along with Woodard and Taylor Parker, moved into a rental home adjacent to Plaintiffs' property and made racist and violent threats toward Plaintiffs. Compl. [DE-1] ¶¶ 1,3,7. Plaintiffs also allege that law enforcement was cautious about interacting with Amanda Parker because she works in the Columbus County Prosecutors Office. Id. ¶ 7. While the complaint contains several specific allegations of racially motivated harassing and intimidating conduct by Woodard and Taylor Parker, it contains no specific allegations of such conduct by Amanda Parker. See generally, Compl. [DE-1] ¶¶ 25-73.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 570). Here, Plaintiffs have only made conclusory allegations against Amanda Parker that are insufficient to state a claim. See Twombly, 550 U.S. at 555; Smith v. Wiggins, No. 2:21-CV-9-BO, 2021 WL 1238223, at *1 (E.D. N.C. Apr. 1,2021) (finding conclusory allegations of discrimination without factual support were insufficient to state a § 1982 claim), aff'd, No. 21-1382, 2022 WL 4534271 (4th Cir. Sept. 28, 2022) (citing Lewis v. Bent, No. 4:16-CV-79-FL, 2018 WL 4222868 at *4 (E.D. N.C. Sept. 5, 2018) (finding that plaintiff's race discrimination claims failed when the complaint only included “unsupported and conclusory allegations”); Bass v. E.L DuPont de Nemours & Co., 324 F.3d 761,765 (4th Cir. 2003) (“[W]hile a plaintiff is not charged with pleading facts sufficient to prove [his] case, as an evidentiary matter, in [his] complaint, a plaintiff is required to allege facts that support a claim for relief”), cert, denied, 540 U.S. 940 (2003)). Accordingly, it is recommended that the claims against Amanda Parker be dismissed without prejudice.
4. Remaining Claims
Upon review of Plaintiffs' remaining claims against Woodard and Taylor Parker under § 1982 and for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence, the court finds that dismissal on frivolity review under § 1915(e)(2)(B) is not appropriate at this time.
Title 42 U.S.C. § 1982 (1994) provides that, “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” To succeed on a claim, “a plaintiff must demonstrate that defendant impeded or restricted the use of his or her property on the basis of their race.” Frazier v. Cooke, No. 4:17-CV-54, 2017 WL 5560864, at *5-6 (E.D. Va. Nov. 17, 2017) (citing Bradley v. Carydale Enter, TiQ F.Supp. 709, 717 (E.D. Va. 1989)). In Frazier v. Cooke, the court found that allegations of defendants honking their horn when driving by plaintiffs' home, aggressively questioning plaintiffs' family member to force them to leave a residential beach, and stating they would buy plaintiffs' home and evict them, all after a physical altercation that involved the use of racial slurs, were sufficient evidence to infer racial animus. Id. at *5. The Frazier court also found that plaintiffs' allegations that they feared for their safety and no longer felt comfortable outside their home were sufficient to plead that the racial animus interfered with their ability to “hold” property. Id. at *6. Similarly, here, Plaintiffs allege that Defendants Woodard and Taylor Parker have driven their vehicles on the road in front of Plaintiffs' house “revving” their engines; Woodard repeatedly fired his handgun indiscriminately in the air from his back yard at night; Taylor Parker threatened to harm Raymond Jett and to destroy Plaintiffs' yard with his truck; two juvenile guests of Woodard, motivated by Woodard's disdain for Plaintiffs, went onto Plaintiffs' property and shot Raymond Jett and his minor daughter with pellet guns; and Woodard and Parker yelled “we gave you your freedom” at Plaintiffs, “Nigger lover” at Tara Jett, and “you should have stayed away” upon Plaintiffs' return from a vacation. Id. ¶¶ 4-5, 9, 31-40, 56. Plaintiffs also allege that they felt threatened by Woodard and Parker and have lived in constant fear of them and suffered emotional distress, including humiliation, mental anguish, and physical distress and harm. Id. ¶¶ 8, 57,63-69, 73.
As for the state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence, the allegations are sufficient to proceed past frivolity review. See Russ v. Causey, 732 F.Supp.2d 589, 607 (E.D. N.C. 2010) (to state a claim for intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct by the defendants (2) which is intended to and does in fact cause (3) severe emotional distress) (citing Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994)); Bratcher v. Pharm. Prod. Dev., Inc., 545 F.Supp.2d 533, 545 (E.D. N.C. 2008) (“To state a claim for [negligent infliction of emotional distress], ‘a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress ..and (3) the conduct did in fact cause the plaintiff severe emotional distress.'” (quoting Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 3T1 N.C. 283, 304, 395 S.E.2d 85, 97 (1990)); R.A. v. Iredell-Statesville Sch. Dist. Bd. of Educ., No. 5:20-CV-00192-KDB-SCR, 2023 WL 8461634, at *9 (W.D. N.C. Dec. 6, 2023) (“In North Carolina, negligence has three essential elements: ‘(1) a legal duty owed by the defendant to the plaintiff, (2) a breach of that legal duty, and (3) injury proximately caused by the breach.'”) (quoting Keith v. Health-Pro Home Care Services, Inc., 873 S.E.2d 567, 574 (N.C. 2022)). Any potential defenses are better evaluated on a fully briefed motion.
Accordingly, it is recommended that Plaintiffs' remaining claims against Woodard and Taylor Parker under § 1982 and for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence be allowed to proceed at this time.
III. CONCLUSION
For the reasons stated above, Plaintiff Raymond Jett's application to proceed in forma pauperis is allowed, and Tara Jett must file an application to proceed in forma pauperis or pay the filing fee by no later than February 1, 2024, or her claims may be dismissed; and it is recommended that the claims on behalf of the minor children be dismissed without prejudice, Count II alleging a violation of N.C. Gen. Stat. § 14-401.14 be dismissed with prejudice, the claims against Defendant Amanda Parker be dismissed without prejudice, and the remainder of the claims be allowed to proceed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until February 1, 2024 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).