Opinion
2:19-CV-17-BO
06-11-2019
DESPINA N.A. LUCAS, dba ALL THINGS, Plaintiff, v. COUNTY OF DARE, NORTH CAROLINA; COUNTY OF PAMLICO, NORTH CAROLINA; COURT DISTRICT 3B, NORTH CAROLINA; CITY OF NAGS HEAD, NORTH CAROLINA; CITY OF KILL DEVIL HILLS, NORTH CAROLINA; CITY OF KITTY HAWK, NORTH CAROLINA; STATE OF NORTH CAROLINA; CITY COUNTY OF NEWPORT NEWS, VIRGINIA; CITY COUNTY OF HAMPTON, VIRGINIA; COMMONWEALTH OF VIRGINIA; CHRISTOPHER NEWPORT UNIVERSITY; and UNITED STATES OF AMERICA, Defendants.
ORDER and MEMORANDUM AND RECOMMENDATION
This pro se case is before the court on the motion to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. See D.E. dated 2 May 2019.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he "cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself 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). The court finds that plaintiff has adequately demonstrated her inability to prepay the required court costs. Her motion to proceed in forma pauperis is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). Based on this review and for the reasons stated below, it will be recommended that plaintiff's purported claims be dismissed.
I. PLAINTIFF'S ALLEGATIONS AND PURPORTED CLAIMS
In her proposed complaint, plaintiff names as defendants the United States, the Commonwealth of Virginia, the State of North Carolina, a number of cities and counties in Virginia and North Carolina, a North Carolina state court, and a university in Virginia, Christopher Newport University. Compl. (D.E. 1-1) 2-6 § I.B. Plaintiff alleges that she was wrongfully cited multiple times and convicted three or four times for failure to have her old and "ratty" RV (or camper) inspected in Virginia based on the lack of a decal on the RV showing inspection. Id. at 8, 10, 11 § III.A. The convictions were allegedly wrongful, in part, because plaintiff had, in fact, had the RV inspected and the RV lacked a decal showing inspection only because Virginia did not issue such decals for RVs. Id. at 8 § III.A. The convictions were also allegedly improper because plaintiff was not offered a public defender despite qualifying for one and she was denied continuances to enable her to obtain proof of the inspections. Id. at 10 § III.A.; 7, 9 § III.B. In two instances, plaintiff was allegedly apprehended by officers who lacked jurisdiction to do so. Id. at 10 § III.A.
Because the proposed complaint includes two sets of inserts separately numbered by plaintiff, the court's page citation to the proposed complaint will be to the CM/ECF pagination.
The text in page 8 continues onto page 10, not page 9.
Plaintiff also complains that she was wrongfully directed not to return to or appear in any courthouse in the United States for parking her car in front of the Hampton County Courthouse with the RV attached. Id. at 10-11 § III.A. She alleges that this directive has resulted in dismissal of cases brought by her in North Carolina Court District 3B ("North Carolina Judicial District 3B") and Dare County. Id. at 11 ¶ III.A.
Claims by plaintiff brought in this court against two state court judges who issued gatekeeping orders against her were dismissed pursuant to a frivolity review. See Ord. (D.E. 5), Lucas v. United States, No. 4:15-CV-188-BO (E.D.N.C. 22 Dec. 2015).
Plaintiff further claims that she has been wrongfully cited 15 times, and convicted so far on 2 such citations, for driving without a North Carolina driver's license when, in fact, she is permitted to drive by the National Driver Registry. Id. at 12 § III.A. She was allegedly convicted on one such charge based on perjured testimony. Id. In this or the other case resulting in conviction, she was allegedly jailed and forced to retract her request for an appeal and pay the $230 fine to obtain her release from jail. Id. Plaintiff claims she was denied defense counsel in both cases in which she was convicted. Id.
Read liberally, as they must be, plaintiff's purported claims arise under 42 U.S.C. § 1983 ("§ 1983"), though she does not cite that statute or identify any basis for the court's jurisdiction in her proposed complaint, which is on a preprinted form for negligence cases. Her civil cover sheet indicates that she is alleging violations of her Fifth Amendment, Sixth Amendment, and Fourteenth Amendment rights resulting from wrongful traffic citations, wrongful convictions, negligence, and harassment. Civ. Cover Sheet (D.E. 1-4) § VI. Plaintiff seeks $50 million in damages for "mental anguish, financial harm, background damage, harassment, Online business retailer reputation damage, [being] stolen from, credibility as a Private Investigator and Geological Engineer [being] damaged and [being] made a fool of." Id. at 12 § III.A; see also id. at 3, 7 § II.C.
II. APPLICABLE LEGAL STANDARDS
A. Standards for Frivolity Review
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton, 504 U.S. at 27 (standard for frivolousness). Although in evaluating frivolity a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys, White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989), the court is not required to accept a pro se plaintiff's contentions as true, Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327. Such baseless claims include those that describe "fantastic or delusional scenarios." Id. at 328. Provided that the plaintiff's claims are not clearly baseless, the court must weigh the plaintiff's factual allegations in his favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if the plaintiff has alleged specific facts sufficient to support his claims. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that "[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress." Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ("The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction."). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3).
B. Section 1983
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)).
III. DISCUSSION
A. Subject Matter Jurisdiction
The court finds that it lacks subject matter jurisdiction over plaintiff's purported claims because they concern state proceedings subject to the Rooker-Feldman doctrine and Younger abstention doctrine.
1. Rooker-Feldman Doctrine
The Rooker-Feldman doctrine bars federal courts from sitting "in direct review of state court decisions." District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-84 (1983). "[T]he Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself." Davani v. 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). A constitutional claim is "inextricably intertwined" with a state court decision if "'success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.'" Id. (quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)); see also Curley v. Adams Creek Assocs., 409 F. App'x 678, 680 (4th Cir. 2011) (holding that Rooker-Feldman precluded subject matter jurisdiction over plaintiff's claim that the state court violated her due process rights by failing to give her notice before disposing of real property owned by her); Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997) (holding that a federal claim is "'inextricably intertwined" where "in order to grant the federal relief sought, the federal court must determine that the [state] court judgment was erroneously entered or must take action that would render the judgment ineffectual'" (quoting Ernst v. Child and Youth Servs., 108 F.3d 486, 491 (3d Cir. 1997))).
In other words, Rooker-Feldman applies "when the federal action 'essentially amounts to nothing more than an attempt to seek review of [the state court's] decision by a lower federal court.'" Davis v. Durham Mental Health Devel. Disabilities Substance Abuse Area Auth., 320 F. Supp. 2d 378, 388 (M.D.N.C. 2004) (quoting Plyer v. Moore, 129 F.3d 728, 733 (4th Cir. 1997)). "The key inquiry is not whether the state court ruled on the precise issue raised in federal court, but whether the 'state-court loser who files suit in federal court seeks redress for an injury caused by the state-court decision itself.'" Willner v. Frey, 243 F. App'x 744, 747 (4th Cir. 2007) (quoting Davani, 434 F.3d at 718). "'[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights.'" Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).
Here, plaintiff appears to be seeking, in part, to litigate in this court the propriety of state court convictions against her for failing to have her RV inspected and driving without a North Carolina driver's license and the proceedings resulting in those convictions. Any such claims by plaintiff are barred by Rooker-Feldman because a determination of the claims in her favor could require this court to find that completed state court convictions were conducted in an improper manner, produced an improper result, or both. See, e.g., Dajani v. Governor and Gen. Assembly of Md., 15 F. App'x 122 (4th Cir. 2001). In Dajani, the Fourth Circuit affirmed a district court's dismissal, pursuant to Rooker-Feldman, of a § 1983 challenge to the Maryland traffic code. The court held that "the federal courts lack jurisdiction over Dajani's constitutional challenges to the Maryland code because Dajani is necessarily asking the district court to conclude the Maryland court wrongly decided the issues before it, which the district court does not have jurisdiction to do." Dajani, 15 F. App'x at 123. Therefore, the purported claims by plaintiff challenging the propriety of the state court convictions and related proceedings she alleges should be dismissed for lack of subject matter jurisdiction. Plaintiff, of course, retains access to the state courts for pursuit of the relief she seeks.
For comparable reasons, plaintiff's challenge to the order allegedly barring her from appearing in state courthouses is subject to dismissal. She has recourse to the state courts for the relief she seeks from that alleged order.
The court finds bordering on the fanciful plaintiff's allegation that after stating her intention to appeal from a conviction for driving without a license she was jailed and forced to drop the appeal and pay the fine imposed for the conviction to obtain her release. To the extent this allegation is credited, any claim arising from it is barred by the Rooker-Feldman doctrine and should be dismissed. She has not shown that she exhausted the state-law remedies available to her for this alleged misconduct.
To the extent that plaintiff alleges she was barred from appearing at any federal courthouse for wrongfully parking her RV at the Hampton County Courthouse, the court finds the allegation fanciful on its face and does not credit it.
2. Younger Abstention Doctrine
Younger v. Harris, 401 U.S. 37 (1971) established the principle that federal courts should not intervene in state court criminal, civil, and administrative proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). "Younger and 'its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.'" Beam v. Tatum, 299 F. App'x 243, 245 (4th Cir. 2008) (quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982)). Abstention is required where "(1) there is an ongoing state judicial proceeding brought prior to substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides adequate opportunity to raise constitutional challenges." Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006).
Here, plaintiff alleges proceedings against her for failing to have her RV inspected and driving without a license while not also alleging that they have all been concluded. The proceedings not alleged to have been concluded therefore appear to be ongoing.
All three elements of the Younger abstention doctrine are met with respect to the purported claims arising from these cases. First, as indicated, the state judicial proceedings in these cases appear to be ongoing. Second, matters relating to the regulation of motor vehicles and motor vehicle traffic unquestionably implicate important state interests. Delaware v. Prouse, 440 U.S. 648, 658 (1979) ("We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are safe for operation, and hence that licensing, registration, and vehicle inspection requirements are being observed."); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 442 (1978) ("[A] State has a legitimate interest in regulating motor vehicles using its roads in order to promote highway safety."). Even in a case in which the defendant was a federal officer seeking removal pursuant to 28 U.S.C. § 1442, the Fourth Circuit found that "the facts in dispute . . . do not speak to the federal character of the incident" and held that the federal district court lacked subject matter jurisdiction, as the general factual and legal questions incident to ordinary traffic cases "are simply matters for the state courts to resolve." North Carolina v. Ivory, 906 F.2d 999, 1002 (4th Cir. 1990). Third, plaintiff has an adequate state forum to pursue her constitutional and other claims. Beam v. Tatum, 299 F. App'x 243, 248 (4th Cir. 2008).
The court accordingly concludes that the principle of abstention under Younger provides an independent ground for dismissal for lack of subject matter jurisdiction of plaintiff's purported claims regarding the ostensibly ongoing state motor vehicle-related proceedings against her. See Carter v. Archdale Police Dep't, No. 1:13cv613, 2014 WL 791863, at *4 (M.D.N.C. 25 Feb. 2014) ("It is clear that [plaintiff] believes that the pending state criminal charges against him lack merit, but he must challenge the legitimacy of the charges against him in state criminal court and then, if necessary, pursue appropriate relief.").
B. Failure to State a Claim
Irrespective of the lack of subject matter jurisdiction over this case, plaintiff has failed to state a claim upon which relief can be granted with respect to all of the defendants.
1. Eleventh Amendment Immunity
"As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity." Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). Similarly, the Eleventh Amendment limits the authority of the federal courts to hear claims against the states. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984); Beeson v. South Carolina, No. CV 2:16-1164-RMG-BM, 2016 WL 4394506, at *4 (D.S.C. 13 July 2016) ("The Eleventh Amendment to the United States Constitution divests this Court of jurisdiction to entertain a suit for damages brought against the State of South Carolina, its integral parts, or its officials in their official capacities, by a citizen of South Carolina or a citizen of another state."), rep. & recomm. adopted, 2016 WL 4370032 (12 Aug. 2016). A state may waive its sovereign immunity against suit in federal court, but such waiver must be unequivocally expressed. Pennhurst, 465 U.S. at 99. Similarly, while Congress may abrogate the Eleventh Amendment in legislation under the Fourteenth Amendment, an unequivocal expression of Congress' intent to do so is required. See id.
By its terms, the amendment addresses only suits against a State by citizens of another state or another country and provides: "The 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 limitation effected by sovereign immunity applies to claims against a state and its agencies regardless of the nature of the relief sought. Id. at 100 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933)). Courts have held specifically that the Eleventh Amendment precludes claims against a state and its instrumentalities brought pursuant to § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (§ 1983 does not authorize an action against a state or its entities); Waddell v. MRDCC MTC Hosp. Unit the Facilities Hosp. at MTC Md. Dep't of Corr., No. CV DKC-15-3517, 2016 WL 4721259, at *5 (D. Md. 9 Sept. 2016) ("[S]tate agencies are immune from liability under the Eleventh Amendment from a § 1983 suit in federal court without regard to the nature of the relief sought."); see also Coleman v. Bushfan, No. 2:15-CV-35-D, 2016 WL 3636017, at *4 (E.D.N.C. 8 June 2016) (recommending in frivolity review dismissal of claims against State of North Carolina and North Carolina Department of Corrections where plaintiff included "no allegations from which it may be inferred that the State of North Carolina has waived its immunity with respect to the claims Plaintiff alleges, nor does Plaintiff invoke a federal statute that abrogates North Carolina's sovereign immunity as to these claims"), mem. & recomm. adopted, 2016 WL 3640614 (29 June 2016). As instrumentalities of states, state courts are entitled to Eleventh Amendment immunity. Hamilton v. Ninth Judicial Circuit Court of Charleston Cty., No. 2:17-CV-921-MBS-MGB, 2017 WL 2373217, at *4 (D.S.C. 3 May 2017), rep. & recomm. adopted, 2017 WL 2362387 (31 May 2017).
Accordingly, plaintiff's purported claims against the United States, the Commonwealth of Virginia, the State of North Carolina, North Carolina Judicial District 3B, and Christopher Newport University, a Virginia public university, are subject to dismissal pursuant to the Eleventh Amendment.
See Commonwealth of Va. website, Listing of Va. public colleges and universities, https://www.schev.edu/index/students-and-parents/explore/virginia-institutions (last visited 11 June 2019); Fed. R. Ev. 201 (providing for judicial notice of adjudicative facts).
2. Municipal Policy or Custom Requirement under § 1983
While the Eleventh Amendment does not serve as a bar against plaintiff's purported claims against the rest of the defendants she has named, multiple counties and municipalities, Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001) ("Eleventh Amendment immunity 'does not extend to counties and similar municipal corporations'" (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977))), those purported claims nevertheless fail. In order to assert a § 1983 claim against a municipal entity, a plaintiff must plausibly allege the existence of a "policy or custom" that violated plaintiff's constitutional rights. See, e.g., Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 410 (1997); King v. Rubenstein, 825 F.3d 206, 223 (4th Cir. 2016). A violation is attributable to a "policy or custom" where the constitutional violation resulted from "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers," or a governmental "custom." Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). "If a plaintiff fails to allege facts giving rise to a plausible inference that the allegedly unconstitutional actions . . . were taken pursuant to official custom or policy of the agency, the claims must be dismissed." Williams v. Melochick, No. 5:18-CV-254-H, 2018 WL 8130558, at *2 (E.D.N.C. 5 Dec. 2018), rep. & recomm. adopted, 2019 WL 1867930 (15 Apr. 2019).
Here, plaintiff makes no express allegations of a municipal policy or custom that would plausibly form the basis of a cognizable claim against any of the counties or municipalities she has named. The purported claims against these remaining defendants are therefore subject to dismissal for failure to state a claim upon which relief can be granted.
IV. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's proposed complaint be DISMISSED.
IT IS DIRECTED that the Clerk serve a copy of this Oder and Memorandum and Recommendation on plaintiff. Plaintiff shall have until 25 June 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections 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).
SO ORDERED, this 11th day of June 2019.
/s/_________
James E. Gates
United States Magistrate Judge