Opinion
5:24-CV-204-M
05-21-2024
KIMARLO RAGLAND, Plaintiff, v. NC DIVISION OF EMPLOYMENT SECURITY, Defendant.
ORDERAND MEMORANDUM AND RECOMMENDATION
Robert B. Jonse, Jr. United States Magistrate Judge
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-2], and for frivolity review of the complaint, [DE-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated sufficient evidence of inability to pay the required court costs and the application is allowed. However, it is recommended that the complaint be dismissed for failure to state a claim.
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). 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . . Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). 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, 2 429 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. FACTUAL BACKGROUND
Plaintiff Kimarlo Ragland is embroiled in state court litigation with Defendant the North Carolina Division of Employment Security (the “Division”) involving the denial of Ragland's unemployment benefits from a prior employer. Compl. & Attachments [DE-1], Ragland was denied benefits at the administrative level and then sought judicial review in Vance County Superior Court. Id. Judge Dunlow affirmed the administrative denial, and Ragland filed a notice of appeal, which the Division moved to dismiss. Id. The Division also filed a motion for sanctions and prefiling injunction (the “motion”) against Ragland, asserting that he “has persisted in a course of filing frivolous alleged pleadings against Respondent and various presiding Judges” and has ignored unfavorable court orders and refilled identical or substantially similar baseless documents. [DE-1-5].
Ragland asserts in this matter that the Division's motion is an attempt to preclude his Sixth Amendment right to self-representation, falsely alleges his state court filings are frivolous, and is an attempt to silence him. [DE-1] at 5. Ragland also asserts that he is a member of a protected class, the Division's actions violate his civil rights (42 U.S.C. §§ 1981, 1983, 1985, 1988) and his Eighth Amendment right to be free from cruel and unusual punishment, and there is a conspiracy within the North Carolina judiciary to deny his right to self-representation. Id. at 3; [DE-6], Ragland seeks an injunction to preserve his right to self-representation. [DE-1] at 5. Ragland has also filed documents indicating he seeks to remove the motion to this court. [DE-1-18], [DE-7], 3
A supplemental filing contains an order from the Vance County Superior Court dismissing his appeal, [DE-7-4], and a gatekeeping order imposing a prefiling injunction against Ragland, [DE-7-5], which among other things prohibits Ragland from filing any document in the state court case without “[a]ppending an affidavit signed by a duly licensed attorney admitted to practice law in the State of North Carolina, which affidavit must state that the attorney has reviewed the document in its entirety and, upon review, believes that the proposed filing,” among other things, can survive a Rule 12 motion, does not violated Rule 11, and is not repetitive. Id. at 4.
III. DISCUSSION
Ragland has failed to state a civil rights or constitutional claim and removal is not appropriate. First, the fact that Ragland is a member of a protected class is not sufficient to plead unlawful discrimination under § 1981, and there are no facts to plausibly allege that “race was a but-for cause of the plaintiff's injury.” See Gary v. Facebook, Inc., 822 Fed.Appx. 175, 180 (4th Cir. 2020) (discussing § 1981 's but-for causation requirement) (citing Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020)). Second, Ragland's conclusory allegations of a conspiracy in the North Carolina state courts to violate his constitutional rights is insufficient to state a claim under § 1985. See A Soc 'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (“[W]e have specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.”) (citation omitted). Third, § 1988 is not itself a cause of action. See Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471, 474 (4th Cir. 1978). Fourth, § 1983 is an avenue to vindicate other federal statutory or constitutional rights, but Ragland has not stated a proper Sixth Amendment self-representation claim because the right applies in criminal not civil cases. See Moise v. Maryland, 858 Fed.Appx. 108 (4th Cir. 2021) (finding dismissal of access-to-courts claim based on the lower court requiring Moise to litigate his claim through counsel was appropriate because “the Sixth Amendment right to self-representation does not extend beyond a defendant's criminal trial”); Asset ad-Faltas v. McMaster, No. CV 3:20-1809-TLW-SVH, 2020 WL 7481739, at *8 (D.S.C. May 26, 2020) (finding South Carolina Supreme Court order prohibiting plaintiff from representing herself as a civil plaintiff and on appeal failed to state a constitutional violation because there is no constitutional right to self-representation in civil matters), adopted by. 2020 WL 7425868 (D.S.C. Dec. 18, 2020), affd, 853 Fed.Appx. 851 (4th Cir. 2021). Nor has he alleged any facts that could plausibly state an Eighth Amendment claim for the infliction of cruel and unusual punishment. Finally, removal under 28 U.S.C. § 1442(d)(1), [DE-1-18] at 2, is not appropriate because, among other things, the complaint fails to state a civil rights claim, and § 1442 applies to federal officer or agency cases. Accordingly, it is recommended this matter be dismissed for failure to state a claim.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Plaintiff's application to proceed in forma pauperis be allowed and that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until June 4, 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).