Opinion
2:21-CV-42-D
06-07-2022
SUSAN W. VAUGHAN, Plaintiff, v. KATHLYN S. ROMM, an individual, RAY MATUSKO, an individual, COURTNEY HULL, an individual, MEADER W. HARRISS III, an individual, and DEPUTY CLERK DOE, an individual, Defendants.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the application [DE #1] by Plaintiff Susan W.Vaughan to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable James C. Dever III, United States District Judge. For the reasons set forth below, the court grants Plaintiff's application to proceed in forma pauperis and recommends that Plaintiff's complaint be dismissed in its entirety.
IFP MOTION
The standard for determining in forma pauperis status is whether “one 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.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiff's affidavit, the court finds that Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiff's application to proceed in forma pauperis is ALLOWED.
DISCUSSION
I. Background
Plaintiff sues Defendants in connection with 2013 state child welfare removal proceedings in Currituck County, North Carolina, involving her minor grandchild E.J.V. Plaintiff previously litigated this dispute, and extensive factual summary is provided in this court's orders in that prior case. See generally Vaughan v. Foltz, No. 2:16-CV-61-FL, 2019 WL 1265055 (E.D. N.C. Mar. 19, 2019) (summary judgment order), aff'd, 825. Fed.Appx. 131 (4th Cir. 2020), cert. denied, 141 S.Ct. 2831 (2021), petition for reh'g denied, 142 S.Ct. 1093 (2021). A summary of the procedural history of the state child welfare proceedings is available in Vaughan v. Romm, 256 N.C.App. 398, 806 S.E.2d 80 (Nov. 7, 2017) (unpublished table decision), review denied, 370 N.C. 581, 809 S.Ed.2d 873 (2018) (mem.), cert. denied, 139 S.Ct. 252 (2018), reh'g denied, 139 S.Ct. 589 (2018).
Judge Flanagan's summary judgment order summarizes the court's rulings with respect to frivolity review of Plaintiff's complaint in the prior case. Plaintiff also references this prior case several times in the instant action, specifically relying on discovery materials obtained in that matter. (Prop. Compl. [DE #1-1] at 6, 8-9, 11, 13-14, 19-21, 23, 27-29.)
In this action, Plaintiff alleges deprivations of her Eighth and Fourteenth Amendment rights, pursuant to 42 U.S.C. §§ 1983 & 1985, including claims pursuant to Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). (Prop. Compl. [DE #1-1] at 3-5.) Plaintiff states: “This lawsuit is based predominantly on the facts and evidence provided by the sworn (9/28/2018) testimony of Defendant Ray Matusko, discovered for the first time by Plaintiff . . . on October 1, 2018.” (Id. at 14 (citing Pl.'s Suppl. Resp. Opp'n Mot. Summ. J., Ex. 55,Vaughan v. Foltz, No. 2:16-CV-61-FL, ECF No. 147-13 (E.D. N.C. Nov. 29, 2018)).) Plaintiff seeks injunctive relief in the form of an expungement of all records relating to the child welfare matter and at least $500,000 in damages. (Prop. Compl. at 37.)
Identification of each Defendant is helpful for ease of explanation. Defendant Hull is an attorney for Currituck County Department of Social Services (“Currituck DSS”); Defendant Romm is the director of Currituck DSS; Defendant Matusko is the Clerk of Court of Currituck County; Defendant Harriss is a former assistant public defender who represented Plaintiff in the child welfare matter and currently serves as a state district court judge; and Defendant Doe is an unnamed deputy clerk working for Defendant Matusko. (Prop. Compl. at 38.) See also Order and M&R, Vaughan v. Foltz, No. 2:16-CV-61-FL, 2017 WL 9480142, at *2 (E.D.N.C May 8, 2017) (summarizing identities of defendants), recommitted for supplemental mem. & recommendation, 5/24/2017 Text Order (E.D. N.C. May 24, 2017).
Plaintiff's core allegation is that her Fourteenth Amendment right to due process was violated via injury to her reputation, which impinged upon her “right to custody and adoption of her grandson.” (Prop. Compl. at 35.) These alleged harms flow from (i) Plaintiff being coerced into agreeing to a written stipulation that E.J.V. was neglected while in Plaintiff's care, to the extent Plaintiff had not been notified that Currituck DSS had decided not to proceed on a juvenile petition alleging E.J.V. was “seriously neglected” (id. at 6, 21, 26); (ii) Defendant Matusko and Defendant Deputy Clerk Doe's failure to schedule a hearing regarding Plaintiff's possible placement on the state Responsible Individuals List (“RIL”), in violation of N.C. Gen. Stat. § 7B-323 (id. at 7-8, 13, 18, 29); and (iii) Defendant Hull and Defendant Romm's failure to notify Plaintiff that Currituck DSS was not proceeding on the serious neglect allegation, in violation of N.C. Gen. Stat. § 7B-320 (id. at 6, 9-10, 20-21, 26, 32-33).
This stipulation is available at App'x Stmt. Facts, Ex. 8 (sealed),Vaughn v. Foltz, No. 2:16-CV-61-FL, ECF No. 63-8, at 11-12 (E.D. N.C. Apr. 9, 2018). The stipulation was referenced in the state order adjudicating E.J.V. neglected. Id. at 1522. Plaintiff repeatedly characterizes this stipulation as fraudulent. (Prop. Compl. at 7, 10-11, 21-22, 26-27.)
Plaintiff seeks to bring several additional claims, all of which relate to the foregoing due process claim. First, she alleges that Defendants Romm, Hull, and Harriss engaged in a conspiracy to pressure Plaintiff into agreeing to the written stipulation discussed above, in violation of 42 U.S.C. § 1985. (Prop. Compl. at 3-4, 10-13, 22-23.) Second, she purports to assert Monell claims that (i) Defendant Matusko has implemented an official policy of not scheduling for hearing petitions for judicial review unless such requests are submitted to his office on pre-printed North Carolina Administrative Office of the Courts (“AOC”) forms and (ii) Currituck DSS does not train its agents to conduct background checks on prospective foster and adoptive parents, as evidenced by E.J.V.'s adoptive father having a criminal history. (Prop. Compl. at 3-4, 36.) Third, she claims to have suffered cruel and unusual punishment in violation of the Eighth Amendment from being denied the right to adopt and to have visitation with E.J.V. and as a result of Currituck DSS' negligent adoption of E.J.V. to an unfit person. (Prop. Compl. at 33-34.)
II. Standard for Frivolity Review
Notwithstanding the determination that Plaintiff is entitled to IFP status, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). 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. In making the “inherently elastic” frivolity determination, Nagy v. FMC Butner, 376 F.3d 252, 256-57 (4th Cir. 2004), the court may “apply common sense,” Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of suit as frivolous where complaint “failed to contain any factual allegations tending to support [plaintiff's] bare assertion”). The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support her claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
III. Analysis
A. Fourteenth Amendment Due Process Claim
Plaintiff alleges that her right to due process was violated when Currituck DSS, through Defendants Romm and Hull, coerced Plaintiff into stipulating that E.J.V. did not receive proper medical care and lived in an environment injurious to his welfare while Plaintiff served as E.J.V.'s caretaker because Defendant Romm had dismissed the petition alleging “serious neglect” against Plaintiff before engaging in negotiations regarding the stipulation. Plaintiff avers that had she known the petition alleging serious neglect had already been dismissed, she never would have agreed to the stipulation. She further avers that these defendants did this knowing said stipulation would prevent Plaintiff from adopting E.J.V.
Plaintiff made this same allegation in her earlier federal case. See Vaughan, 2019 WL 1265055, at *3 (granting Plaintiff's “motion requesting ‘to address how the threat of the RIL and prosecution of serious neglect were fraudulently misused in a way that violated [Plaintiff's] due process rights injuring her and her family' only to the extent these allegations are related to plaintiff's surviving claim for injury to her reputation”), *6 (summarizing facts related to Plaintiff's due process claim for injury to reputation and noting that Plaintiff has alleged she was coerced into signing the written stipulation in the child welfare matter); Pl.'s Resp. Opp'n Mot. Summ. J., Vaughan v. Foltz, No. 2:16-CV-61-FL, ECF No. 108, at 25-26 (E.D. N.C. Aug. 13, 2018) (“The stipulation was forced upon Plaintiff and [E.J.V.'s mother, Plaintiff's adult daughter] exactly two months after [the petition alleging serious neglect] was filed, meaning there was plenty of time for . . . the Director [Defendant Romm] to perform her legal responsibility of properly informing Plaintiff of the charge and its implications”); Pl.'s Request for Correction of August 28 Order, Vaughan v. Foltz, No. 2:16-CV-61-FL, ECF No. 130, at 1-2 (E.D. N.C. Sept. 4, 2018). The court determined that no constitutional violation had been committed as to Plaintiff's reputation and, consequently, that no procedural due process violations occurred with regard to Currituck DSS' failure to notify Plaintiff regarding the serious neglect allegation and Defendant Matusko's failure to schedule a hearing for Plaintiff's petition for judicial review. Vaughan, 2019 WL 1265055, at *15-18.
Plaintiff disagrees with Judge Flanagan's legal analysis, as evidenced by her argument that the reference to Riccio v. City of Fairfax, 907 F.2d 1459 (4th Cir. 1990), is flawed. (Prop. Compl. at 27-28, 33.)
Plaintiff's assertion that the evidence obtained from Defendant Matusko via the discovery process in the earlier lawsuit is “new” (Prop. Compl. at 6, 28, 61) is wrong. Plaintiff was in possession of that evidence before Judge Flanagan's summary judgment ruling. Pl.'s Suppl. Resp. Opp'n Mot. Summ. J., Ex. 55,Vaughan v. Foltz, No. 2:16-CV-61-FL, ECF No. 147-13 (E.D. N.C. Nov. 29, 2018). And Judge Flanagan considered and analyzed the very claim regarding Defendant Matusko that Plaintiff advances in this action. Vaughan, 2019 WL 1265055, at *18.
Plaintiff's due process claim based on injury to reputation caused by Defendants Romm, Hull, Matusko, and Deputy Clerk Doe has previously been adjudicated by this court. Plaintiff's attempt in this action to re-litigate that claim should be dismissed as frivolous, see Neitzke, 490 U.S. at 325, 327, or for failure to state a claim, Laake v. Lulu Enters., Inc., No. 5:18-CV-461-FL, 2019 WL 1861318, at *2 (E.D. N.C. Apr. 25, 2019) (applying res judicata in frivolity review). See also In re Varat Enters., Inc., 81 F.3d 1310, 1314-15 (4th Cir. 1996) (“Under res judicata principles, a prior judgment between the same parties can preclude subsequent litigation on those matters actually and necessarily resolved in the first adjudication.”); Ohio Valley Envtl Coal. v. Aracoma Coal Co., 556 F.3d 177, 210-211 (4th Cir. 2009) (“Even claims that were not raised in the original suit may be precluded if they arose from the same transaction or occurrence as those raised in the first suit and were available to the plaintiff at the time of the first suit.” (citing Aliff v. Joy Mfg. Co., 914 F.2d 39, 42-43 (4th Cir. 1990)).
It is unclear whether Plaintiff intends to name Defendant Harriss as a defendant in her Fourteenth Amendment claim or only as a conspirator in her § 1985 claim. To the extent she intends to name Defendant Harriss as a defendant in her Fourteenth Amendment claim, Defendant Harriss, as a former public defender who represented Plaintiff, is not a state actor under § 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 321 (1981); Vaughan, 2019 WL 1265055, at *16 n.33 (addressing this issue in Plaintiff's earlier lawsuit and citing Dodson).
B. Section 1985, Eighth Amendment, and Monell Claims
Plaintiff's Section 1985, Eighth Amendment, and Monell claims should also be dismissed as frivolous or for failure to state a claim. These claims all arise out of the same transaction or occurrence litigated in Plaintiff's prior action and could all have been presented in that action. See Ohio Valley Envtl. Coal., 556 F.3d at 210-11; Varat Enters., 81 F.3d at 1315-16 (explaining that res judicata bars claims that “might have been presented” in the initial litigation and that “[a]ctual knowledge of a potential claim is not a requirement” for application of res judicata). Accordingly, Plaintiff's § 1985, Eighth Amendment, and Monell claims are all barred by res judicata. Even assuming these claims are not barred by res judicata, they are also subject to dismissal as frivolous or for failure to state a claim for the following reasons.
Section 1985 requires, among other things, that a plaintiff show the alleged conspiracy “was motivated by ‘some racial, or perhaps otherwise class-based invidiously discriminatory animus.'” Vaughan v. Foltz, No. 2:16-CV-61-FL, 2017 WL 4872484, at *6 n.8 (E.D. N.C. Oct. 27, 2017) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Plaintiff has alleged no such motivations here. Therefore, her § 1985 claim should be dismissed as frivolous or for failure to state a claim. To whatever extent Plaintiff intends to allege a civil conspiracy claim under § 1983, such a claim should also be dismissed because there is no underlying deprivation of Plaintiff's due process right based on reputational injury for the reasons explained in Vaughan, 2019 WL 1265055, at *15-18. See Massey v. Ojanit, 759 F.3d 343, 358 (4th Cir. 2014) (citing Glassman v. Arlington Cnty., 628 F.3d 140, 150 (4th Cir. 2010)).
The scope of the Eighth Amendment is limited to matters involving criminal process. See generally Ingraham v. Wright, 430 U.S. 651, 664-69, 671 n.40 (1977). Plaintiff has not alleged she was subjected to criminal punishment, as that is understood in federal law. Accordingly, this claim should be dismissed.
To establish liability against a local government under § 1983, a plaintiff must show that the alleged constitutional injury is attributable to an official policy, procedure, or custom of the local government entity. Monell, 436 U.S. at 694; Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (Monell claim requires proof of deprivation of federal statutory or constitutional right through an official policy or custom); Johnson v. Allen, 416 F.Supp.3d 550, 558 (E.D. N.C. 2018) (noting that a “plaintiff must plausibly allege that a ‘policy or custom' attributable to the [local governmental entity] caused the violation of the plaintiff's federally protected rights” in a § 1983 action against a county). Plaintiff's Monell claims should be dismissed as frivolous or for failure to state a claim because (i) Plaintiff has not named a local government entity as a defendant and (ii) Plaintiff has failed to allege the violation of a federally protected right by a local government entity, as explained in Vaughan, 2019 WL 1265055, at *15-18.
CONCLUSION
For the reasons stated above, Plaintiff's application to proceed in forma pauperis [DE #1] is GRANTED, and it is RECOMMENDED that Plaintiff's complaint be dismissed as frivolous or for failure to state a claim upon which relief can be granted.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. Plaintiff is hereby advised as follows:
You shall have until June 24, 2022, 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. Dec. 2019).
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 may 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).