McNair v. United States of America

Filing 9

ORDER adopting Report and Recommendations regarding the 4 Memorandum and Recommendations; denying as moot 6 Motion for protection; denying 7 Motion for protection; granting 1 Motion for Leave to Proceed in forma pauperis. The Complaint is DISMISSED. Signed by Senior Judge James C. Fox on 10/29/2012. Copy sent to the plaintiff via US Mail. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4: 12-CV-139-F

ANTHONY LEE MCNAIR,
Plaintiff,

v.
UNITED STATES OF AMERICA,
Defendant.

)

)

)

)
)

)
)

ORDER

This matter is before the court for consideration of United States Magistrate Judge
William A. Webb's Memorandum and Recommendation ("M&R") [DE-4] on the pro se
Plaintiff's motion for leave to proceed inJormapauperis [DE-I]. Judge Webb recommends
Plaintiff's motion to proceed in forma pauperis be allowed, but that his complaint be dismissed
as frivolous under 28 U.S.c. § 1915. Plaintiff has filed an objection [DE-5] to the M&R, and
two additional motions: "Motion for Protection and Speedy" [DE-6] and "Speedy Prayer
Motion(s) for Protection" [DE-7].
ANALYSIS

As Judge Webb noted in the M&R, Plaintiffhas filed more than a dozen actions in this
court, most of which has been dismissed as frivolous. See McNair v. Tarboro Dist. Atty's Office,
No. 5: ll-CV-122-FL, 2011 U.S. Dist. LEXIS 46922, at *1 n.1 (E.D.N.C. May 2,2011)
(unpublished) (collecting cases). As a result of these frivolous lawsuits, Plaintiff is now subject
to a pre-filing injunction enjoining him from filing any suit seeking monetary damages for
constitutional violations with respect to state court convictions that have not been invalidated as
required by Heck v. Humphrey, 512 U.S. 477 (1994), or any suit involving a constitutional

challenge to ongoing or recently terminated state court criminal proceedings where the challenge
could instead have been brought within those proceedings.
In the M&R, Judge Webb concludes that Plaintiff has complied with the prefiling
injunction because he appears to request injunctive relief only. Nevertheless, Judge Webb
recommends that Plaintiffs proposed complaint be dismissed. Judge Webb accurately describes
the proposed complaint attached to Plaintiff's motion for leave to proceed in forma pauperis as
"chiefly gibberish." M&R [DE-4] at p. 2. Plaintiff designates the "United States" as the
defendant in the caption of the proposed complaint, but goes on to a list a number of individuals
within the body of the complaint-some of them employees of the United States District Court,
and the others various officials employed by political subdivisions of the State ofNorth Carolina,
based on the allegations raised in Plaintiffs numerous other actions. As Judge Webb accurately
observes, Plaintiff's proposed complaint sets forth nothing more than "labels and conclusions"
and contains no facts stating a cognizable claim.

In response to Judge Webb's M&R, Plaintiff filed a document captioned "Responses and
Replies" [DE-5], which this court construes as an objection to the M&R. Within the document,
Plaintiff attempts to provide factual support for the various labels and conclusions he asserted in
his original proposed complaint. Even if the court construes this document as an attempt to
amend his proposed complaint, however, the action still must be dismissed as frivolous.
First, as mentioned above, Plaintiff names the "United States" as the sole Defendant. The
vast majority of the allegations contained in Plaintiffs "Responses and Replies," however,
concern law enforcement officers and prosecutors not employed by the United States, the City of
Rocky Mount police department, and officials of the City of Rocky Mount and the County of

2

Tarboro. It is not apparent from Plaintiffs filings how the United States could be liable for the
actions of these local government employees and officials. Plaintiff merely alleges that he
"hold[s] the U.S of America liable for not protecting the Pro Se Anthony L. McNair as a citizen
of the U.S., whom guaranteed equal protection." Responses and Replies [DE-5] at p. 7. This is
insufficient to state a claim against the United States. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)("[A] complaint [will not] suffice it if tenders 'naked assertion[s]' devoid of 'further
factual enhancements."')(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
Second, to the extent that Plaintiff complains about rulings made in previous actions in
this court, he already has appealed those rulings to the Fourth Circuit Court of Appeals where
they were affirmed. See McNair v. Tarboro County District Attorney's Office, 5: 1O-CV-545-FL,
January 24,2011, Order dismissing Plaintiffs claims, aff'd, No. 11-1100 (4th Cir. March 21,

2011); McNair v. Rocky Mount District Attorney's Office, 5:IO-CV-546-FL, January 24,2011,
Order dismissing Plaintiffs claims, aff'd, No. 11-1161 (4th Cir. April 15, 2011); McNair v.

Rocky Mount District Attorney's Office, 5:IO-CV-561-FL, January 24, 2011, Order dismissing
Plaintiffs claims, aff'd, No. 11-1161 (4th Cir. April 15, 2011). To the extent that Plaintiff
attempts to allege that various Clerk of Court employees conspired with various state actors to
violate his rights, his conclusory and speculative allegations fail to state a claim against any of
the employees. See Stephens v. Herring, 827 F. Supp. 359, 365 (E.D. Va. 1993) (finding thatthe
plaintiff s conspiracy allegations against a federal judge failed as a matter of law where he only
alleged conclusions that the judge conspired with opposing parties and ruled against the plaintiff
in a previous action). Accordingly, Plaintiff fails to state any cognizable claim entitling to him
injunctive relief against the United States.

3

For the foregoing reasons, and upon a de novo review, the court ADOPTS the M&R, and
Plaintiff s application to proceed in forma pauperis [DE-I] is ALLOWED, but his Complaint is
DISMISSED.
CONCLUSION

Upon the court's de novo review and for the foregoing reasons, Plaintiff s application to
proceed in forma pauperis [DE-I] is ALLOWED, but his Complaint is DISMISSED. Any other
pending motions are DENIED as moot.
SO ORDERED.

J

r . . e )..

This the ~ day of October, 2012.

J

sC.Fox
Se lOr Umted States District Judge

4