Johnston v. Patterson et al

Filing 5

ORDER DISMISSING CASE: This action is dismissed by the Court for lack of subject matter jurisdiction. Signed by US District Judge Terrence W. Boyle on 12/5/2014. Copy mailed to pro se plaintiff, via US Mail, to 276 Summitt Road, Littleton, NC, 27850. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
4:14-CV-210-BO
JAMES M. JOHNSTON,

)
)

Plaintiff,

v.

)

)

ORDER

)
CAROLYN PATTERSON, USDA Area Specialist;)
BARBARA BEARD-HINTON, Assistant State
)
Director of USDA, and HALIFAX CO.
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AGRICULTURE COMPLEX
)
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Defendants.
)

This matter is before the Court on plaintiff James Johnston's pro se application to proceed in

forma pauperis and for frivolity review. [DE 1]. For the reasons stated below, the motion to proceed in
forma pauperis is ALLOWED and plaintiffs claim is DISMISSED.
DISCUSSION
Based on the infonnation in the motion to proceed in forma pauperis, the Court finds that
plaintiff has adequately demonstrated his inability to prepay the required court costs. His motion to
proceed in forma pauperis is therefore allowed. 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).
It appears that this case is plaintiffs fifth lawsuit before this Court. All previous cases (No. 4:10CV-116-D; No. 4:10-CV-139-FL; No. 4:10-CV-176-FL; and No. 4:11-CV-184-FL) involved the same
factual allegations and were dismissed by the Court on frivolity review for lack of subject matter
jurisdiction. This case too must be dismissed for lack of subject matter jurisdiction. See Brickwood

Contractors, Inc. v. Datanet Eng'g, Inc., 369 FJd 385, 390 (4th Cir. 2004) noting that questions of
subject matter jurisdiction should be raised by the Court sua sponte).
Plaintiffs complaint raises claims that are essentially identical to those he sought to bring in prior
cases. See James M Johsnton v. Carolyn Patterson: USDA and Shawn Spears - S and J of Raleigh, No.

4:10-CV-176-FL; James McKinley Johnston v. Carolyn Patterson, USDA, No. 4:11-CV-184-FL. In those
cases the Court adopted the recommendations of the magistrate judges which recommended dismissal for
lack of subject matter jurisdiction due to plaintiffs failure to exhaust his administrative remedies with the
United States Department of Agriculture ("USDA"). Where plaintiff has raised the same claims, and
offered no evidence or argument in support of this Court's subject matter jurisdiction, the Court reaches
the same conclusion as it did in the prior case. See 7 U.S.C. § 6912(e); Gold Dollar Warehouse, Inc. v.

Glickman, 211 F.3d 93, 98 (4th Cir. 2000) (holding that§ 6912(e) is a jurisdictional requirement).
7 U.S.C. § 6912(e) requires a plaintiff to pursue his claims against the USDA and its employees
with the USDA before seeking relief in this Court. Specifically, this statute provides that "a person shall
exhaust all administrative appeal procedures established by the Secretary [of the Department of
Agriculture] or required by law before the person may bring an action in a court of competent jurisdiction
against ... the [USDA] ... an agency, office, officer, or employee of the [USDA]." 7 U.S.C. §6912(e)(l),
(3). Because plaintiff has not alleged that he pursued his claims against Patterson and Beard-Hinton
through the USDA's administrative process before bring the instant action, the Court has no subject
matter jurisdiction over these claims and they should be dismissed.' Because no allegations are made
against Halifax Co. Agriculture Complex in the complaint, the claims against that defendant must also be
dismissed.
On May 16, 2012, District Court Judge Louise Flanagan warned plaintiff that "[i]n light of the
successive, identical petitions plaintiff has brought before this court, all dismissed for the same reasons, ..
. further suits involving the exact same claims bay be subject to pre-filing injunction." No. 4: 11-CV-184FL [DE 7 at 2]. The Court now renews this warning.

1

The attachments to plaintiffs complaint make multiple references to videos he uploaded to YouTube and
FaceBook in which he suggests that he tried to deal with this matter with the USDA from "Halifax, North Carolina
to Washington, D.C." The Court has previously considered these exhibits and found that the videos offer no further
documentation of any attempt to properly exhaust administrative remedies or intent to do so in the future. The Court
again reminds plaintiff that compliance with a jurisdictional requirement must be pled in a plaintiffs complaint. See
Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674,677 (4th Cir. 2005) (citation omitted). Plaintiffs
attachments also include a copy of what appears to be a letter from defendant, yet the letter likewise does not
demonstrate that plaintiff has exhausted his administrative remedies.

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CONCLUSION

For the reasons stated herein, the motion to proceed informapauperis is ALLOWED, but the
action is DISMISSED

for Jack of subject matter jurisdiction.

SO ORDERED.

This the_.::£_ day of December, 2014.

T RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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