Dalenko v. Stephens et al
Filing
94
ORDER granting 41 Motion to Dismiss for Lack of Jurisdiction; denying 56 Motion to Strike; denying as moot 70 Motion for Extension of Time. The Clerk of Court is DIRECTED to continue management of this case. The parties are reminded to read the order in its entirety for detailed information. Signed by Senior Judge James C. Fox on 1/8/2013. Copy sent to plaintiff via US Mail. (Edwards, S.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5: 12-CV-122-F
CAROL DALENKO,
Plaintiff,
v.
DONALD W. STEPHENS, et al.
Defendants.
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)
ORDER
This matter is before the court on the Motion to Dismiss Complaint, "Joined Complaint,"
Amended Complaint, and Amended Complaint (II) [DE-4l] filed by Defendants Donald W.
Stephens, Shannon R. Joseph, William R. Pittman, Kenneth C. Titus, Sanford L. Steelman, Jr.,
Barbara A. Jackson, Donna S. Stroud, Robert C. Hunter, James A. Wynn, Jr., Sam Ervin, IV,
Robert N. Hunter, Jr., and F. Blare Williams (collectively, "state judicial defendants"). In
response to this motion, the pro se Plaintiff filed a Motion to Strike Insufficient Defenses [DE
56]. Both motions are ripe for ruling.
I. PROCEDURAL AND FACTUAL HISTORY
The parties agree that this latest action I in this court filed by the pro se Plaintiff arises out
Plaintiffs prior actions include Bennett v. Wake County, 5:04-CY·301-H, Bennett v.
Robertson-Ceco Corporation, 5:04-CV-374-FL, Bennett v. Martin, 5:04-CV-8ll-H, Dalenko v.
Aldridge, 5:09-CV-I17-F; Dalenko v. News and Observer Publishing Company, 5:1O-CV-184
H; Dalenko v. Peden General Contractors, Inc., 5:l0-CV-287-F, and Dalenko v. Stephens, 5:10
CV-432-F. She also has filed two actions in the capacity of the personal representative and
executrix of her late father's estate: Estate ofDalenko v. Russell, 5:04-CV -438-H and Estate of
Dalenko, 5:03-CV -550-H. Plaintiff filed a notice of voluntary dismissal in Dalenko v. Stephens,
5: IO-CV-432-F. The remaining actions have been dismissed for lack of subject matter
jurisdiction and/or failure to state a claim.
1
of various North Carolina court proceedings involving the Plaintiff. Because the state
proceedings are explicitly referenced in Plaintiffs pleadings and provide the underlying basis for
her claims, the court briefly summarizes them.
A. Underlying state court proceedings
The first set of state proceedings concern an action filed by Plaintiff in Wake County
Superior Court, 07 CV 5130, asserting claims arising out of a 2002 Arbitration Agreement.
Plaintiff entered into the 2002 Arbitration Agreement during state court litigation, 98 CVS
14297, against her arising out of a 1998 construction contract. See Amended Complaint II [DE
36] P .2, ~~ 49,55; Dalenko v. Peden General Contractors, Inc., 197 N.C. App. 115,117-20,676
S.E.2d 625, 627-29 (2009) (per curiam).2 The court hereinafter will refer to these proceedings as
Peden. The Wake County Superior Court issued rulings adverse to Plaintiff, and specifically
ordered:
Any further claims or actions filed by Plaintiff, Dalenko (formerly Carol Bennett)
arising out of, and/or related to, Peden v. Bennett, 98 CVS 14297, Wake County
Superior Court, including, but not limited to, any order or decree entered in that
The court cites to the Peden opinion and other state appellate opinions because they are
integral to and explicitly relied on in the Amended Complaint (II) and Plaintiff does not
challenge its authenticity. Phillips v. LCI Int'l, Inc., 190 F.3d 609,618 (1999). The court
recognizes that Plaintiff does not agree with certain statements made in the opinion, but there is
no suggestion that the opinion is not authentic. Additionally, when ruling on a motion to dismiss
for failure to state a claim, a court may take judicial notice of matters of public record. Secretary
o/State/or Defence v. Trimble Navigation, Ltd, 484 F.3d 700, 705 (4th Cir. 2007). State court
filings and opinions are matters of public record. Waugh Chapel South, LLC v. United Food &
Commercial Workers Union Local 27,855 F. Supp.2d 476,486 (D.Md. 2012) (citing Giragosian
v. Ryan, 547 F.3d 59,66 (1st Cir. 2008); Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir.
1994)). Additionally, when ruling on a motion to dismiss for lack of subject matter jurisdiction,
"the district court is to regard the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for summary judgment."
See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir.l991).
2
2
case and/or the facts related to the proceedings in that case, are without lawful
basis and are specifically prohibited. If Plaintiff hereafter violates this
prohibition, she may be subject to criminal contempt of court.
Peden, 197 N.C. App. at 119,676 S.E.2d at 629 ("The 2007 Gatekeeper Order"). After a series
of rulings adverse to Plaintiff, she filed an appeal to the North Carolina Court of Appeals, which
affirmed the various rulings issued by the Wake County Superior Court. ld. at 129,676 S.E.2d at
634. In the course of its opinion, the North Carolina Court of Appeals made reference to a 2001
Gatekeeper Order entered against Plaintiff. ld. at 118 n.l, 676 S.E.2d at 628 (citing Dalenko v.
Collier, 191 N.C. App. 713,664 S.E.2d 425, appeal dismissed, 362 N.C. 680,670 S.E.2d 563
(2008». The 2001 Gatekeeper Order provided:
So long as [Dalenko] does not qualifY as an indigent pursuant to N.C.G.S. 1-110,
she shall not file, or attempt to file, any documents with the Office of the Clerk of
Superior Court of Wake County unless such document contains a certification by
an attorney licensed under the laws of the State of North Carolina to practice law
in North Carolina that in the opinion of that attorney the document complies with
Rule 11 of the Rules of Civil Procedure. The certification shall also contain a
recitation that the attorney has read and is aware of the requirements of this Order.
A failure to comply with the certification requirement as set forth herein shall
result in the dismissal or striking of the pleading or pleadings and the denial of the
motion or motions.
Dalenko v. Monroe, 197 N.C. App. 231, 676 S.E.2d 670,2009 WL 138333 (N.C. Ct. App. May
19, 2009) (unpublished).
The second set of state proceedings concern an action in which Plaintiff appeared as
executrix of her late father's estate in Wake County Superior Court, 07 CVS 1640. Amended
Complaint n [DE-47] p.3,
~
75. Again, after rulings adverse to her, Plaintiff filed an appeal to
the North Carolina Court of Appeals, which affirmed the lower court's orders. See Dalenko v.
Monroe, 197 N.C. App. 231,676 S.E.2d 670, 2009 WL 1383333 (May 19,2009) (unpublished).
The court will refer to this set of proceedings as Monroe.
3
The third set of state proceedings concern a libel action Plaintiff filed in Wake County
Superior Court, 06 CVS 14229, concerning a 2004 article published in the News & Observer.
Amended Complaint II [DE-47] p. 2",92-105. Again, after adverse rulings, Plaintiff filed an
appeal which was unsuccessful. Bennett v. News and Observer Publishing Company, 680 S.E.2d
904,2009 WL 2138669 (N.C. Ct. App. July 7, 2009). The court will refer to these proceedings
asN&o.
B. Selected previous related federal litigation
Plaintiff filed Dalenko v. Peden General Contractors, Inc., et al., 5:1O-CV-287-F
(hereinafter "Dalenko 1'), on July 20, 2010, alleging, inter alia, that Superior Court Judges
Donald W. Stephens and Shannon R. Joseph and North Carolina Court of Appeals Judges
Sanford L.Steelman, Jr., Barbara A. Jackson and Donna S. Stroud violated her due process rights
under the Fourteenth Amendment and her right to contract under Article I of the United States
Constitution through their actions and inactions in the course of the Peden litigation and appeal.
Dalenko filed a Notice of Voluntary Dismissal of her claims on March 7, 2011. See Amended
Complaint (II) [DE-47] p.l.
Plaintiff filed Dalenko v. Stephens, et aI., 5:10-CV-432-H (hereinafter Stephens I) on
October 8, 2010, alleging, inter alia, that Superior Court Judges Stephens, William R. Pittman,
and Kenneth C. Titus, and North Carolina Court of Appeals Judges Jackson, James A. Wynn, Jr.,
and Robert N. Hunter, Jr.:
acted under color of law without jurisdiction, to deprive her of property rights ...
without "due process" in violation of her Fourteenth Amendment rights in her
state civil libel suit against N&O and on appeal, and barred her access to the
courts and imprisoned her to deter her from petitioning for redress of grievances
according to her lawful rights in violation of her First, Fifth, Seventh, and
Fourteenth Amendment rights, and deprived plaintiff of her First Amendment
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right to vindicate her reputation ... and that defendant judges should be enjoined
in their official capacities from further injury to the plaintiff in her rights and her
person, and are liable to her in their individual capacities when they lacked
subject-matter jurisdiction in their official capacities ....
Stephens I, 5:1O-CV-432-H, Compl. [DE-I] p. 17. Plaintiffs claims in Stephens I arose in the
course of her N&O litigation in state court. Senior United States District Judge Malcolm J.
Howard dismissed Plaintiff s complaint in an order filed on July 7, 20 II for lack ofjurisdiction.
Stephens 1., 5:1O-CV-432-H, July 7,2011, Order [DE-60].
C. The current action
Plaintiff initiated the instant action by filing a Complaint [D E-l] on March 7, 2012,
alleging that Defendants Stephens, Joseph, Steelman, Jackson and Stroud, all judicial officers,
acted under color of state law to deprive her of property, civil liberties, and freedom without prior
notice or meaningful opportunity to be heard in violation of her due process rights under the
Fourteenth Amendment throughout the course of the Peden !litigation. Compl. [DE-I]. She
alleged that she is entitled to declaratory relief "to protected her federally guaranteed rights in
state superior court" and sought damages against Defendants individually. Id.
On May 22,2012, Plaintiff filed a "Joined Complaint" [DE-9] alleging claims against
North Carolina Court of Appeals Judges Robert C. Hunter, Wynn, and Sam Ervin, IV.
Specifically, Plaintiff alleged Judges Hunter, Wynn, and Ervin deprived her rights in the course
of her appeal in the Monroe litigation, and she asserted she was entitled to declaratory relief
against these defendant "to protect her rights on appeal in state court" and she sought damages
against each defendant.
In response to the filing of the Joined Complaint [DE-9], the court issued an order on
May 25,2012, observing that Dalenko may file an amended complaint once as matter of course
5
pursuant to Federal Rule of Civil Procedure 15(a), and she appears to have attempted to do this
through the filing of the "Joined Complaint." May 25,2012 Order [DE-l3]. The court observed
that "[r]ather than filing a completely separate document with new allegations and newly-named
defendants, however, Dalenko should have just filed one amended complaint which contains her
allegations and claims against all the defendants." Id Accordingly, the court ordered Plaintiff to
file within 21 days, "one amended complaint which lists all of the defendants in the caption and
contains all of her allegations and claims." Id Plaintiff apparently took this Order to be an
invitation to file, without leave, a complaint which not only named the defendants in the Original
Complaint and Joined Complaint, but also included additional defendants and claims, including
those ostensibly asserted in the Stephens I action before Judge Howard. See Amended Complaint
[DE-25]. Additionally, Plaintiff included allegations that Defendant F. Blare Williams, Assistant
Clerk for the Wake County Superior Court, refused to docket a new action for libel against new
parties relating to her prior civil action for libel in Wake County until Plaintiff complied with the
2001 Gatekeeper Order issued by the Wake County Superior Court. She also alleged that Wake
County Sheriff Donald Harrison and "unnamed" prison officers and guards violated her rights
while she was confined in the Wake County Jail from November 2 to November 9, 2009. After
receiving leave of court, Plaintiff filed another amended complaint, denominated "Amended
Complaint (II)" [DE-36], making substantially similar allegations.
Pertinent to the motions presently before the court, in the 25-page verified Amended
Complaint II Plaintiff alleges the state judicial defendants "have numerously and repeatedly
deprived her of her federally guaranteed rights under the U.S. Constitution in her state civil
matters and appeals, for which they are liable to her in their official capacities" and seeks
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declaratory relief "to establish her rights to protect her property, her civil liberties, and her
freedom according to her rights guaranteed under the First, Fourth-Eighth, and Fourteenth
Amendments" to the United States Constitution. Amended Complaint (II) [DE-57] p. 23.
Additionally, Plaintiff seeks monetary relief against these state judicial defendants in their
individual capacities.
The state judicial defendants filed a Motion to Dismiss [DE-41J on July 26, 2012, seeking
to dismiss the claims against them pursuant to Rules 12(b)(1), (2), (5), and (6) of the Federal
Rules of Civil Procedure on the grounds that (1) this court lacks jurisdiction over the subject
matter of the Plaintiffs claims; (2) the plaintiff failed to properly effect service of process on the
state judicial defendants; (3) the state and appellate court judges named as defendants are entitled
to absolute judicial immunity from the plaintiffs claims, and (4) the plaintiffs claims for
monetary relief are barred by the Eleventh Amendment to the United States Constitution. After
receiving an extension of time to file a response to the Motion to Dismiss, Plaintiff instead filed a
Motion to Strike Insufficient Defenses [DE-56] pursuant to Rule 12(f) of the Federal Rules of
Civil Procedure. She then sought, and was allowed by the court, three additional extensions of
time to file a response to the Motion to Dismiss, which she filed on October 15,2012. The state
judicial defendants have filed a response to the Motion to Strike, to which Plaintiff has filed a
reply, and have chosen not to file a reply in support of their Motion to Dismiss. These motions
are therefore ripe for ruling.
II. ANALYSIS
A. Motion to Strike
Plaintiff moves to strike the state judicial Defendants' defenses pursuant to Rule 12(f),
7
arguing that the "Motion to Dismiss with a Memorandum filed on behalf ofjudicial defendants is
frothed with gross misrepresentation of fact without evidentiary support to invoke Rule 12(b)
defenses, which do not apply, contrived presumptions oflaw based on twisted facts and
oversights, and irrelevant references to matters outside the pleadings." Mem. in Support of Mot.
to Strike [DE-57] at p. 3. In other words, she asserts the defenses presented in the state judicial
Defendants' motion to dismiss are insufficient, and she seeks to strike them from the Motion to
Dismiss.
Rule 12(t) allows a district court to "strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent or scandalous matter." FED. R. CIV. P. 12(t). Motions to
strike "are generally viewed with disfavor 'because striking a portion of a pleading is a drastic
remedy and because it is often sought by the movant simply as a dilatory tactic.' " Waste Mgmt.
Holdings, Inc. v. Gilmore, 252 F .3d 316, 34 7 (4th Cir. 2001) (quoting A. CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1380 (2d ed. 1990)).
Plaintiff's Motion to Strike [DE-56] is DENIED. As the plain text of Rule 12(t)
indicates, the rule allows a district court "to strike from a pleading" an insufficient defense. FED.
R. Crv. P. 12(t) (emphasis added). Rule 7(a) defines a "pleading" as (1) a complaint, (2) an
answer, (3) a reply to a counterclaim, (4) an answer to a cross-claim, (5) a third-party complaint,
(6) a third-party answer, and (7) if the court orders one, a reply to an answer. FED. R. CIV. P. 7(a).
The state judicial Defendants' Motion to Dismiss and memorandum in support thereof is not a
"pleading" within the meaning ofthe Federal Rules of Civil Procedure, and therefore Rule 12(t)
is inapplicable. See Kalos v. Law Offices ofEugene A. Seidel, P.A., No. 1:09cv833(JCC), 2009
WL 3583606 at *5 (E.D.Va. Oct. 26, 2009) (denying plaintiffs' motion to strike defendants'
8
motion to dismiss because "neither a motion to dismiss nor a memorandum in support thereof
constitutes a pleading within the meaning of Rule 12(f)"); Jones v. Dept. ofNavy, No. 4:07-CV
165-F, 2008 WL 1967497 at *2 (E.D.N.C. May 5, 2008) (denying the defendant's motion to
strike various motions filed by the plaintiff because motions "are not included in the definition of
'pleadings' under the Federal Rules of Civil Procedure").
B. Motion to Dismiss
1. Standards of Review
Subject matter jurisdiction is both a Constitutional and statutory requirement which
restricts federal judicial power to a limited set of cases and controversies. Thus, "no action of the
parties can confer subject matter jurisdiction on a federal court." Ins. Corp. ofIr. V Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982). The party seeking federal jurisdiction has the
burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.l991). When a defendant
challenges subject matter jurisdiction, "the district court is to regard the pleadings as mere
evidence on the issue, and may consider evidence outside the pleadings without converting the
proceeding to one for summary judgment." Id. The district court should grant the Rule 12(b)(I)
motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter oflaw." Id. See a/so, Evans v. B.F Perkins Co., 166 F.3d 642,
647 (4th Cir.l999).
A motion to dismiss for insufficient service of process is permitted by Rule 12(b)(5) of
the Federal Rules of Civil Procedure. Once service has been contested, the plaintiff bears the
burden of establishing the validity of service pursuant to Rule 4. O'Meara v. Waters, 464 F.
9
Supp. 2d 474,476 (D. Md. 2006). Generally, when service of process gives the defendant actual
notice of the pending action, the courts may construe Rule 4 liberally to effectuate service and
uphold the jurisdiction of the court. !d. (citing Karlsson v. Rabinowitz, 318 F .2d 666, 668 (4th
Cir. 1963) and Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087,1089 (4th Cir.
1984)). When there is actual notice, failure to strictly comply with Rule 4 may not invalidate the
service of process; however, plain requirements for the means of effecting service of process
may not be ignored. !d. (citing Armco, 733 F.2d at 1089).
Under Federal Rule of Civil Procedure 12(b)(2), the party asserting personal jurisdiction
has the burden to prove the existence of a ground for jurisdiction by a preponderance of the
evidence. Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290,294 (4th Cir.
2005). Where, as here, a court addresses the question ofjurisdiction based only on the pleadings,
the allegations in the complaint, the motion papers, and any supporting legal memoranda,
without an evidentiary hearing, the burden is on the plaintiff to make a prima facie showing of a
sufficient basis for jurisdiction. Id. In determining whether the plaintiff has proven a prima facie
case of personal jurisdiction, the court "must draw all reasonable inferences arising from the
proof, and resolve all factual disputes, in the plaintiffs favor." !d.
The purpose of a motion to dismiss under Rule 12(b)(6), meanwhile, is to test the legal
sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action.
Edwards v. City ofGoldsboro, 178 F .3d 231, 243-44 (4th Cir. 1999). In considering a motion to
dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any
fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S.
89,94 (2007). However, the" '[fJactual allegations must be enough to raise a right to relief
10
above the speculative level' and have 'enough facts to state a claim to relief that is plausible on
its face.' " Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007». "[A] plaintiffs obligation to
provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555
(citations omitted). Moreover, a court "need not accept the legal conclusions drawn from the
facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments."
Eastern Shore Mkts., Inc. v. JD. Assocs. Ltd. Pshp., 213 F.3d 175, 180 (4th Cir. 2000). A
district court may allow a motion to dismiss based on a defendant's affirmative defense "if all
facts necessary to the affirmative defense 'clearly appear [] on the face of the complaint.' "
Goodman v. Praxair, 494 F.3d 458, 463 (4th Cir. 2007) (quoting Richmond, Fredericksburg &
Potomac R.R. v. Forst, 4 F.3d 244,250 (4th Cir. 1993». See also Peal v. North Carolina Farm
Bureau Mut. Ins. Co., Inc., 221 F. Supp. 2d 508,512 (E.n.N.C. 2008) (explaining that a motion
to dismiss will be allowed "when the face of the complaint reveals the existence of a meritorious
affirmative defense, such as federal preemption").
2. Preclusion
At the outset, the court observes that some of the claims Plaintiff asserts in this latest
action against state judicial officials in federal court are barred by the principles of issue
preclusion, or collateral estoppel. In "special circumstances," a court may sua sponte raise the
issues of preclusion. Arizona v. California, 530 U.S. 392,412 (2000). Preclusion includes both
issue preclusion, or collateral estoppel, and claim preclusion, or res judicata. Under the latter, a
prior judgment on the merits between the same parties precludes litigation of matters that were or
11
might have been adjudicated in the earlier suit. In re Varat Enterprises, Inc., 81 F.3d 1310,
1314-15 (4th Cir. 1996). The fonner, collateral estoppel, "operates to bar subsequent litigation
of those legal and factual issues common to both actions that were 'actually and necessarily
detennined by a court of competent jurisdiction in the first litigation.' " Id. at 1315 (quoting
Montana v. United States, 440 U.S. 147, 153 (1979». Such "special circumstances" justifying
the sua sponte application of preclusion principles exist where, for example, the court is "on
notice that it has previously decided the issue presented." Arizona, 530 U.S. at 412.
"This
result is fully consistent with the policies underlying res judicata: it is not based solely on the
defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the
avoidance of unnecessary judicial waste." Id. See also Eriline Co. S.A. v. Johnson, 440 F.3d
648, 655 (4th Cir. 2006) (recognizing that "certain affinnative defenses," like res judicata,
"implicate important institutional interests of the court, and may sometimes be properly raised
and considered sua sponte"); Doe v. Pfrommer, 148 F.3d 73,80 (2d Cir. 1998) (detennining that
district court's raising of the issue of collateral estoppel on its own did not require reversal
because of the "strong public policy in economizing the use ofjudicial resources of avoiding
relitigation"); Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996) ("[W]e have recognized that
courts, in the interest ofjudicial economy, may raise the issue of preclusion sua sponte even
when a party fails to do so.").
"Collateral estoppel or issue preclusion applies to jurisdictional issues, as well as to other
issues." Jones v. Law Firm o/Hill and Ponton, 141 F.Supp.2d 1349, 1356 (M.D. Fla. 2001)
(citing North Georgia Electric Membership Corp. v. City o/Calhoun, 989 F.2d 429,432-33
(11th Cir.1993); Baris v. Sulpicio Lines, Inc., 74 F.3d 567, 571 (5th Cir.1996); Oglala Sioux
12
Tribe ofthe Pine Ridge Indian Reservation v. Homestake Mining Co., 722 F.2d 1407 (8th
Cir.1983». Accordingly, "[c ]ollateral estoppel precludes a plaintiff from relitigating the same
jurisdictional question after the first suit was dismissed for lack of federal jurisdiction-even
though dismissal did not adjudicate the merits of the case." Id. (citing North Georgia Electric
Membership Corp., 989 F.2d at 432-33; Baris, 74 F.3d at 571). See also Carr v. Tillery, 591
F.3d 909, 917 (7th Cir. 2010) ("[A] jurisdictional ruling on an issue that has been fully and fairly
adjudicated is barred from subsequent challenge by the doctrine of collateral estoppel."); Kasap
v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C. Cir. 1999) ("[U]nder
principles of issue preclusion, even a case dismissed without prejudice has preclusive effect on
the jurisdictional issue litigated."); Goldsmith v. Mayor & City Council ofBaltimore, 987 F.2d
1064, 1069 (4th Cir. 1993) ("[A] jurisdictional dismissal that does not constitute ajudgment on
the merits so as to completely bar further transactionally-related claims still operates to bar
relitigation of issues actually decided by that former judgment.").
Under federal law, collateral estoppel applies where the five following criteria are met:
(1) The "issue sought to be precluded is identical to the one previously litigated; "
(2) The "issue was actually determined in the prior proceeding;"
(3) Determination of the issue was "a critical and necessary part of the decision in
the prior proceeding;"
(4) The "prior judgment is final and valid" and
(5) The "party against whom collateral estoppel is asserted had a full and fair
opportunity to litigate the issue in the previous forum."
Collins v. Pond Creek Mining Co., 468 F.3d 213, 217 (4th Cir. 2005) (quoting Sedlack v.
Braswell Servs. Group, Inc., 134 F.3d 219,224 (4th Cir. 1998». This court finds that these five
requirements are met in this case with regard to this court's previous decision in Stephens I and
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Plaintiffs claims against Defendants Stephens, Pittman, Titus, Jackson, Wynn, and Robert N.
Hunter, Jr., which arise out of their actions in the course of the N&O state court proceedings.
First, in Stephens L Judge Howard dismissed Plaintiffs claims asserted in that action
against Defendants Stephens, Pittman, Titus, Jackson, Wynn, and Robert N. Hunter, Jr., on the
basis of the Rooker-Feldman3 doctrine. Specifically, in Stevens I, Judge Howard observed that
"[i]n the light most favorable to the plaintiff, she has commenced the instant federal action
alleging fraud, deprivation of property rights in the sum of $100,758.40, barred access to the
courts and imprisonment to deter from making a petition for redress, based on actions taken on
the part of various judicial officials and orders entered in the above referenced state civil action."
July 11,2011, Order, Stephens L No.5: 1O-cv-432-H. Judge Howard dismissed Plaintiff's claims
against the judicial defendants for lack ofjurisdiction because
Plaintiffs complaint purports to have this court review the actions and/or
judgment of the state court, a role which is not within the jurisdiction of the
federal district court. The appellate review of state-court decisions lies only
within the state appellate system and then in the United States Supreme Court, not
with the federal district court. . .. Plaintiff's complaint fails to raise any claims
independent of her dissatisfaction with the state-court judgment and is, therefore,
barred by the Rooker-Feldman doctrine....
The court has also reviewed plaintiff's purported amended complaint. The
court need not decide whether plaintiffs amended complaint was timely filed
within the time periods specified in Federal Rule of Civil Procedure 15(a) because
the court finds the amendment to be futile. Even assuming that the complaint was
timely, the Rooker-Feldman doctrine still bars this matter.
Id at pp. 4-6 (dismissing Plaintiffs claims for lack ofjurisdiction) (internal citations omitted).
Notably, in Stephens I Plaintiff alleged that Defendants Stephens, Pittman, Titus, Jackson,
Wynn, and Robert N. Hunter, Jr., all deprived her of due process rights by their actions in the
3
The Rooker-Feldman doctrine is discussed in more detail below.
14
N&O litigation and in so doing, acted without subject matter jurisdiction or authority.
See Amended Complaint, Stephens I, No. 5:1O-cv-432-H at,-r,-r 41-48,54-57,60-66,70-76,92
99, 114-127, 153, "Third Claim," "Fourth Claim," "Fifth Claim" and "Sixth Claim." The claims
asserted in Stephens I mirror in all relevant respects the claims Plaintiff alleges in the instant
action against Defendants Stephens, Pittman, Titus, Jackson, Wynn, and Robert N. Hunter, Jr.
arising out of the N&O litigation. See Amended Complaint II [DE-36] at pp. 2-5, ,-r,-r 39-46, 92
105, 119, 120, 121, 124, First Claim, Second Claim. Accordingly, in Stephens I, Judge Howard
resolved precisely the same question ofjurisdiction that is at issue here. The Rooker-Feldman
issue was actually determined and was the primary basis for the dismissal of Plaintiffs claims
arising out of the N&O state court litigation. The court therefore concludes the first three
requirements for collateral estoppel have been met.
Stephens I is also a final and valid judgment, which satisfies the fourth requirement for
collateral estoppel. Although Plaintiff in the first page of the Amended Complaint II suggests
that Rule 41 (b)4 allows her to refile the Stephens I claims, Rule 41 (b) does nothing to preclude
the application of collateral estoppel. 18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE § 4436 ("Although a dismissal for lack ofjurisdiction does
not bar a second action as a matter of claim preclusion, it does preclude relitigation of the issues
determined in ruling on the jurisdiction question. If it seems necessary to rebut the sophistic
argument that preclusion cannot arise from the judgment of a court that admits to a lack of
jurisdiction, comfort may be found in the notion that a court has jurisdiction to determine its own
Rule 41 (b) provides that a dismissal order for lack ofjurisdiction is not an adjudication
on the merits.
4
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jurisdiction. The provision in Rule 41 (b) that dismissal for lack ofjurisdiction does not operate
as an adjudication on the merits does nothing to change this result."). Finally, Plaintiff had a full
and fair opportunity to litigate the issue of subject matter jurisdiction in Stephens 1, which
satisfies the fifth requirement for collateral estoppel. She made substantially similar allegations
in her amended complaint in that action, which Judge Howard reviewed and found futile.
Accordingly, the court finds that Plaintiff is precluding from relitigating her claims against
Defendants Stephens, Pittman, Titus, Jackson, Wynn, and Robert N. Hunter, Jr. which arose out
of their actions in the course of the N&O litigation.
2. Rooker-Feldman
In support of their Motion to Dismiss, the state judicial Defendants also contend that
Plaintiff's claims against them must be dismissed for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine. Specifically, Defendants argue that Plaintiff's constitutional claims
against them in the instant action are "essentially seeking appellate review of the orders and
decisions entered by the North Carolina trial and appellate courts to determine if they were
erroneously entered." Mem. in Support of Mot. to Dismiss [DE-42] p. 8. To the extent that
Plaintiff is seeking declaratory relief against the state judicial Defendants, the court agrees.
In Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the United States Supreme Court
held that a litigant who lost in state court could not seek review ofthe state court judgment in a
federal district court. 1d. at 415-16. In District o/Columbia Court 0/Appeals v. Feldman, 460
U.S. 462 (1983), the Court reaffirmed the basic rule laid down in Rooker and further concluded
that federal district courts do not have subject matter jurisdiction over claims the state court did
not directly decide, but that are nevertheless "inextricably intertwined" with state court decision.
16
Id at 486-87; see also Plyer v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)(explaining the
"inextricably intertwined" language from Feldman). The Rooker and Feldman courts both
reasoned that federal law lodges appellate jurisdiction over state court judgments exclusively in
the United States Supreme Court. Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280,283
(2005)(explaining that in Rooker and Feldman the Court "emphasized that appellate jurisdiction
to reverse or modifY a state-court judgment is lodged, initially by § 25 of the Judiciary Act of
1789, 1 Stat. 85, and now by 28 U.S.C. § 1257, exclusively this Court").
In Exxon, the Supreme Court significantly narrowed the scope of the Rooker-Feldman
doctrine. Prior to Exxon, lower federal courts had interpreted Rooker-Feldman to mean that the
loser in state court "was barred from bringing suit in federal court alleging the same claim or a
claim that could have been brought in the state proceedings." Davani v. Virginia Dept. of
Transp., 434 F.3d 712, 713 (2006). In Exxon, the Supreme Court confined the Rooker-Feldman
doctrine to "cases brought by state court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and inviting district court
review and rejection of those judgments." Exxon, 544 U.S. at 284.
Accordingly, post-Exxon, the Fourth Circuit Court of Appeals has explained:
Whereas in [cases pre-Exxon] we examined whether the state-court loser who files
suit in federal court is attempting to litigate claims he either litigated or could
have litigated before the state court, Exxon requires us to examine whether the
state-court loser who files suit in federal district court seeks redress for an injury
caused by the state-court decision itself. If he is not challenging the state-court
decision, the Rooker-Feldman doctrine does not apply. If, on the other hand, he is
challenging the state-court decision, the Rooker-Feldman doctrine applies. It is
important to note that the Rooker-Feldman doctrine applies in this second
situation even if the state-court loser did not argue to the state court the basis of
recovery that he asserts in the federal district court. A claim seeking redress for
an injury caused by the state-court decision itself-even if the basis of the claim
17
was not asserted to the state court-asks the federal court to conduct a review of
the state-court decision.
Davani, 434 F.3d at 718-19 (footnote and citations omitted). Thus, the phrase "inextricably
intertwined" "does not create an additional legal test for determining when claims challenging a
state-court decision are barred, but merely states a conclusion: if the state-court loser seeks
redress in federal district court for the injury caused by the state-court decision, his federal claim
is, by definition, 'inextricably intertwined' with the state-court decision, and is therefore outside
the jurisdiction of the federal district court." Jd at 719.
Consequently, the task for this court is to determine whether the challenged claims satisfY
the four essential elements of the Rooker-Feldman doctrine, as explained by the Court in Exxon.
Namely, are the claims (1) brought by a state-court loser (2) complaining of injuries caused by a
state-court judgment (3) rendered before the instant proceedings commenced and (4) inviting this
court's review and rejection of the state court judgment? To the extent that Plaintiff seeks
declaratory relief against the state judicial defendants, each of these elements is met.
In the Amended Complaint (II), Plaintiff alleges that the various state judicial Defendants
took actions and issued rulings without affording Plaintiff notice or an opportunity to be heard or
without a fair hearing. See Amended Complaint (II) [DE-36] pp. 3-5. She seeks declaratory
relief "to establish her rights to protect her property, her civil liberties, and her freedom according
to her rights guaranteed under the First, Fourth-Eighth, and Fourteenth Amendments, U.S.
Const." Jd. at p. 23. She asks the court to issue "such appropriate Declaratory Relief that will
protect [her] rights [from] further injury by these Defendants." Jd. The court concludes that this
request for declaratory relief can only be construed as a request for improper collateral review of
the various state court decisions.
18
First, it cannot be disputed that Plaintiffs claim for declaratory relief satisfies the first
and third elements of the Rooker-Feldman doctrine. Although Plaintiff contends that she is not a
"state-court loser" because she prevailed in some issues in state court,s the allegations in the
Amended Complaint (II) make clear that her current claims stem from actions which occurred in
the course of the various state court proceedings and resulted in rulings which were unfavorable
in some manner to her. In the context of those rulings, Plaintiff is a "state-court loser."
Moreover, it is undisputed that all ofthese rulings were rendered prior to the commencement of
the instant case.
Second, Plaintiff satisfies the second element of the Rooker-Feldman doctrine: she is
complaining of injuries from a state court judgment. The court recognizes Plaintiff argues that
she is not complaining of the various state court decisions issued by the state judicial Defendants,
but rather "the fact that they deprived her of prior notice or an opportunity to be heard and other
rights prior to their entry." Mem. in Opp. to Mot. to Dismiss [DE-67] p. 5. She contends that
regardless of whether the state judicial Defendants were correct in their rulings, she already had
been injured in her rights. ld. p. 6. If Plaintiff is seeking declaratory relief stating that the
various defendants violated her rights in the past, however, such declaratory relief is not
available. See Johnson v. McCuskey, 72 Fed. Appx. 475,477 (7th Cir. 2003) (finding that a
plaintiff who asked district court to declare that judges acted improperly in various way when
deciding a motion for a change of venue was "not seeking declaratory relief in the true legal
Specifically, Plaintiff contends that she prevailed in the arbitration proceedings
underlying the Peden state court action and she was successful on some issues on a motion for
summary judgment in the N&O state court action. Mem. in Opp. to Mot. to Dismiss [DE-67] p.
5
13.
19
sense" because declaratory judgments are not meant to simply to proclaim that one party is liable
to another"); Andrews v. Paxson, Civil Action No. 3:11-CV-518, 2012 WL 526290, at *3 (E.D.
Va. Feb. 16,2012) (explaining that plaintiff was not entitled to declaratory relief that a state court
judge violated his constitutional rights through her judicial conduct because plaintiff was not
seeking to define the legal rights and obligations of the parties).
Based on the overall allegations in the Amended Complaint (II), however, the court
discerns that Plaintiff seeks, inter alia, a declaration that certain Gatekeeping Orders are not
applicable to her and that the state court must rule on certain matters she contends are still
outstanding. See Amended Complaint (II) p. 2 (alleging that two motions in the Peden action
have been pending unheard since 2007 and 2008 and that Defendant Stephens "continues to
obstruct Dalenko's access to the courts to assert her property rights ... pursuant to his filing
prohibitions"); p. 3 (alleging that "issues of fact remain untried" in the N&O action); pp. 3-4
(alleging that the appellate judge Defendants ruled that certain Gatekeeping orders applied to her
filings);
~
81 (alleging, inter alia, the appellate judge Defendants in the Monroe action set a
precedent to deprive her of her fundamental due process rights to access to the courts);
~
96
(alleging, inter alia, that appellate judge Defendants in the N&O action deprived her of due
process rights by "striking" motions for failure to comply with a Gatekeeping Order); ~ 111
(alleging that Defendant Williams violated Plaintiffs rights by refusing to docket Plaintiffs
latest libel case until Plaintiff complies with the Gatekeeping Order). This inevitably leads to the
conclusion that to the extent Plaintiff seeks declaratory relief, she is claiming injury from the
various decisions of the superior court and North Carolina Court of Appeals-namely, the
decisions that certain Gatekeeping Orders apply to her in all matters. Moreover, in so doing,
20
Plaintiff undoubtedly seeks review and rejection of the various decisions by the North Carolina
state courts determining that the Gatekeeping Orders are applicable. See Bolden v. City of
Topeka, Ks., 441 F.3d 1129, 1143 (lOth Cir. 2006) ("Appellate review-the type ofjudicial action
barred by Rooker-Feldman--consists of a review of the proceedings already conducted by the
'lower' tribunal to determine whether it reached its result in accordance with the law."). This the
court is prohibited from doing, and accordingly to the extent that Plaintiff seeks declaratory
relief, such relief is either unavailable to her or the court is without jurisdiction to consider her
claims.6 Plaintiffs first claim for relief is therefore DISMISSED as to the state judicial
defendants. 7
This also provides an independent reason, other than collateral estoppel, for this court's
determination that it lacks jurisdiction over Plaintiffs claims for declaratory relief against
Defendants Stephens, Pittman, Titus, Jackson, Wynn, and Robert N. Hunter, Jr., arising out of
the N&O litigation.
6
In so ruling, the court recognizes that Plaintiff contends the "reasonable opportunity"
exception to Rooker-Feldman, previously applied by the Fourth Circuit (and other courts) pre
Exxon, saves her claims. Namely, the Fourth Circuit previously explained that the Rooker
Feldman doctrine does not apply where a plaintiff did not have a reasonable opportunity to raise
her federal claim in state proceedings. Brown v. Breckenridge, 211 F.3d 194,200-01 (4th Cir.
2000). This was in line with the "expansive" reading the Fourth Circuit accorded to the Rooker
Feldman doctrine pre-Exxon, one that was the equivalent to a ''jurisdictional doctrine of res
judicata." See Davani, 434 F.3d at 717-19 (recognizing that pre-Exxon, the Fourth Circuit
examined "whether the state-court loser who files suit in federal court is attempting to litigate
claims he either litigated or could have litigated before the state court" but that is no longer the
test). Now that the Supreme Court has clarified the reach of Rooker-Feldman, this court agrees
with the observation of the Sixth Circuit Court of Appeals that the "reasonable opportunity"
exception is no longer applicable. See Abbott v. Michigan, 474 F.3d 324, 330,330 n. 6 (6th Cir.
2007) (stating that "[w]e believe that the Supreme Court's recent decisions do not support the
plaintiffs' asserted 'reasonable opportunity' exception to the Rooker-Feldman doctrine" and that
"[i]t appears to us that many of the opinions in which courts purported to apply an exception to
the Rooker-Feldman doctrine based on the lack of a reasonable opportunity to litigate a claim in
state court would have reached the same result had those courts instead applied the doctrine in
[Exxon's] narrow fashion.").
7
21
3. Judicial Immunity
Plaintiff also alleges a claim for damages against the state judicial Defendants in their
individual capacities. The court recognizes that to the extent that Plaintiff seeks compensatory
damages for the alleged deprivations of due process occurring "before" the issuance of the
various state decisions, some courts would conclude that her claim falls outside the realm of the
Rooker-Feldman doctrine. See Great Western Mining & Mineral Co. v. Fox Rothschild, LLP,
615 F.3d 159, 171 (3d Cir. 2010) (concluding that a plaintiffs claim that opposing party in
previous state court litigation, attorneys and state-court judges engaged in an extensive
conspiracy which forced plaintiff to litigate in a "rigged system" in violation of plaintiffs
constitutional rights was not barred by Rooker-Feldman). This court is not of the opinion that
Plaintiffs allegations against the various state judicial Defendants implicate the violation of
some independent right separate from the state court judgments, however, and thus believes that
Plaintiffs claims for damages against the various state judicial Defendants are also barred by
Rooker-Feldman. Even if this court assumes that Plaintiffs claims for monetary damages
against the state judicial Defendants are not barred by the Rooker-Feldman doctrine, however,
the claims are still barred by absolute judicial immunity.
It is well-established that judges, in exercising the authority vested in them, are absolutely
immune from civil lawsuits for money damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam) ("A long line of this Court's precedents acknowledges that, generally, a judge is immune
from a suit for money damages."); Chu v. Griffith, 771 F.2d 79,81 (4th Cir. 1985). Judicial
immunity applies to judicial action taken in error, done maliciously, or in excess of authority.
Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). Essentially, ajudge is entitled to absolute
22
immunity if the judge acted in his judicial capacity and had jurisdiction over the subject matter.
King v. Myers, 973 F.2d 354, 356-57 (4th Cir. 1992). Accordingly, a plaintiff alleging claim for
money damages against a judge can overcome absolute judicial immunity only by showing (I)
the judge's actions were taken outside of the judge's judicial capacity or (2) the judge acted in the
complete absence ofjurisdiction. Id
With regard to the first inquiry-whether the challenged conduct is a 'judicial act"-the
court must consider "whether the function is one normally performed by a judge, and whether the
parties dealt with the judge in his or her judicial capacity." Id at 357 (citing Stump, 435 U.S. at
362). Here, Plaintiff does not dispute that Defendants Stephens,s Joseph, Pittman, Titus,
Steelman, Jackson, Stroud, Robert C. Hunter, Wynn, Ervin, and Robert N. Hunter, Jr., all were
acting in a judicial capacity while presiding over her various state-court lawsuits or, in Stephens'
case, assigned judges to her cases. See Martinez v. Winner, 771 F.2d 424, 434 (10th Cir. 1985)
(determining that a chief judge's act of assigning cases is a judicial act).
With regard to the second inquiry, Plaintiff vehemently argues that these state court
judges acted in the complete absence ofjurisdiction. A distinction must be drawn, however,
"between acts that are performed in 'excess ofjurisdiction' and those performed in the 'clear
absence of all jurisdiction over the subject matter' with the former type of act accorded
immunity." King, 973 F.2d at 356-57 (citing Stump, 435 U.S. at 356 n.6). Thus, the court must
To the extent that Plaintiffs allegations against Judge Stephens could be construed as
including non-judicial acts, the court fmds that the conclusory and speculative allegations do not
state a plausible claim for relief. See Amended Complaint (II) ~~ 65-66 (alleging upon
information and belief that Stephens instructed another judge to rule against Plaintiff); see also
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009) (explaining that a court may reject "bald"
"conclusory" allegations).
8
23
examine" 'whether at the time [the judge] took the challenged action he had jurisdiction over the
subject matter before him,' and in answering that question, 'the scope of the judge's jurisdiction
must be construed broadly ... .' " Id. at 357 (quoting Stump, 435 U.S. at 356). Moreover, "it is
immaterial that his challenged judicial act may have been unauthorized by the laws which govern
his conduct." Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). If a judge "exceeds his authority,
his action is subject to correction on appeal or other authorized review, but it does not expose
him to a claim for damages in a private action or put him to the trouble and expense of defending
such an action." Id. Accordingly, "[a] judge will not be deprived of immunity because the action
he took was in error, was done maliciously, or was in excess of his authority" or subject to "grave
procedural errors." Stump, 435 U.S. at 356-58. Thus, for example, a criminal court judge would
be immune from liability for convicting a defendant of a nonexistent crime, an act taken in excess
of his jurisdiction, whereas a probate court judge would not be immune from liability if he tried a
criminal case because he clearly lacked all subject matter jurisdiction. Id. at 357 n. 7 (citing
Bradley v. Fisher, 80 U.S. 335,352 (1871».
In assessing whether the state superior court judge defendants acted in the complete
absence ofjurisdiction, it bears noting that Plaintiff states repeatedly that she is not suing judges
for their orders and opinions rendered in her various trips through the state court system; rather,
she is suing because they allegedly deprived her of various rights, such as due process, prior to
issuing those decisions. See Mem. in Support of Resp. to Mot. to Dismiss [DE-67] p. 5 ("It is
not their decisions [Plaintiff] complains of, but the fact that they deprived her of prior notice or
an opportunity to be heard and other rights prior to their entry."); p. 6 ("Regardless of whether
defendants decided correctly or not, injury to the Plaintiff in her rights had already occurred ....
24
Plaintiff does not rely on the substance of their decisions to support her claims, only the
deprivation of rights that preceded them."); p. 14 (arguing that Plaintiff is seeking relief for
injury to her in rights "betore [the orders and opinions] were entered") (emphasis in original).
The actions of the state superior court judge defendants of which Plaintiff complains all occurred,
of course, during the course of civil actions she herself filed in state court. The State of North
Carolina vests its judicial power exclusively in its General Court of Justice, see N.C. Const. Art.
IV, Sec. 1; N.C. Gen. Stat. § 7A-3, and subject matter jurisdiction over civil actions is statutorily
conferred on the superior court and district court divisions as the trial divisions of the General
Court of Justice. See N.C. Gen. Stat. § 7A-240 ("Except for the original jurisdiction in respect of
claims against the State which is vested in the Supreme Court, original general jurisdiction of all
justiciable matters of a civil nature cognizable in the General Court of Justice is vested in the
aggregate in the superior court division and the district court division as the trial divisions of the
General Court of Justice"). See also Harris v. Pembaur, 84 N.C. App. 666, 667-68, 353 S.E.2d
673, 675 (1987) (explaining that "[s]ubject matter jurisdiction refers to the power of the court to
deal with the kind of action in question" and observing that it is "evident that ... the trial courts
of North Carolina have subject matter jurisdiction over 'all justiciable matters of a civil nature.'
"). Plaintiff does not suggest that her various state court actions were not "justiciable matters;"
all indications are that they were. It cannot be said, therefore, that any of the superior court judge
defendants, while acting in the course of Plaintiff's various state court actions, proceeded in the
"complete absence ofjurisdiction." Plaintiffs allegations that decisions9 were rendered out of
9 Plaintiff's allegations and arguments are inconsistent, of course. In one breath she
argues that she is not challenging various orders and opinions of the state superior court judges,
and in the next, she is arguing that these judges lacked subject matter jurisdiction because the
25
session or while her various cases were on appeal do nothing to change this result. See Chu, 771
F. 2d at 81 ("There is no [absolute] immunity, of course, if the judge undertakes to act in an area
where he has no subject matter jurisdiction, but it is immaterial that his challenged judicial act
may have been unauthorized by the laws which govern his conduct."); Billingsley v. Kyser, 691
F.2d 388,389-90 (8th Cir. 1982) (finding that although a state court judge may have lacked
authority to amend a criminal defendant's sentence once the defendant filed a notice of appeal,
the judge nevertheless "acted within his judicial capacity and within his general jurisdiction"
because he was empowered to rule on criminal matters).
Nor do Plaintiffs allegations establish that the state appellate judge defendants acted in
complete absence of subject matter jurisdiction. Plaintiff alleges that at least some of the
appellate state judge defendants acted without subject matter jurisdiction by deciding a contested
issue of fact-the applicability of the 2001 Gatekeeper Order-and by "collaterally review[ing]"
the 2001 Gatekeeper Order. Amended Compl. (II) ~~ 79,82-84. A plain reading of the judges'
opinion, however, belies Plaintiffs assertion. See Dalenko v. Monroe, 197 N.C. App. 231, 676
S.E.2d 670, 2009 WL 138333 at **5-7.\0 Interpreting the applicability ofa gatekeeping order is
not an "issue of fact," nor does recognizing a gatekeeping order's existence and applicability
amount to "collateral review" of it.
In sum, the court finds that Plaintiffs' allegations against the state judge Defendants all
concern judicial acts which were not taken in the complete absence ofjurisdiction, and therefore
decisions were rendered "out of session" of court.
10 Again, the court references the Monroe opinion because it is integral to and explicitly
relied on in the Amended Complaint (II) and Plaintiff does not challenge its authenticity. See
infra note 2.
26
these Defendants are entitled to absolute judicial immunity. Plaintiff's claims for damages
against these state judge Defendants in their individual capacities therefore are DISMISSED. I I
4. Quasi-judicial immunity
The court also finds that Defendant Williams, as an assistant clerk of court for Wake
County, is entitled to quasi-judicial immunity as to Plaintiff's claim for damages against him in
his individual capacity. It is well-settled that court clerks are accorded derivative absolute
immunity when they act in obedience to ajudicial order or under the court's direction. McCray
v. State ofMd, 456 F.2d I, 5 n.ll (4th Cir. 1972) ("Since judges are immune from suit for their
decisions, it would be manifestly unfair to hold liable the ministerial officers who merely carry
out that judicial will."). Here, Plaintiff only alleges actions that Defendant Williams refused to
docket her latest state court action for failure to comply with the 2001 Gatekeeping Order. This
action, taken in accordance with the 2001 Gatekeeping Order itself, entitles Williams to quasijudicial immunity. Plaintiffs' protestations to the contrary are unavailing. Accordingly,
Plaintiffs' claim against Defendant Williams in his individual capacity is DISMISSED.
5. Service of Process
Because the court has concluded that all of Plaintiff's claims against the state judicial
Defendants must be dismissed because of collateral estoppel, pursuant to the Rooker-Feldman
doctrine, and/or because of the application ofjudicial immunity, the court declines to address the
parties' arguments regarding service of process.
11 This also provides an independent reason, other than collateral estoppel, for this
court's detennination that it lacks jurisdiction over Plaintiff's claims for relief against Defendants
Stephens, Pittman, Titus, Jackson, Wynn, and Robert N. Hunter, Jr. arising out of the N&O
litigation.
27
III. CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Strike [DE-56] is DENIED. The Motion
to Dismiss [DE-41] is ALLOWED, and Plaintiff's claims against Defendants Donald W.
Stephens, Shannon R. Joseph, William R. Pittman, Kenneth C. Titus, Sanford L. Steelman, Jr.,
Barbara A. Jackson, Donna S. Stroud, Robert C. Hunter, James A. Wynn, Jr., Sam Ervin, IV,
Robert N. Hunter, Jr., and F. Blare Williams are DISMISSED. Plaintiffs Protective Motion to
Extend Time for Service on State Officials in their Individual Capacities [DE-70] is DENIED as
moot. The Clerk of Court is DIRECTED to continue the management of this case.
SO ORDERED. This the ~ day of January, 2013.
J
ESC.FOX
Senior United States District Judge
28
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