Myers et al v. The State of North Carolina et al

Filing 164

ORDER: the court GRANTS defendants' motions to strike 81 , 99 , 101 , 115 all references to Myers's minor children as parties. The children are no longer parties. The court GRANTS the motions to dismiss with prejudice as to defendants (1) The State of North Carolina, North Carolina Court System, Office of Indigent Defense Services, Keith Underwood, Bethany Hale, Walter Stanley, and Johnston County Public Defender's Office 35 , (2) The Johnston CountySheriff's Departmen t 140 , (3) Steven Walker and Walker Law Firm, PLLC 78 , (4) Aleta Ballard and Ballard Law Firm, PLLC 81 , (5) Krista Bennett, John Silverstein, Fern Gunn Simeon, and Unknown Agents of the North Carolina State Bar 101 , and (6) North Carolina De partment of Health and Human Services 115 . The claims against these defendants are DISMISSED with prejudice. As for the remaining defendants, the court GRANTS without prejudice their motions to dismiss 35 , 64 , 99 , 138 . Myers may file an ame nded complaint against these other defendants but any amended complaint must comply with this order and the Federal Rules of Civil Procedure. Myers may file such an amended complaint not later than September 3, 2013. Signed by Chief Judge James C. Dever III on 8/16/2013. A copy of the Order was mailed to the pro se plaintiff. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-714-D

LOUSHONDA MYERS, individually
and on behalf of her minor children
C.M., A.M., and M.M.,
Plaintiffs,

v.

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THE STATE OF NORTH CAROLINA,
et al.,
Defendants.

ORDER

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On November 19, 2012, Loushonda Myers ("Myers"), who is proceeding prose, filed suit
seeking $25 million in damages on behalf of herself and her three minor children from 4 7
defendants. Myers's complaint is difficult to understand, but essentially she alleges a wide-ranging
conspiracy including violations of federal law, state law, and her constitutional rights arising from
a traffic stop, search of her home, and arrest on October 12, 2010. See Compl. [D.E. 3]. Defendants
timely filed motions to strike and motions to dismiss [D.E. 35, 64, 78, 81, 99, 101, 115, 138, 140].
See Fed. R. Civ. P. 12(b)(6), (f). As explained below, the court grants defendants' motions to strike
all references to Myers's minor children as parties, grants some defendants' motions to dismiss the
complaint with prejudice, and grants other defendants' motions to dismiss the complaint without
prejudice. Myers may file an amended complaint no later than September 3, 2013.
I.
First, the court addresses defendants' motions to strike all references to Myers's minor
children as parties. Federal Rule of Civil Procedure 12(f) allows a court to "strike from a pleading

... any redundant, immaterial, impertinent, or scandalous matter." Although granting a motion to
strike is generally disfavored, the court has such discretion. See Waste Mgmt. Holdings. Inc. v.
Gilmore,252F.3d316, 347 (4thCir. 2001); F.D.I.C. v. Willetts, 882F. Supp. 2d 859, 870(E.D.N.C.
2012). Non-attorney prose plaintiffs may not litigate their minor children's claims. See Myers v.
Loudoun Cnty. Pub. Sch., 418 F.3d 395,400 (4th Cir. 2005); Oxendine v. Williams, 509 F.2d 1405,
1407 (4th Cir. 1975) (per curiam). The policy animating the rule against allowing non-attorney pro
se plaintiffs to litigate their children's claims is "based on protection of the legal interests of the
minor and the impropriety of a person who is not a member of the bar representing another person
in court proceedings." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005); see
Myers, 418 F.3d at 400.
On April4, 2013, the court directed Myers to explain why she believes she may litigate on
behalf of her minor children [D.E. 144]. On April22, 2013, Myers responded [D.E. 153-54], but
failed to rebut the Fourth Circuit precedent that non-attorney pro se plaintiffs may not litigate claims
on behalf of their minor children. See Myers, 418 F.3d at 400; Oxendine, 509 F.2d at 1407.
Myers may not litigate her minor children's claims. Any reference to the children as parties
is immaterial and impertinent. Accordingly, under Rule 12(t), the court strikes all references to the
Myers's minor children as parties. See Myers, 418 F.3d at 400; see also Spears v. Liberty Life
Assurance Co. ofBos., 885 F. Supp. 2d 546, 557 (D. Conn. 2012); Smith v. Jefferson Pilot Fin. Ins.
Co., 367 F. Supp. 2d 839, 841--44 (M.D.N.C. 2005); Gourdine v. Ellis, 435 F. Supp. 882, 883-84
(D.S.C. 1977); 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§ 1382
(3d ed. 2004). The children are no longer parties.
Next, the court addresses the defendants' motions to dismiss. A motion to dismiss under
Rule 12(b)(6) for "failure to state a claim upon which relief can be granted" tests whether the
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complaint is legally and factually sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Bell Atl. Com. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court
ofAweals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 132 S. Ct. 1327 (2012); Giarratano v. Johnson,
521 F.3d 298, 302 (4th Cir. 2008). In considering a motion to dismiss, a court need not accept a
complaint's legal conclusions drawn from the facts. See,~. Iqbal, 556 U.S. at 678. A court also
"need not accept as true unwarranted inferences, unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. In construing
Myers's complaint, the court has considered her pro se status and held the complaint to a lessstringent standard than a pleading drafted by a lawyer. See Erickson v. Pardus, 551 U.S. 89, 93-94
(2007) (per curiam). Nonetheless, Myers must comply with the Federal Ru1es of Civil Procedure.
See id.; Iqbal, 556 U.S. at 678; Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)
(per curiam).
Myers seeks only damages. Myers alleges a conspiracy against her under 42 U.S.C. § 1985.
See id. ~~2, 27-31. A cause ofactionmayexist under42 U.S.C. § 1985 when two or more persons
conspire to interfere with an individual's civil rights. To state a claim under section 1985, a claimant
"must show an agreement or a meeting of the minds by defendants to violate the claimant's
constitutional rights." Simmons v. Poe, 4 7 F .3d 1370, 13 77 (4th Cir. 1995) (quotation omitted). The
Fourth Circuit "has rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a
section 1985 conspiracy" and has "specifically rejected 1985 claims whenever the purported
conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.''
Id.; Fox v. City of Greensboro, 807 F. Supp. 2d 476,495-96, (M.D.N.C. 2011) (collecting cases);
Ward v. Coastal Carolina Health Care. P.A., 597 F. Supp. 2d 567,571-72 (E.D.N.C. 2009) (same).
Here, Myers's section 1985 claim is merely conclusory and does not plausibly allege an actionable
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section 1985 claim. Thus, the section 1985 claim fails and is dismissed.
Myers's complaint also mentions 42 U.S. C.§ 1981. See Compl., 2. Section 1981 protects
the right of individuals to make and enforce contracts without racial discrimination. To establish a
claim under section 1981, a plaintiff must prove purposeful race discrimination in the making,
performance, modification, or termination of a contract, or that affects enjoyment of the benefits,
privileges, terms or conditions of a contractual relationship. See 42 U.S.C. § 1981(b); Domino's
Pizza. Inc. v. McDonald, 546 U.S. 470,476-77 (2006); Spriggs v. Diamond Auto Glass, 165 F.3d
1015, 1018 (4th Cir. 1999); Cooper v. Brunswick Cnty. Sheriff's Dep't, 896 F. Supp. 2d 432, 443
n.5 (E.D.N.C. 2012). Myers's claims do not concern any contractual rights protected by section
1981. Thus, Myers's section 1981 claim fails and is dismissed. See McDonald, 546 U.S. at 4 76-77;
Cooper, 896 F. Supp. 2d at 443 n.5.
Myers's complaint also asserts violations of her rights under the First, Fourth, Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and various other federal laws
pursuant to 42 U.S.C. § 1983. Compl. , 2. "Section 1983 is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver,
510 U.S. 266,271 (1994) (quotations omitted). To state a claim under section 1983, a plaintiff must
"allege the violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state law." West
v. Atkins, 487 U.S. 42,48 (1988); see Filarskyv. Deli~ 132 S. Ct. 1657, 1661 (2012); Philips v. Pitt
Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
As for Myers's section 1983 claims against the state ofNorth Carolina, North Carolina state
agencies (including the North Carolina Court System, Office of Indigent Defense Services, and
North Carolina Department ofHealth and Human Services), and North Carolina state officials acting
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in an official capacity, the Eleventh Amendment bars suits against the state, absent consent or
congressional abrogation. See U.S. Const. amend. XI; Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
72-73 (2000); Seminole Tribe of Fla. v. Florid!!, 517 U.S. 44, 54 (1996); Will v. Mich. Dep't of
State Police, 491 U.S. 58,66 (1989); Edelman v. Jordm 415 U.S. 651,663 (1974). "The Eleventh
Amendment confirms that the fundamental principle of sovereign immunity limits the grant of
judicial authority in [Article] ill" of the Constitution. Green v. Mansour, 474 U.S. 64, 68 (1985)
(quotation omitted). State agencies and state officials acting in their official capacities also are
protected against a claim for damages because a suit against a state office is no different from a suit
against the state itself. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,429 (1997); Will, 491
U.S. at 71; Edelman, 415 U.S. at 666--68; Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474, 479 (4th Cir. 2005). Myers has not plausibly alleged that North Carolina has
consented to this suit for damages or that Congress has abrogated the state's immunity. See, e.g.,
Will, 491 U.S. at 67--68. Thus, the court grants defendants' motions to dismiss with prejudice as to
the state ofNorth Carolina, North Carolina state agencies, and North Carolina state officials acting
in their official capacities. See U.S. Const. amend. XI.
As for Myers's section 1983 claims against her criminal defense attorneys, Steven Walker
("Walker") and Aleta Ballard ("Ballard"), and their law firms, Walker Law Firm, PLLC, and Ballard
Law Firm, PLLC, see [D.E. 78-79, 81-82], a criminal defense attorney, whether retained, courtappointed, or a public defender, does not act under color of state law. Thus, defense attorneys are
not amenable to suit under section 1983. See Polk Cnty. v. Dodso!l, 454 U.S. 312, 318-25 (1981);
Hall v. Quillen, 631 F.2d 1154, 1155-56 (4th Cir. 1980); Deas v. Potts, 547 F.2d 800, 800 (4th Cir.
1976) (per curiam). Moreover, Myers has failed to plausibly allege that Walker and Ballard
participated in any alleged conspiracy. See Dennis v. Sparks, 449 U.S. 24,27-28 (1980); Stubbs v.

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Hunter, 806 F. Supp. 81,83 (D. S.C. 1992). Myers also cannot sue Walker's and Ballard's law firms
under section 1983. See,~. Polk Cnty., 454 U.S. at 318-25. Thus, the court dismisses with
prejudice Myers's claims against Walker, Ballard, and their law firms.
As for Myers's section 1983 claims against Krista Bennett, Fern Gunn Simeon, John
Silverstein, and "unknown agents of the North Carolina State Bar" (collectively, "State Bar
defendants"), see (D.E. 101--()2], the North Carolina State Bar is an agency of the state ofNorth
Carolina. See N.C. Gen. Stat.§ 84-15. Thus, the State Bar defendants are state officials and enjoy
immunity for their actions taken in an official capacity. See Will, 491 U.S. at 71; see,~. Nivens
v. Gilchrist 444 F .3d 23 7, 249 (4th Cir. 2006). As for Myers's section 1983 claims against the State
Bar defendants in their individual capacities, the State Bar defendants enjoy prosecutorial immunity.
Notably, Myers's claims against the State Bar defendants arise from their alleged failure to take
disciplinary actions against her former attorneys. Prosecutors are absolutely immune from suits for
money damages for actions in or connected with judicial proceedings. See Imbler v. Pachtman, 424
U.S. 409,431 (1976); Nivens, 444 F.3d at 250. This prosecutorial immunity extends to state bar
officials performing a disciplinary role. See, e.g., Green v. State Bar of Tex., 27 F.3d 1083, 1088
(5th Cir. 1994); Clulow v. Oklahomil, 700 F.2d 1291, 1298 (lOth Cir. 1983), overruled on other
grounds by Newcomb v.lngle, 827 F.2d 675 (lOth Cir. 1987); Simons v. Bellinger, 643 F.2d 774,
778-79(D.C. Cir.l980);cf. Ostrzenski v. Seigel, 177F.3d245,248-49(4thCir.l999)(recognizing
absolute immunity for members of state medical disciplinary boards). Deciding whether to bring
a disciplinary case against a lawyer is a core prosecutorial function protected by absolute immunity.
See,~,Buck1eyv. Fitzsimmons, 509U.S. 259,272-73

(1993); lmbler,424 U.S. at424-26&n.24.

Absolute immunity protects the State Bar defendants from Myers's claims regarding their alleged
failure to discipline her attorneys. Accordingly, the court grants the State Bar defendants' motion

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to dismiss and dismisses these claims with prejudice.
As for the motion to dismiss of Magistrate Judge Keith Underwood, Magistrate Judge
Bethany Hale, and Magistrate Judge Walter Stanley's (collectively, 'judges") [D.E. 35-36], "[f]ew
doctrines were more solidly established at common law than the immunity of judges from liability
for damages for acts committed within their jurisdiction." Pierson v. Ray, 386 U.S. 547, 553-54
(1967), abrogated on other grounds Qy Harlow v. Fitzgerald, 457 U.S. 800 (1982); see Rehlberg v.
Paulk, 132 S. Ct. 1497, 1503 (2012). Judges enjoy absolute immunity except for actions taken
outside oftheir judicial capacity or in the complete absence ofjurisdiction. See Stump v. Sparkman,
435 U.S. 349, 360 (1978); King v. Myers, 973 F.2d 354, 356--57 (4th Cir. 1992). Myers's
allegations regarding the judges involve issuing search warrants and setting bail. See Compl. ~~ 11,
24-25. When performing these core judicial functions, the judges were acting within their judicial
capacities. See, e.g., King, 973 F.2d at 357. Thus, the judges enjoy judicial immunity and the court
dismisses with prejudice Myers's claims against the judges.
As for Myers's section 1983 claims against the Johnston County Public Defender's Office,
no such office exists. See [D.E. 36] 4; N.C. Gen. Stat.§ 7A-498.7. Thus, Myers's claim against the
Johnston County Public Defender's Office is dismissed with prejudice. Likewise, the Johnston
County Sheriff's Department is not amenable to Myers's section 1983 claims and is dismissed. See,
~'Hill v.

Robeson Cnty., 733 F. Supp. 2d 676,690 (E.D.N.C. 2010); Parker v. Bladen Cnty., 583

F. Supp. 2d 736, 740 (E.D.N.C. 2008).
Finally, as for the remaining defendants, Myers's claims against them are asserted in vague
and confusing terms. As written, the allegations are not plausible. Under Federal Ru1e of Civil
Procedure 12(e), a court may require a party to cure defects of a vague or ambiguous pleading to
allow the opposing parties to frame responsive pleadings. Fed. R. Civ. P. 12(e). When a claimant's

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pleading is impermissibly vague, ''the court may act under Rule 12(b)(6) or Rule 12(e), whichever
is appropriate, without regard to how the motion is denominated." 5C Charles Alan Wright and
Arthur R. Miller, Federal Practice and Procedure§ 1376 (3d ed. 2004). Thus, the court grants the
remaining defendants' motions to dismiss without prejudice. Myers may file an amended complaint
against one or more ofthe remaining defendants, but the amended complaint must identify a specific
defendant or defendants as to each claim, state what the defendant or defendants allegedly did with
respect to that claim, state whether Myers is suing the defendant in the defendant's official or
individual capacity, and state why the defendant's alleged conduct as to each claim violated the law.

II.
In sum, the court GRANTS defendants' motions to strike [D.E. 81, 99, 101, 115] all
references to Myers's minor children as parties. The children are no longer parties. The court
GRANTS the motions to dismiss with prejudice as to defendants (1) the State of North Carolina,
North Carolina Court System, Office oflndigent Defense Services, Keith Underwood, Bethany Hale,
Walter Stanley, and Johnston County Public Defender's Office [D.E. 35], (2) the Johnston County
SheriffDepartment [D.E. 140], (3) Steven Walker and Walker Law Firm, PLLC [D.E. 78], (4) Aleta
Ballard and Ballard Law Firm, PLLC [D.E. 81], (5) Krista Bennett, John Silverstein, Fern Gunn
Simeon, and unknown agents of the North Carolina State Bar [D.E. 101], and (6) North Carolina
Department of Health and Human Services [D.E. 115]. The claims against these defendants are
DISMISSED with prejudice. As for the remaining defendants, the court GRANTS without prejudice
their motions to dismiss [D.E. 35, 64, 99, 138]. Myers may file an amended complaint against these
other defendants but any amended complaint must comply with this order and the Federal Rules of
Civil Procedure. Myers may file such an amended complaint not later than September 3, 2013.

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SO ORDERED. This 1!.!_ day of August 2013.

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