McMillian v. Cousins, et al
Filing
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ORDER granting 6 Motion for Leave to Proceed in forma pauperis; granting 8 Motion for Leave to Proceed in forma pauperis; granting 10 Motion to Amend Complaint and Subsitute Party; denying as moot 11 Motion to Proceed Pro Se as an Indigen t Party; denying 12 Motion to Appoint Counsel; and adopting in part 13 Memorandum and Recommendation - Plaintiff McMillian is added as a party and the U.S. Courts, Jails and Prisons Coalition is dropped. Plaintiff Liverman's claims are DI SMISSED AS FRIVOLOUS. Plaintiff McMillian's § 1983 claims against defendant Parker, his § 1985 claim against defendants Parker, Hunt, and Cousins, and his claim against Judge Bousman are also DISMISSED AS FRIVOLOUS. Plaintiff McMillian 's § 1983 Claim against N.C. State and its admissions officers is ALLOWED to proceed, but his request for a preliminary injunction against N.C. State is DENIED. The court DECLINES to adopt the M&R where it recommends entry of a pre-filing injunction against plaintiff McMillian. Signed by District Judge Louise Wood Flanagan on 01/30/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-814-FL
THE U.S. COURTS, JAILS AND
PRISONS COALITION; LINDA C.
LIVERMAN; and ERIC M. McMILLIAN
Plaintiffs,
v.
DETECTIVE R.L. PARKER, PAUL
COUSINS, and DR. HUNT,
Defendants.
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ORDER
This matter comes before the court on plaintiff Linda Liverman’s (“plaintiff Liverman”)
particularized motion to proceed in forma pauperis (DE 6), plaintiff Eric McMillian’s (“plaintiff
McMillian”) motion for leave to proceed in forma pauperis (DE 8), plaintiff McMillian’s motion
to amend complaint and substitute party (DE 10), frivolity review of plaintiffs’ complaint pursuant
to 28 U.S.C. § 1915, plaintiffs’ “Motion to Proceed Pro Se as an Indigent Party” (DE 11); and
plaintiffs’ motion to appoint counsel (DE 12).
Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States
Magistrate Judge William A. Webb issued a memorandum and recommendation (“M&R”), wherein
it is recommended that the court grant plaintiffs’ applications to proceed in forma pauperis, grant
plaintiffs’ motion to amend complaint and substitute party, deny plaintiffs’ “Motion to Proceed Pro
Se as an Indigent Party” as moot, deny plaintiffs’ motion to appoint counsel, dismiss plaintiff
Liverman’s claims as frivolous, dismiss in part plaintiff McMillian’s claims as frivolous, and enter
a pre-filing injunction standard order against plaintiff McMillian with respect to his January 2011
search, arrest, and detention. No objections to the M&R were timely filed and issues raised are ripe
for ruling.1 For the reasons that follow, the court adopts the M&R as its own except as to that part
where it recommends issuance of a pre-filing injunction against plaintiff McMillian.
COURT’S DISCUSSION
A.
Standard of Review
The district court reviews de novo those portions of a magistrate judge’s M&R to which
specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review
where a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for
“clear error,” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
B.
Analysis
1.
Plaintiffs’ Motion to Amend Complaint and Substitute Party
Plaintiffs have filed a proposed amended complaint. In this complaint plaintiffs would
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Objections to the M&R were to be filed no later than December 30, 2013. Plaintiffs untimely filed objections on
January 6, 2013 (DE 14). Accordingly the court reviews only for clear error. The court further notes than many of these
objections are general and conclusory in nature, and are not directed to a specific asserted errors in the M&R. Even were
the court to give de novo review to these objections, they would be overruled. The court does, however, specifically
consider plaintiffs’ objections to the imposition of a pre-filing injunction against plaintiff McMillian. See Cromer v.
Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004) (requiring that the individual to be enjoined receive notice
and an opportunity to be heard).
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substitute plaintiff McMillian for “the U.S. Courts, Jails and Prisons Coalition.” The court adopts
the recommendation in the M&R that this document be construed as a motion to amend and
substitute party, and that this motion be granted where the complaint has not yet been served. See
Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleading once as a matter of course within . . . 21
days of serving it . . . .”); Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time,
on just terms, add or drop a party.”). Plaintiff McMillian is added as a party and the U.S. Courts,
Jails and Prisons Coalition is removed as a party.
2.
Plaintiffs’ Motions to Proceed In Forma Pauperis and “Motion to Proceed Pro Se
as an Indigent Party”
Both plaintiff McMillian and plaintiff Liverman have filed applications to proceed in forma
pauperis. As noted in the M&R both plaintiff Liverman and plaintiff McMillian have demonstrated
in these applications evidence of inability to pay the required court costs. See DE 6, 8; 28 U.S.C.
§ 1915(a)(1). Accordingly, these applications will be granted. Plaintiffs have also filed a “Motion
to Proceed Pro Se as an Indigent Party.” Because plaintiffs’ “Motion to Proceed Pro Se as an
Indigent Party” requests no relief not already granted by the grant of plaintiffs’ in forma
pauperis applications, as recommended in the M&R, this motion is denied as moot.
3.
Frivolity Review
Under 28 U.S.C. § 1915(e)(2)(B), the court must dismiss a case brought in forma pauperis
if the court determines that the action is frivolous or malicious, fails to state a claim upon which
relief can be granted, or seeks monetary damages from a defendant that is immune from such
recovery. A complaint is “frivolous” if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim has no arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at 327. A claim lacks an arguable basis in fact if the
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allegations are clearly baseless; that is to say “fanciful . . . fantastic . . . and delusional.” Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992). The court bears in mind, however, that a “document filed
pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
Plaintiffs’ meandering complaint is often difficult to understand, but construed generously,
it appears to assert a claim against defendant Detective R.L. Parker (“defendant Parker”) and by the
Raleigh Police Department pursuant to 42 U.S.C. § 1983 for alleged violations of plaintiff
Liverman’s rights arising out of defendant Parker’s arrest of plaintiff McMillian. It appears also to
assert a claim by plaintiff McMillian against defendant Parker under § 1983; a claim by plaintiff
McMillian against defendants Parker, Dr. Hunt (“defendant Hunt”), and Paul Cousins (“defendant
Cousins”) for conspiracy to prevent plaintiff McMillian’s re-entry into North Carolina State
University (“N.C. State”) in violation of 42 U.S.C. § 1985; a claim against N.C. State and defendants
Hunt and Cousins under § 1983 for denying plaintiff McMillian readmission to N.C. State; and a
claim for gross negligence against Judge Monica M. Bousman (“Judge Bousman”) for wrongfully
issuing an ex parte domestic violence protective order against him.
a.
Plaintiff Liverman’s Claims
Plaintiff Liverman’s claims against defendant Parker are frivolous. She seeks damages from
defendant Parker pursuant to 42 U.S.C. § 1983 for allegedly “staging a ‘false arrest’” of plaintiff
McMillian at plaintiff Liverman’s residence. Am. Compl. ¶ 32. As set forth in the M&R, a plaintiff
must allege sufficient facts to show she was deprived of rights guaranteed by the Constitution of law
of the United States as a result of conduct committed by a person acting under color of state law.
West v. Adkins, 487 U.S. 42, 49 (1988). There are no allegations of any deprivation of plaintiff
Liverman’s rights guaranteed by the Constitution of laws of the United States. Rather the complaint
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alleges harms accruing to plaintiff McMillian.
In plaintiffs’ prayer for relief, plaintiff Liverman also seeks damages against the Raleigh
Police Department (“RPD”). To the extent any claims are asserted against the RPD – which is not
named as a defendant in the caption of plaintiffs’ complaint – they are frivolous. The RPD is not
an entity with the capacity to be sued. For a party that is not a an individual or corporation, its
capacity to be sued is determined by the law of the state where the district court is located. Fed. R.
Civ. P. 17(b)(3). In North Carolina “in the absence of statute, the capacity to be sued exists only in
persons in being.” McPherson v. First & Citizens Nat. Bank of Elizabeth City, 240 N.C. 1, 18
(1954).
No such statute authorizes a suit against the RPD.
Thus the court adopts the
recommendation of the M&R and dismisses plaintiff Liverman’s claims as frivolous
b.
Plaintiff McMillian’s Claims
Plaintiff McMillian first claims that defendant Parker maliciously and wrongfully searched
plaintiff Liverman’s residence, and arrested and detained plaintiff McMillian on trumped up charges
of armed robbery, in violation of 42 U.S.C. § 1983. It is recommended in the M&R that these claims
be dismissed as frivolous where they are barred under the doctrine of res judicata. Res judicata bars
claims from being brought if: (1) there was a final judgment on the merits in a prior suit; (2) the
parties are identical, or in privity, in the two actions; and, (3) the claim in the second matter is based
upon the same cause of action involved in the earlier proceeding. See Grausz v. Englander, 321 F.3d
467, 472 (4th Cir. 2003).
As set forth in detail in the thorough analysis of the M&R, these § 1983 claims against
defendant Parker are barred. Plaintiff McMillian has raised these claims before against the same
parties, and those cases were subject to what constitutes a judgment on the merits for purposes of
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frivolity review. See McMillian v. City of Raleigh et al., No 5:11-cv-67-BO, (DE 1, 5) (E.D.N.C.
Mar. 15, 2011), aff’d, McMillian v. City of Raleigh, 441 F. App’x 154 (4th Cir. 2011); McMillian
v. Parker et al., No. 5:12-cv-129-H, (DE 5, 18) (E.D.N.C. Mar. 11, 2013) (cases involving the same
parties and claims as the instant case in which the judgments rendered operate as adjudication on
the merits for purposes of frivolity review). Because plaintiff McMillian’s claims against defendant
Parker are barred by res judicata, they are dismissed.
Plaintiffs’ complaint, construed broadly, also alleges that defendant Parker conspired with
N.C. State through its officers, defendants Cousins and Hunt, to wrongfully arrest McMillian so as
to prevent his readmission to N.C. State. A plaintiff has an action for recovery under 42 U.S.C. §
1985(3) when “two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection of the
laws.” To state a cause of action under § 1985(e), a plaintiff must allege:
(1) a conspiracy of two or more persons, (2) who are motivated by a specific
class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law to all, (4) and which results in injury
to the plaintiff as (5) a consequence of an overt act committed by the defendants in
connection with the conspiracy.”
A Soc’y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011).
As discussed in the M&R, plaintiffs have failed to support with factual allegations in their
complaint that the persons in the alleged conspiracy were “motivated by a specific class-based,
invidiously discriminatory animus.” Moreover, the assertions that N.C. State conspired with
defendant Parker to have plaintiff McMillian arrested and charged are “fantastic” and “clearly
baseless.” Denton, 504 U.S. at 32-33. Accordingly, to the extent that plaintiff McMillian asserts
a § 1985 claim against defendants – or against N.C. State – such a claim is dismissed.
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Plaintiffs’ complaint also alleges that N.C. State, together with defendants Hunt and Cousins,
wrongfully denied plaintiff McMillian readmission to N.C. State.2 For reasons given in the M&R,
this claim will not be dismissed for frivolity. Under a liberal reading of the complaint, plaintiff
McMillian has alleged the denial of his readmission was arbitrary and unreasonable. Such a claim
is not frivolous. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (concluding
that education is not a right guaranteed by the Federal Constitution); Mann v. Princeton Cmty. Hosp.
Ass’n., Inc., 956 F.2d 1162 (4th Cir. 1992) (Upholding grant of summary judgment for defendant
doctors and hospital on plaintiff’s claim that denial of a job violated his equal protection and due
process rights because “[t]he standards used to deny privileges to Mann were not arbitrary,
capricious, or unreasonable.”); Davis v. Se. Cmty. Coll., 424 F. Supp. 1341, 1344 (E.D.N.C. 1976)
(“The admission to a state community college is a privilege and not by itself a constitutional or
property right, subject to the exception that the rules and regulations for admission are not arbitrary
or unreasonable.”). Nevertheless, plaintiff McMillian’s request for a preliminary injunction against
N.C. State is denied where he has not shown a likelihood of success on the merits. See Winter v.
Natrual Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (“A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits . . . .”).
Finally, although she is not named in the caption as a defendant, plaintiffs allege that Judge
Bousman issued a domestic violence protective order against plaintiff McMillian and was grossly
negligent in doing so. Plaintiff McMillian has asserted a claim for damages against Judge Bousman.
“It has long been settled that a judge is absolutely immune from a claim for damages arising out of
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Although plaintiffs did not name N.C. State as a defendant in his complaint, he seeks an injunction against N.C. State.
Reading plaintiffs’ pro se complaint broadly, see Erickson, 551 U.S. at 94, the court adopts the recommendation in the
M&R that plaintiff McMillian intended to sue N.C. State as well as the named defendant officers of N.C. State.
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his judicial actions.” Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985). Therefore plaintiff
McMillian’s claim against Judge Bousman is dismissed for frivolity.
4.
Plaintiffs’ Motion to Appoint Counsel
Plaintiffs have also filed a motion requesting this court appoint them counsel. As set forth
in the M&R, there is no right to counsel in civil cases absent “exceptional circumstances.” Marshall
v. Wouldridge, 958 F.2d 368 (4th Cir. 1992). Plaintiffs have made no such showing. Therefore this
motion is denied.
5.
Pre-filing Injunction
The court turns now to the recommendation in the M&R that the court consider entry of a
pre-filing injunction against plaintiff McMillian barring any further suits arising out of his January
2011 search, arrest, and detention. The court maintains the authority under the All Writs Act, 28
U.S.C. § 1651, “to limit access to the courts by vexatious and repetitive litigants.” Cromer v. Kraft
Foods N. Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). This remedy must be used sparingly, and
access to the court should not be limited absent exigent circumstances. Id. at 817-18. “In
determining whether a pre-filing injunction is substantively warranted,” this court is required to
weigh all the relevant circumstances, including (1) the party’s history of litigation,
in particular whether he has filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for pursuing the litigation, or simply
intended to harass; (3) the extent of the burden on the courts and other parties
resulting from the party’s filings; and (4) the adequacy of alternative sanctions.
Id. at 818. The court must narrowly tailor any injunction to fit the specific circumstances justifying
the injunction. Id.3
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Before issuing a pre-filing injunction, the court must give the individual to be enjoined notice and an opportunity to
be heard. Cromer, 390 F.3d at 819. This requires the court to ensure that the individual has the opportunity to oppose
the court’s order before it is imposed. Id. (citing Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993)). Here, the court
finds that plaintiff McMillian has been given the opportunity to be heard, as he was informed of the possibility of a pre-
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Plaintiff McMillian has filed numerous repetitive lawsuits. See, e.g., No. 5:13-ct-3259-D;
No. 5:12-ct-3035-D; No. 5:11-ct-3183-FL; No. 5:11-ct-3181-FL; No. 5:10-ct-3037-FL (all alleging
deficiencies in prison food). Many of Plaintiff McMillian’s complaints have been dismissed as
frivolous. See, e.g., No. 5:12-ct-03035-D; No. 5:11-cv-67-BO; No. 5:11-ct-3234-BO; No. 5:11-ct3183-FL; No. 5:10-cv-359-D; No. 5:10-ct-3036-BO; No. 5:09-ct-3144-FL; No. 5:09-ct-3141-D; No.
5:08-cv-586-FL. Thus plaintiff’s history of litigation weighs against him. Furthermore, this court,
which already maintains one of the heaviest dockets in the Fourth Circuit, has been burdened by
plaintiff’s frivolous lawsuits.
In this case, however, it is not entirely clear that plaintiff simply intended to harass by the
filing of this suit, nor that an injunction is required to prevent further frivolous litigation with respect
to his January 2011 search, arrest, and detention. Accordingly the court declines to enter such an
injunction at this time. The court notes, however, that one previous suit against the City of Raleigh
and RPD by plaintiff McMillian arising out of these January 2011 events has already been dismissed
as frivolous. See McMillian v. City of Raleigh et al., No 5:11-cv-67-BO. The court now warns
plaintiff McMillian that any further frivolous litigation arising out of the January 2011 search, arrest,
and detention may very well result in a pre-filing injunction being entered against him.
CONCLUSION
Based upon the foregoing the court ADOPTS IN PART the M&R. Plaintiff Liverman’s
particularized motion to proceed in forma pauperis (DE 6), and plaintiff McMillian’s motion for
leave to proceed in forma pauperis (DE 8) are GRANTED. Plaintiffs’ motion to amend complaint
filing injunction and the basis therefor by the M&R. Although plaintiffs’ objections to the M&R were late-filed, the
court nevertheless considers plaintiffs’ objections insofar as they relate to imposition of a pre-filing injunction against
plaintiff McMillian.
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and substitute party is also GRANTED (DE 10) and plaintiff McMillian is added as a party and the
U.S. Courts, Jails and Prisons Coalition is dropped. Plaintiffs’ “Motion to Proceed Pro Se as an
Indigent Party” (DE 11) is DENIED AS MOOT, and plaintiffs’ motion to appoint counsel (DE 12)
is DENIED. Plaintiff Liverman’s claims are DISMISSED AS FRIVOLOUS. Plaintiff McMillian’s
§ 1983 claims against defendant Parker, his § 1985 claim against defendants Parker, Hunt, and
Cousins, and his claim against Judge Bousman are also DISMISSED AS FRIVOLOUS. Plaintiff
McMillian’s § 1983 Claim against N.C. State and its admissions officers is ALLOWED to proceed,
but his request for a preliminary injunction against N.C. State is DENIED.
The court DECLINES to adopt the M&R where it recommends entry of a pre-filing
injunction against plaintiff McMillian.
SO ORDERED, this the 30th day of January, 2014.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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