Quirk v. Stephens et al

Filing 44

ORDER denying 23 Motion to Amend/Correct and granting 24 Motion to Dismiss. Signed by Senior Judge W. Earl Britt on 6/2/2017. Order to plaintiff via US Mail at P. O. Box 1684, Fuquay-Varina, NC 27526. (Marsh, K)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-00757-BR
JAMES E. QUIRK,
Plaintiff,
v.
DONALD W. STEPHENS, et al.,
Defendants.

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ORDER

This matter is before the court on the motion to amend and supplement complaint filed by
plaintiff James E. Quirk. (DE # 23.) Also before the court is the motion to dismiss filed by the
Honorable Donald W. Stephens, North Carolina Superior Court Judge; the Honorable Paul
Gessner, former North Carolina Superior Court Judge; the Honorable Kendra D. Hill, North
Carolina Special Superior Court Judge; Kellie Z. Myers; Lisa Tucker; and Teresa B. Fuller
(collectively “state judicial defendants”). (DE # 24.) No defendants filed a response to
plaintiff’s motion to amend and supplement the complaint. Plaintiff, however, filed a response
in opposition to the motion to dismiss. (DE # 37.) In this posture, the issues raised are ripe for
disposition.
I. FACTS
This action arises out of several state court proceedings initiated by plaintiff in North
Carolina Superior Court, Wake County, which plaintiff claims the state court wrongfully
dismissed. Plaintiff challenges various actions that were taken by state judicial defendants, who
were at all relevant times to this action state superior court judges or state court administrators,
during the prior state court proceedings.

The first state proceeding concerned an action filed by plaintiff on 16 January 2014,
asserting a personal injury claim against Victor Sequera, Sr. (Compl., DE # 1, at 6 ¶ 1.) Plaintiff
filed and gave notice of voluntary dismissal without prejudice on 18 August 2015. (Id. at 6 ¶ 5.)
Plaintiff alleges that his voluntary entry of dismissal “clos[ed] that case file forever, and
divest[ed] the [c]ourt of jurisdiction.” (Id.) According to plaintiff, on 4 September 2015, Judge
Stephens entered an order that “changed a case that was already dismissed without prejudice to a
dismissal with prejudice.” (Id. at 6 ¶ 8.) Plaintiff therefore claims that Judge Stephens, in
dismissing this case, “altered court records” in a closed case and “entered an unauthorized
judgment . . . when he had no jurisdiction” to do so. (Id.)
The second state proceeding concerned an action filed by plaintiff on 11 February 2015,
asserting a personal injury claim against Victor Sequera, Jr. (Id. at 6 ¶ 3.) On 24 August 2015,
plaintiff filed and gave notice of voluntary dismissal without prejudice, which he claims
“clos[ed] that case file forever, and divest[ed] the [c]ourt of jurisdiction.” (Id. at 6 ¶ 6.) Plaintiff
alleges that the following day, on 25 August 2015, Judge Gessner entered an order that “changed
a case that was already dismissed without prejudice to a dismissal with prejudice.” (Id. at 6 ¶ 7.)
He therefore claims that Judge Gessner, in dismissing his case, “altered court records” in a
closed case and “entered an unauthorized judgment . . . when he had no jurisdiction” to do so.
(Id.)
The third state proceeding concerned an action filed by plaintiff on 1 February 2016,
asserting a personal injury claim against both Sequera, Sr. and Sequera, Jr. (Id. at 6 ¶ 9.)
According to plaintiff, Judge Hill “(without cause) capriciously and arbitrarily removed all of
plaintiff’s motions from the calendar . . . , while simultaneously hearing defendants’ 12(b)(6)
motions to dismiss.” (Id. at 7 ¶ 11.) After hearing the motions, Judge Hill dismissed plaintiff’s

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complaint pursuant to Rule 12(b)(6). (Id.) Plaintiff claims that Judge Hill wrongly dismissed his
complaint based “on the two post hoc unlawful/illegal unauthorized judgment/orders in the two
underlying cases” presided over by Judge Stephens and Judge Gessner. (Id.)
On 22 August 2016, plaintiff commenced this action by filing a pro se complaint
pursuant to 42 U.S.C. § 1983. (DE # 1.) Plaintiff named the following state court officials, both
in their individual and official capacities as defendants: Judge Stephens, Judge Gessner, Judge
Hill, Myers, Tucker, and Fuller. (Id. at 1.) Plaintiff also named as defendants Sequera, Sr.,
Sequera, Jr., and two individuals who assisted in Sequera, Sr.’s legal defense. (Id.) Plaintiff
asserts that by working in conjunction with Sequera, Sr. and Sequera, Jr., state judicial
defendants committed fraud when they denied, and conspired to deny, plaintiff of his
constitutional rights to due process, equal protection, and access to the courts in violation of §
1983. (Id. at 3.) Plaintiff seeks declaratory and injunctive relief and monetary damages on his
claims. (Id. at 8.)
The other named defendants filed answers to plaintiff’s complaint on 16 September 2016.
(DE ## 15, 17, 18, 21.) On 26 September 2016, plaintiff filed a motion to amend and
supplement the complaint pursuant to Federal Rule of Civil Procedure 15. (DE # 23.) State
judicial defendants subsequently moved for dismissal of the complaint on 17 October 2016. (DE
# 24.)
II. ANALYSIS
A. Motion to Amend and Supplement Complaint
Plaintiff first seeks leave of court to amend his complaint pursuant to Federal Rule of
Civil Procedure 15(a), so that he can add former Governor McCrory as an additional defendant.
(Pl.’s Mem. Supp. Mot. Am., DE # 23-1, at 1.) Based upon a review of the proposed amended

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complaint, (DE # 23-4), it appears that plaintiff seeks to name Governor McCrory as a defendant
in both his individual and official capacities, and to assert a supervisory liability claim against
him.
Pursuant to Rule 15(a), “[a] party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, a party may only amend a
pleading by leave of the court or by written consent of the defendant. Fed. R. Civ. P. 15(a)(2).
Where a party does not assert an entitlement to amend as of right, but instead asks the court for
leave to amend, leave to amend should be freely given when justice so requires. Jonson v. Univ.
of Rochester Med. Ctr., 642 F.3d 121, 124-25 (2d Cir. 2011) (citing Fed. R. Civ. P. 15(a)(2)).
Notwithstanding this rule, a court can deny leave to amend when the amendment would be futile.
United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).
An amendment is futile where it would fail to withstand a Rule 12(b)(6) motion to
dismiss for failure to state a claim. Wolfenden v. Long, No. 5:09-CV-00536-BR, 2010 WL
2998804, at *7 (E.D.N.C. July 26, 2010) (citing Syngenta Crop Prot. v. United States EPA, 222
F.R.D. 271, 278 (M.D.N.C. 2004)). To survive a Rule 12(b)(6) motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). While the court must construe pro se complaints liberally, Laber v.
Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006), the allegations in the complaint must be enough
to raise the right to relief above the speculative level, Twombly, 550 U.S. at 555. However, “the
Fourth Circuit has held that ‘[l]eave to amend . . . should only be denied on the ground of futility

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when the proposed amendment is clearly insufficient or frivolous on its face.’” Wolfenden, 2010
WL 2998804, at *7 (alteration in original) (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 510 (4th Cir. 1986)).
It is apparent in reading the proposed amended complaint and plaintiff’s memorandum in
support of his motion to amend that plaintiff seeks to add Governor McCrory as a defendant
based upon his supervisory role. (Am. Compl., DE # 23-4, ¶ 17; Pl.’s Mem. Supp. Mot. Am.,
DE # 23-1, at 3.) Plaintiff argues that Governor McCrory is liable for the actions of state judicial
defendants under the doctrine of “respondent [sic] superior.” (Pl.’s Mem. Supp. Mot. Am., DE #
23-1, at 3.) A § 1983 claim for supervisory liability, however, cannot rest on the doctrine of
respondeat superior. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable
for the unconstitutional conduct of their subordinates under a theory of respondeat superior”);
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (recognizing that the doctrine of
respondeat superior is inapplicable to suits brought pursuant to § 1983). Supervisory “[l]iability
will only lie where it is affirmatively shown that the official charged acted personally in the
deprivation of the plaintiff’s rights.” Vinnedge, 550 F.2d at 928. A supervisory official may be
held liable under § 1983 if a subordinate acts pursuant to an official policy or custom. Shaw v.
Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Likewise, a supervisory official may be held liable for
constitutional injuries inflicted by his subordinate if:
(1) the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed a “pervasive and unreasonable risk” of
constitutional injury to citizens like the plaintiff; (2) the supervisor’s response to
that knowledge was so inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices,” and (3) there was an “affirmative
causal link” between the supervisor’s inaction and the particular constitutional
injury suffered by the plaintiff.
Id.

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In his proposed amended complaint, plaintiff alleges that on the day he initiated the
present suit, “[he] wrote Governor McCrory regarding the constitutional transgressions
mentioned [in his original complaint], and he chose not to do his statutory duty with respect to
correcting the complained of constitutional transgressions.” (Am. Compl., DE # 23-4, ¶ 17.)
Although plaintiff claims that Governor McCrory facilitated the violation of his constitutional
rights by failing to act in response to his letter, plaintiff does not allege that Governor McCrory
received the letter or that Governor McCrory had actual knowledge of the deprivation of
plaintiff’s rights. See Bullock v. Horn, No. 3CV991402, 2000 WL 1839171, at *5 (M.D. Penn.
Oct. 31, 2000) (dismissing plaintiff’s complaint where he alleged that he had sent two grievance
letters to defendants because he had failed to allege particular facts which indicated that each
defendant directly participated in, or knew of and acquiesced in, the unconstitutional conduct).
Moreover, plaintiff has made no allegation that he sustained a constitutional deprivation as a
result of an official policy or custom. See Stevens v. Sheeley, No. 5:13CV18, 2013 WL
5744782, at *2 (N.D. W. Va. Oct. 23, 2013) (dismissing plaintiff’s supervisory claim against the
governor and a local administrator because “plaintiff did not make any allegations that would
supporting a finding that the complained-of conditions were the result of an official policy or
custom”). Because the allegations in the proposed amended complaint are insufficient to plead a
supervisory liability claim, amendment of the complaint to include Governor McCrory as a
defendant would be futile. Accordingly, plaintiff’s motion to amend the complaint will be
denied.
Plaintiff also seeks leave to supplement his complaint, pursuant to Federal Rule of Civil
Procedure 15(d), to include factual allegations and a cause of action related to state judicial
defendants’ conduct after the filing of the original complaint. (Pl.’s Mem. Supp. Mot. Am., DE

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# 23-1, at 2.) Rule 15(d) allows a party to “serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Where a plaintiff seeks to supplement a pleading to add related claims against
the same defendants, the analysis under Rule 15(a) and Rule 15(d) is the same. See Franks v.
Ross, 313 F.3d 184, 198 n.15 (4th Cir. 2002) (“[T]he standards used by a district court in ruling
on a motion to amend or on a motion to supplement are nearly identical.”). In either situation,
leave should be freely granted, and should be denied only on the grounds of prejudice, bad faith,
or futility. Laber, 438 F.3d at 426-27.
Plaintiff’s proposed cause of action stems from state judicial defendants’ alleged
retaliatory conduct after he filed his original complaint. He alleges that state judicial defendants
retaliated against him for initiating this action by refusing to calendar his motions or to set a trial
or a status conference in his state court action against Sequera, Jr. and Sequera, Sr. (Am.
Compl., DE # 23-4, at 7 ¶¶ 19-20.) Plaintiff’s retaliation claim is premised on his assertion that
he is entitled to proceed against Sequera, Jr. and Sequera, Sr. in state court because Judge Hill
wrongly dismissed his complaint based on the unauthorized judgments issued by Judge Stephens
and Judge Gessner.
In his proposed amended complaint, plaintiff acknowledges that Judge Hill’s Rule
12(b)(6) dismissal determined that he had failed to set forth sufficient facts for his claims against
Sequera, Jr. and Sequera, Sr. to go forward in state court. (Am. Compl., DE # 23-4, at 7 ¶ 12.)
Under the Rooker-Feldman doctrine, federal district courts are barred from hearing “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 Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

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The Rooker–Feldman bar extends not only to issues actually presented to and decided by a state
court, but also to issues that are “‘inextricably intertwined’ with questions ruled on by a state
court.” Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005) (quoting D.C. Ct. of Appeals
v. Feldman, 460 U.S. 462, 486 (1983)). In this case, the harms alleged by plaintiff—his inability
to continue to file motions and set a trial date in his state court action—are the direct result of
Judge Hill’s Rule 12(b)(6) dismissal. Consideration of plaintiff’s retaliation claim would
therefore require this court to review the validity of the challenged state court order, which is
exactly what the Rooker-Feldman doctrine prohibits. See Hill v. West, 657 S.E.2d 698, 701
(N.C. Ct. App. 2008) (noting that unless otherwise specified, a dismissal pursuant to Rule
12(b)(6) constitutes a final judgment on the merits). Because the Rooker-Feldman doctrine
precludes this court from exercising jurisdiction over plaintiff’s proposed retaliation claim,
plaintiff’s motion to supplement the complaint will be denied.
B. Motion to Dismiss
State judicial defendants move to dismiss this action on the grounds that the court lacks
subject matter jurisdiction pursuant to Rule 12(b)(1), lacks personal jurisdiction due to plaintiff’s
failure to properly serve defendants pursuant to Rule 12(b)(2) and Rule 12(b)(5), and for failure
to state a claim pursuant to Rule 12(b)(6). (Defs.’ Mem. Supp. Mot. Dism., DE # 25, at 4.)
Because the court finds the issue of subject matter jurisdiction dispositive, the court does not
address state judicial defendants’ alternative arguments.
Pursuant to Rule 12(b)(1), a court must dismiss all or part of an action over which it lacks
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A plaintiff seeking federal jurisdiction has
the burden of proving that subject matter jurisdiction exists. Williams v. United States, 50 F.3d
299, 304 (4th Cir. 1995). When a defendant challenges subject matter jurisdiction, “the district

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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.” Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The
district court should grant a Rule 12(b)(1) motion to dismiss “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.; see
also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
For the same reasons that plaintiff’s proposed supplemental claims were futile, state
judicial defendants’ motion to dismiss is well taken. State judicial defendants argue that this
court lacks subject matter jurisdiction over plaintiff’s claims because plaintiff is effectively
seeking “to review and overturn the orders entered by Judge Stephens, Judge Gessner, and Judge
Hill against [him] in the underlying [s]tate civil court proceedings,” which is prohibited by the
Rooker-Feldman doctrine. (Defs.’ Mem. Supp. Mot. Dism., DE # 25, at 7-10.) As previously
noted, the Rooker-Feldman doctrine is a jurisdictional rule that prohibits federal district courts
from hearing “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 Mobil, 544 U.S. at 284. This jurisdictional
rule extends to constitutional claims that are “‘inextricably intertwined’ with the issues that were
before the state court.” Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005) (quoting
D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 486 (1983)). A federal claim is inextricably
intertwined with a state court decision where, “in order to grant the federal plaintiff the relief
sought, the federal court must determine that the [state] court judgment was erroneously entered
or must take action that would render the judgment ineffectual.” Jordahl v. Democratic Party of

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Va., 122 F.3d 192, 202 (4th Cir. 1997) (alteration in original) (citation and internal quotation
marks omitted).
Plaintiff devotes the majority of his complaint to his contention that he was denied his
constitutional right of access to the courts when the state court “alter[ed] court documents” and
entered “unauthorized judgments/orders” against him when it had no jurisdiction to do so.
(Compl., DE # 1, at 4, ¶ 1-4, 7-8, 11.) Even assuming plaintiff is correct that the state court
lacked jurisdiction when it entered these allegedly unauthorized judgments against him, federal
courts have routinely applied the Rooker-Feldman doctrine where a plaintiff complains in federal
court that the state court acted without jurisdiction. See Reguli v. Guffee, 371 F. App’x 590, 597
(6th Cir. 2010) (“Even if issued without jurisdiction, the order was still issued by a state court,
and Rooker-Feldman bars a federal court from reviewing the constitutionality of that order.”);
Doe v. Mann, 415 F.3d 1038, 1042 (9th Cir. 2005) (“Rooker-Feldman applies where the plaintiff
in federal court claims that the state court did not have jurisdiction to render a judgment.”).
Moreover, these allegations are largely focused on the validity of the rulings and decisions issued
by the state court and fail to assert an “independent claim” that would bring the case within the
court’s subject matter jurisdiction. See Exxon Mobil, 544 U.S. at 293. Because plaintiff’s
allegations are effectively a challenge to the state court’s judgments, they may not be entertained
by this court.
Plaintiff’s complaint also alleges violations of his constitutional rights to due process and
equal protection based on fraudulent acts taken by state judicial defendants, which directly
resulted in the “unauthorized judgments” that he claims caused him harm. He seeks declaratory
relief affirming his argument that state judicial defendants’ acts were “unlawful and
unconstitutional,” and injunctive relief “to ensure that the effects of the unconstitutional and

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unlawful acts and practices are eliminated.” (Compl., DE # 1, at 8.) To the extent plaintiff seeks
redress for the alleged fraudulent acts of state judicial defendants, such relief is inextricably
intertwined with the state court’s orders of dismissal because it would require the court to find
that the state court acted wrongly decided the issues before it. See Henrichs v. Valley View
Dev., 474 F.3d 609, 616 (9th Cir. 2007) (holding the Rooker-Feldman doctrine barred plaintiff’s
claim because alleged legal injuries arose from the “state court’s purportedly erroneous
judgment” and the relief he sought “would require the district court to determine that the state
court’s decision was wrong and thus void”); Sookma v. Millar, 151 F. App’x 299, 300-01 (5th
Cir. 2005) (finding that the Rooker-Feldman barred plaintiff’s claim that state judges and her
state court opponents conspired to deprive her of civil rights when she sought to enjoin
enforcement of a state divorce decree). The Rooker-Feldman doctrine prohibits this court from
assessing the conclusions of law made by the state court. Accordingly, state judicial defendants’
motion to dismiss for lack of subject matter jurisdiction must be granted.
III. CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend and supplement the complaint,
(DE # 23), is DENIED. State judicial defendants’ motion to dismiss, (DE # 24), is GRANTED,
and those defendants are DISMSSED from this action.
This 2 June 2017.

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W. Earl Britt
Senior U.S. District Judge

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