Thrash v. N.C. DHHS - Medicaid Assistance et al

Filing 43

ORDER denying 24 Motion to Appoint Counsel ; denying 25 Motion for Summary Judgment; adopting 39 Memorandum and Recommendations; denying 18 Motion to Dismiss for Lack of Prosecution; and, granting 18 Motion for Judgment on the Pleadings. Signed by Chief Judge Louise Wood Flanagan on 09/07/2011. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:10-CV-243-FL
MICHAEL E. THRASH,
Plaintiff,
v.
DARE COUNTY AIRPORT
AUTHORITY,
Defendant.

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ORDER

This matter comes before the court on defendant’s motion to dismiss or, in the alternative,
for judgment on the pleadings (DE # 18). Also before the court is plaintiff’s motion to appoint
counsel (DE # 24) and motion for summary judgment (DE # 25). These motions were fully briefed
and then referred to United States Magistrate Judge William A. Webb for review and entry of a
memorandum and recommendation (“M&R”), pursuant to 28 U.S.C. § 636(b)(1). The magistrate
judge recommended that plaintiff’s motion to appoint counsel and motion for summary judgment
be denied, and that defendant’s motion in the alternative for judgment on the pleadings be granted.
Plaintiff objects. In this posture, the issues raised are ripe for review. For the reasons that follow,
the findings and recommendations of the magistrate judge are ADOPTED in full.
BACKGROUND
Plaintiff, an inmate in the custody of the North Carolina Department of Corrections, filed his
pro se complaint on December 6, 2010, alleging that his property was illegally sold without his
consent through a conspiracy in violation of 42 U.S.C. § 1983. The complaint named as defendants
the North Carolina Department of Health and Human Services Division of Medicaid Assistance

(“NCDHHS”), Ella Simmons (“Simmons”), James Gilreath (“Gilreath”), David Farrow (“Farrow”),
and the Dare County Airport Authority (“the Airport”). The court conducted its frivolity review on
February 28, 2011, and found plaintiff’s complaint frivolous as to all defendants except the Airport,
and accordingly permitted plaintiff to proceed only as to the Airport (“defendant”).
On April 19, 2011, defendant filed motion to dismiss, or in the alternative for judgment on
the pleadings. On May 31, 2011, plaintiff filed motion to appoint counsel and also motion for
summary judgment. When the issues were fully briefed, the court referred the motions to the
magistrate judge for review.
The magistrate judge issued his M&R on July 25, 2011. Plaintiff filed objection on
August 4, 2011, to which defendant responded on August 17, 2011. On August 29, 2011, plaintiff
filed a document styled as a motion, which the court construes as a reply.
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)(c).

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B.

Analysis
The magistrate judge recommended that plaintiff’s motions to appoint counsel and for

summary judgment be denied, and that defendant’s motion to dismiss be denied but that defendant’s
motion in the alternative for judgment on the pleadings be granted.
First, applying the framework set forth by the Fourth Circuit, the magistrate judge concluded
that plaintiff is not entitled to appointment of counsel because the action is not unusually complex,
because plaintiff has demonstrated his capability of proceeding pro se, and because the action does
not otherwise present exceptional circumstances that would justify appointment of counsel. See
Whisenant v. Yaum, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v.
U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989); see also Cook v. Bounds, 518 F.2d
779, 780 (4th Cir. 1975). For these reasons, the magistrate judge recommended that plaintiff’s
motion to appoint counsel be denied.
As to plaintiff’s motion for summary judgment, the magistrate judge determined that plaintiff
had failed to carry his burden to demonstrate the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The
magistrate judge examined several exhibits attached to defendant’s answer and concluded that
because the exhibits directly refute plaintiff’s allegations, plaintiff had not demonstrated that there
was no genuine issue of material fact. Accordingly, the magistrate judge recommended that
plaintiff’s motion for summary judgment be denied.
The magistrate judge next examined defendant’s motion to dismiss or in the alternative for
judgment on the pleadings. Defendant contends that it is entitled to dismissal pursuant to Rule

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12(b)(1) for lack of subject matter jurisdiction. Defendant argues for application of the RookerFeldman doctrine, which precludes a party who has lost in state court from seeking what in
substance would be appellate review of a state court judgment in a United States district court. See
Willner v. Frey, 243 Fed. App’x 774, 745-46 (4th Cir. 2007). Applying the framework set forth by
the Supreme Court in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005),
the magistrate judge concluded that the Rooker-Feldman doctrine does not apply to this action
because plaintiff asserts constitutional violations that are independent of the injury caused by the
state court judgment. For this reason, the magistrate judge recommended that defendant’s motion
pursuant to Rule 12(b)(1) be denied.
Finally, the magistrate judge examined defendant’s alternative motion for judgment on the
pleadings pursuant to Rule 12(c). The magistrate first laid out the standard of review for such a
motion, which is the same standard as for a motion to dismiss made pursuant to Rule 12(b)(6).
Burbach Broad Co. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). To survive a motion
to dismiss, a plaintiff must “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The facts alleged must
“raise a right to relief above the speculative level,” and the complaint must contain “enough facts
to state a claim to relief that is plausible on its face.” Id. at 555, 570. “A complaint has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). A complaint may survive a motion to dismiss only if it “states a plausible claim for
relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon
“its judicial experience and common sense.” Id. at 1950.

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With this standard of review in mind, the magistrate judge examined the pleadings and the
parties’ arguments The magistrate judge observed that the complaint does not set forth any
information regarding the conspiracy by which defendant is alleged to have stolen plaintiff’s
property. Further, the magistrate judge observed that the allegations of the complaint are directly
contrary to the pleadings and exhibits of record. For these reasons, and for others set forth more
particularly and in great detail in the M&R, the magistrate judge concluded that the facts alleged
in the complaint do not raise a right to relief above the speculative level, and that plaintiff had not
stated a claim to relief that is plausible on its face. Twombly, 550 U.S. at 555, 570. On this basis,
the magistrate judge recommended that defendant’s alternative motion for judgment on the pleadings
pursuant to Rule 12(c) be granted.
Plaintiff objected to the M&R, noting in the document heading that plaintiff objected to “[the
magistrate judge’s] denial of plaintiff’s motion for appointment of counsel and granting of
defendant’s motion for judgment on the pleadings.” Plaintiff does not, however, direct the court to
any specific error committed by the magistrate judge. Rather, plaintiff’s objection merely reiterates
his “extreme need” for counsel as he has “no advocate” to prosecute this action on his behalf. As
an example of his “extreme need” for counsel’s assistance, plaintiff points to the magistrate judge’s
recommendation that defendant’s motion for judgment on the pleadings be granted. Plaintiff’s
objection does not assign specific error to the magistrate judge’s recommendation, and therefore is
merely general and conclusory in nature.
The court construes plaintiff’s entitled “motion in response to [defendant’s] response to
plaintiff’s objection” as a reply to defendant’s response to plaintiff’s objection to the M&R. In his
reply, plaintiff asserts that he intended for his objection to address the recommended grant of

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judgment on the pleadings in addition to the recommended denial of appointment of counsel.
Plaintiff states that he “thought ‘without question’ that he also objected to the [magistrate judge’s]
‘motion for judgment on the pleadings,’” and that “plaintiff made a laymans ‘best effort attempt’
to fully, and convincingly object to both aforementioned issues.” Plaintiff nevertheless still fails to
assign specific error to any part of the magistrate judge’s recommendation.
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,” the court does not
perform a de novo review. Orpiano, 687 F.2d at 47. Rather, absent a specific and timely filed
objection, the court reviews only for clear error. Diamond, 416 F.3d at 315. As explained above,
plaintiff’s objection and reply constitute merely general and conclusory objections which do not
assign specific error to the magistrate judge’s recommendation. Accordingly, the magistrate judge’s
findings and recommendations are reviewed only for clear error.
Where the magistrate judge’s M&R appears to be a proper application of binding Fourth
Circuit and Supreme Court case law, and where the court’s own review of the pleadings, case law,
and motions and arguments raised therein confirm the validity of the magistrate judge’s findings and
recommendations, the court cannot say that the magistrate judge has erred in his analysis.
Accordingly, and without specific objection from the parties, the court adopts the M&R in full.
CONCLUSION
Upon a careful and considered review of the M&R, to which only a general and conclusory
objection has been made, the court ADOPTS the findings and recommendations of the magistrate
judge in full. Accordingly, plaintiff’s motion to appoint counsel (DE # 24) is DENIED and
plaintiff’s motion for summary judgment (DE # 25) is DENIED. Defendant’s motion to dismiss

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(DE # 18) is DENIED, but defendant’s alternative motion for judgment on the pleadings (DE # 18)
is GRANTED. The Clerk of Court is DIRECTED to close this case.
SO ORDERED, this the 7th day of September, 2011.

_____________________________
LOUISE W. FLANAGAN
Chief United States District Judge

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