Morrison v. Holding et al
Filing
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ORDER GRANTING Motions to Dismiss by Defendants Currin, Winborne, Holding, Duffy, Burnette and West. Signed by U.S. District Judge Terrence W. Boyle on 4/3/12. (Talbert, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No.7:11-CV-168-BO
DONALD L. MORRISON,
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Plaintiff,
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GEORGE E.B. HOLDING, DAVID
CORTES, WA YNE R. MYERS,
DENNIS DUFFY, S. KATHERINE
BURNETTE, GEORGE B. CURRIN,
STEVEN WEST, VAUGHAN
WINBORNE, JR.
Defendants.
ORDER
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This matter is before the Court on three motions to dismiss filed by Defendants:
Defendant Currin's Motion to Dismiss pursuant to Rules 12(b)(I) and 12(b)(6) of the Federal
Rules of Civil Procedure [DE 12], Defendants Holding, Duffy, Burnette, and West's Motion to
Dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure [DE 15], and
Defendant Winborne's Motion to Dismiss pursuant to Rule 12(b)(6) [DE 22]. Plaintiff, has
responded, and the matters are ripe for ruling. For the reasons discussed below, each of
Defendants' motions to dismiss are granted.
BACKGROUND
Plaintiff, appearing pro se, filed this action on August 11,2011, alleging "abuse of power
in convicting the innocent Plaintiff' [DE 1]. Plaintiff s complaint in this civil action arises out
of his earlier convictions in this Court. Plaintiff was first found guilty following jury trial of
charges of conspiracy to defraud the United States; making false statements; mail fraud; use,
possession, or transfer of food stamps in an unauthorized manner; and conversion of food
stamps. United States v. Morrison, 333 Fed. App'x 741, 742 (4th Cir. 2009). After the guilty
verdict was entered, Plaintiff was conditionally released pending sentencing, but fled the
jurisdiction and failed to appear for his sentencing hearing. Plaintiff was later indicted for failing
to appear, and was found guilty following jury trial of such charge. Plaintiff's convictions were
consolidated for sentencing. Following sentencing, Plaintiff filed a direct appeal, which included
claims of prosecutorial misconduct and false allegations. The Court of Appeals found Plaintiff's
claims to be without merit and affirmed Plaintiff's convictions and sentence. Id.
The Defendants named in this action were involved in some way with Plaintiff's criminal
or related proceedings. Plaintiff's complaint alleges that his trials violated due process and that
Defendants "used their legal position to help fraud the Plaintiff of a fair trial for the purpose of
obtaining an illegal conviction" [DE·3]. Plaintiff seeks $2,000,000 and removal of his convicted
felon status as damages.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647·50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations 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). To this
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end, "the nonmoving party must set forth specific facts beyond the pleadings to show that a
genuine issue of material fact exists." Id. (citing Trentacosta v. Frontier Pacific Aircraft Indus.,
813 F.2d 1553, 1558-59 (9th Cir. 1987)). The movant's motion to dismiss should be granted if
the material jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter
of law. Id.
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Attain,
478 U.S. 265,283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Mere recitals of the elements of a cause of
action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). If the factual allegations do not nudge the plaintiffs claims "across the line from
conceivable to plausible," the "complaint must be dismissed." Twombly, 550 U.S. at 570. Courts
should be liberal in their construction of pro se complaints, but they should not go beyond
deciphering the meaning of words written in the complaint to attempt to discern the unexpressed
intent of the Plaintiff. Laber v. Harvey, 438 F.3d 404,413 (4th Cir. 2006).
Rule 12(b)(5) of the Federal Rules of Civil Procedure provides for dismissal of a
complaint for insufficient service of process. Rule 4 describes the requirements for service of
process. Fed.R.Civ.P.4. A plaintiff must either serve all defendants with process, obtain a
waiver of service of process, or provide good cause for delay within 120 days of filing a
complaint. Fed.R.Civ.P. 4(d) & (m). Process consists ofa summons and copy of the complaint.
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Fed.R.Civ.P.4(c).
I. Motions to Dismiss by Defendants Currin and Winborne
Defendants Currin and Winborne served as Plaintiffs counsel at different stages of
Plaintiffs criminal proceedings. Construing Plaintifrs complaint liberally, Plaintiff appears to
lodge claims of malpractice against his former counsel. However, a federal cause of action does
not necessarily arise from a legal malpractice claim if the alleged malpractice occurred in federal
court. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986) (holding that "the
mere presence of a federal issue in a state cause of action does not automatically confer federalquestion jurisdiction"); Custer v. Sweeney, 89 F.3d 1156, 1168 (4th Cir. 1996) (applying Merrell
Dow to ERISA malpractice claim to find that no federal cause of action existed). The Court can
find no basis for conferring federal question jurisdiction to Plaintifrs state law malpractice
claims. I 28 U.S.C. § 1331. Additionally, Plaintiff and Defendants Currin and Winborne all
appear to be residents of North Carolina, and Plaintiff has offered nothing to show that diversity
jurisdiction exists; thus the Court cannot hear Plaintiffs claim against his former counsel under
the diversity jurisdiction statue. 28 U.S.C. § 1332. As the Court lacks either federal question or
diversity jurisdiction to hear Plaintifrs malpractice claims against Defendants Currin and
Winborne, such claims must be dismissed pursuant to Rule 12(b)(1). Fed.R.Civ.P. 12(b)(I).
Additionally, even if the Court were to find a basis conferring subject matter jurisdiction
Plaintiff repeatedly makes claims of "ineffective assistance of counsel," and cites to
violations of his Sixth Amendment right. Insofar as Plaintiff is seeking to attack his conviction
or sentence based on the ineffective assistance of counsel, such a claim must have been made on
direct appeal or under 28 U.S.C. § 2255. Petitions under § 2255 may only be filed by persons
who are in custody. 28 U.S.C. § 2255(a). Plaintiff appears no longer to be in custody, and thus
his complaint could not be construed as a motion pursuant to § 2255.
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upon Plaintiffs claims against his former counsel, Plaintiffs legal malpractice claims are barred
by North Carolina's statutes of limitations and repose. Generally, an affirmative defense that a
complaint is barred by a statute oflimitations may not form the basis of Rule 12(b)(6) dismissal
unless all of the facts necessary for the defense appear on the face of the complaint. Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (2007). Notwithstanding, the Court may also consider
information in the public record when reviewing a motion to dismiss pursuant to Rule 12(b)(6).
Hall v. Virginia, 385 FJd 421,424 nJ (4th Cir. 2004) (citingPapasan, 478 U.S. 265, 268 n.1
(1986)).
North Carolina General Statute § 1-15(c) provides that a claim for malpractice is deemed
to accrue when the last act giving rise to the cause of action occurs, and that no action may be
commenced more than four years from the last act giving rise to the cause of action occurs. See
also Goodman v. Holmes & McLaurin, 192 N.C.App. 467, 473 (2008) (discussing North
Carolina's three year statute of limitations and four year statute of repose for attorney malpractice
claims).
Defendant Currin was permitted to withdraw as counsel for Plaintiff in November 2006
[No. 5:06-CR-92, DE 33]. Any such claim arising out of Defendant Currin's actions as counsel
for Plaintiff would be barred by the four year statute of repose. Even assuming that Defendant
Currin's conduct as stand-by counsel for Plaintiff would be actionable, the last date of Defendant
Currin's relationship with Plaintiff was December 2007 - more than three years before Plaintiff
filed the instant action and thus barred by the applicable statute of limitations [No. 5:06-CR-92,
DE 124; No. 5:01-CR-276, DE 203].
Plaintiffs legal malpractice claim against Defendant Winborne is similarly barred by
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both the applicable statute oflimitations and repose. Defendant Winborne was permitted to
withdraw his representation of Plaintiff on January 25, 2006, more than four years before the
commencement of the instant action [No. 5:01-CR-276, DE 139]. Accordingly, Plaintiffs
claims for legal malpractice against Defendants Currin and Winborne are barred by the statutes
of limitations and repose and must therefore be dismissed pursuant to Rule 12(b)(6).
II. Defendants Holding, Duffy, Burnette, West's Motion to Dismiss
Defendants Holding, Duffy, Burnette, and West file a limited appearance to contest
personal jurisdiction over them in this matter. Plaintiffs complaint alleges claims of
prosecutorial misconduct and constitutional violations against Defendants Holding, Duffy,
Burnette, and West. Each of these defendants is a current or former member of the United States
Attorney's Office for the Eastern District of North Carolina. Because Plaintiffs claims the
federal defendants are for money damages based on alleged unconstitutional conduct, such
claims are properly construed within the scope of Bivens. Bivens v. Six Unknown Names Agents
o/Fed. Bureau o/Narcotics, 403 U.S. 388 (1971). Any remedy in a Bivens action is against a
federal official in his individual capacity. Randall v. United States, 95 F.3d 339, 345 (4th Cir.
1996). In order for the Court to exercise personal jurisdiction over Defendants Holding, Duffy,
Burnette, and West, the requirements of service of process must be satisfied. Murphy Bros., Inc.
v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999).
Rule 4(e) of the Federal Rules of Civil Procedure governs service on an individual and
provides that a plaintiff may follow state laws for service of the state in which the district court is
located in order to effect service. F.R.Civ.P.4(e)(I). Under North Carolina law, a plaintiff may
serve a defendant by using certified mail, return receipt requested, and may deliver the
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documents to a defendant's place of employment. N.C. Gen.Stat. § lA-I, Rule 4G)(1)(c); Moore
v. Cox, 341 F. Supp.2d 570, 573 (M.D.N.C. 2004). Service in the following manner is deemed
complete on the day the summons and complaint are delivered, unless the defendant appears in
the action to challenge service. Moore, 341 F. Supp.2d at 573. Ifa defendant appears to contest
service, the plaintiff must file an affidavit that proves service on defendant has been perfected.
Id. (citing N.C. Gen.Stat. § 1-75.10). Such an affidavit raises a rebuttable presumption that valid
service has been made on the defendant. Id.
The summons submitted for issuance by Plaintiff indicate service on Defendants Holding,
Duffy, Burnette, and West at the Federal Building, 8th Floor, 310 New Bern Avenue, Raleigh,
NC. Plaintiff filed returns of service as to the above-named Defendants on September 28, 2011,
with copies of certified mail return receipts that show that Sherry Gammon signed the return
receipt for each of the above-named Defendants. Although Plaintiff has filed returns of service,
the Court notes that Plaintiff has not filed an affidavit of service with regard to any of the named
Defendants in this action as required to raise a presumption of service under N.C. Gen.Stat. § 1
75.10. Additionally, although a return receipt signed by a person other than the addressee is
presumed in North Carolina to have been signed by an agent of the addressee authorized to
accept service, N.C. Gen.Stat. § lA-I, Rule 4(2)(2), such presumption is rebuttable by "the
affidavits of more than one person showing unequivocally that proper service was not made upon
the person of the defendant." Grimsley v. Nelson, 342 N.C. 542,545 (1996).
Defendants Holding, Duffy, Burnette, and West have each submitted affidavits 2 stating
2The Court notes that it may properly consider the affidavits submitted in support of
Defendants' Rule I2(b)(5) motion without converting it to a summary judgment motion because
"[c]onverting a motion to dismiss into a motion for summary judgment, of course, applies only to
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that they have not been personally served in this matter, that they have not authorized anyone to
be an agent for purposes of service of process, and that they are not aware of any Department of
Justice regulation or policy that appoints or authorizes a U.S. Attorney's Office mail collection
employee to serve as an authorized agent for its employees. In addition, Defendants have
submitted the affidavits of Bret Lopes and Sherry Gamon which state that neither has been
authorized to accept service for any employee of the U.S. Attorney's Office, that a stamp with
Sherry Gammon's name has been given to the Court Security Officers so that certified mail may
be received at the Terry Sanford Federal Building, and that none of the return receipts indicate
that the items delivered were selected for restricted delivery. Accordingly, the Court finds that
Defendants Holding, DuffY, Burnette, and West have rebutted the presumption of personal
service as provided by North Carolina law and the Federal Rules of Civil Procedure. 3
The rules regarding methods of service in order to obtain personal jurisdiction over a
defendant "must be strictly enforced to insure that a defendant will receive actual notice of a
claim against him." Grimsley, 342 N.C. at 545. The failure to obtain proper service on a
defendant serves to deprive the court of personal jurisdiction over that defendant. Koehler v.
Dodwell, 152 F.3d 304, 306 (4th Cir. 1998). Because the Court finds that Plaintiff has failed to
properly serve Defendants Holding, DuffY, Burnette, and West, dismissal of these defendants
a motion made pursuant to Rule 12(b)(6)." Wilson-Cook Med, Inc. v. Wilson, 942 F.2d 247,252
(4th Cir. 1991).
3Rule 4(i)(4)(B) provides that "[t]he court must allow a party reasonable time to cure its
failure to serve the United States under Rule 4(i)(3), if the party has served the United States
officer or employee." Fed.R.Civ.P. 4(i)(4)(B) (emphasis added). Because Plaintiff has failed to
effect service of process on federal defendants Holding, DuffY, Burnette, and West, the Court
need not permit Plaintiff additional time to cure his failure to serve the United States under this
provision.
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under Rule 12(b)(5) of the Federal Rules of Civil Procedure is appropriate.
CONCLUSION
Accordingly, for the reasons discussed above, the Motions to Dismiss by Defendants
Currin and Winborne are GRANTED and the Motion to Dismiss by Defendants Holding, Duffy,
Burnette, and West is also GRANTED.
SO ORDERED, this
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day of April, 2012.
UNITED STATES DISTRICT JUDGE
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