Loney, et al v. State of North Carolina, et al

Filing 22

ORDER - The court ADOPTS in full the recommendation and analysis in the M&R, 17 , and the case is DISMISSED. The clerk is DIRECTED to STRIKE plaintiffs filings at DE 18 and DE 20 , return same to plaintiffs via U.S. mail, and close this case. Signed by District Judge Louise Wood Flanagan on 10/26/2017. (A certified copy of this Order was sent via US mail to Joyce and Harold Loney, c/o 4956 Longe Beach Rd. SE, STE 14 PMB 362, Southport, NC 28461) (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:17-CV-38-FL

JOYCE LONEY and HAROLD LONEY,
Plaintiffs,
v.
STATE OF NORTH CAROLINA; USAA
FEDERAL SAVINGS BANK; STUART
PARKER; MARK SCHRON; JANIS
REEDER; BROOKS PIERCE LAW
FIRM; REID PHILLIPS; MATTHEW
TYNAN; EDWIN WEST; MIDDLE
DISTRICT COURT; JOE WEBSTER;
CATHERINE EAGLES; STEPHINE
HUBRICKHOUSE; BRUNSWICK
COUNTY SUPERIOR COURT; JERRY
JOLLY; JAMES MACMALLIUM;
DAVIDSON COUNTY SUPERIOR
COURT; DAVIDSON COUNTY;
MARKEY E. KLASS; BRIAN
SHIPWASH; JOHN BRUBAKER;
AMERICAN ARBITRATION
ASSOCIATION; JAMES F. PETELLE;
ASSOCIATES ASSET RECOVERY;
TAMMY REASON; JONATHAN
REICH; PATRICK SPRAUGH; and
WOMBLE, CARLYLE, SANDRIDGE &
RICE,
Defendants.

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ORDER

This matter is before this court upon frivolity review of plaintiffs’ complaint pursuant to 28
U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 631(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge Robert B. Jones entered a memorandum and recommendation

(“M&R”) wherein it is recommended that the court dismiss the case. (DE 17). Plaintiffs timely
objected to the M&R, (DE 19), and defendants made no response.1 In this posture, the issues
presented are ripe for ruling. For the reasons that follow, the court adopts the recommendation and
analysis in the M&R and dismisses plaintiffs’ case. The court writes separately to address plaintiffs’
objection that proceedings before the magistrate judge are void under law.
BACKGROUND
The court incorporates, in part, section II of the M&R where incorporated portions accurately
describe the case background.
Plaintiffs assert multiple counts of “trespass on the case” against numerous
defendants. Compl. [DE-1-1]. Plaintiffs allege that Defendants acted without
jurisdiction to deprive Plaintiffs of their civil rights, specifically that
[e]ach counter-defendant exceeded its jurisdiction under color of law
by either directly or through an agent, or in concert with another, in an
attempt to unlawfully and forcefully commit an act for the purpose of
retaliating against counterclaimants for daring to enforce claimants’
natural and constitutional rights without jurisdiction or good cause.
These acts occurred without jurisdiction under color of law in direct
violation of 18 USC 241, Conspiracy against rights, and 18 USC 242,
deprivation of rights under color of law. Defendants worked in unison
to hinder the due process of law and to commit a fraud upon the court
for the purpose of said vindictive prosecution of claimants Loney
under color of law infringing on claimant’s rights.
Id. at 2-3 ¶ 2. While Plaintiffs’ allegations are difficult to decipher, they relate
primarily to a vehicle loan Plaintiffs obtained from Defendant [USAA Federal
Savings Bank (“USAA”)]. Id. at 8-9 ¶ 33. Plaintiffs contend that USAA would not
provide them with a copy of the loan and increased the interest rate without
Plaintiffs’ agreement or any written notifications. Id. Plaintiffs allege that USAA
began calling them multiple times per day in November of 2014, despite the fact that
Plaintiffs revoked permission for USAA to contact them by telephone. Id. at 10 ¶ 35.

1

Plaintiffs also lodged on the docket a document styled as “order to the clerk of court to
perform specific duties[,]” (DE 18) and another document styled as a “writ of contempt[.]” (DE
20). These filings are frivolous where they sound as no filing authorized by the Federal Rules of
Civil Procedure, the Local Civil Rules, or any other provision of law. Accordingly the clerk is
DIRECTED to STRIKE said filings from the docket and return same to plaintiffs by U.S. mail.

Then in June 2015, Defendant AAR attempted to repossess the vehicles secured by
the loan with USAA, and in the process, breached the peace by yelling and
threatening Plaintiffs, cutting a locked farm gate, and spilling hydraulic fluid on
Plaintiffs’ property. Id. at 12 ¶¶ 42-43. Plaintiffs filed suit in February 2015 against
USAA in state court, alleging violations of several federal consumer protection
statutes. Id. at 10 ¶ 36. USAA removed the case to federal court, and requested that
the case be stayed pending arbitration. Id. at 10 ¶¶ 36-37. In October 2015, USAA
was granted an arbitration award of $87,626.58 against Plaintiffs, which Plaintiffs
tried to appeal. Id. at 13 ¶¶ 47-48. Plaintiffs then filed for bankruptcy. Id. at 13 ¶ 49.
Plaintiffs seek monetary damages, including treble damages, declaratory
relief, and permanent injunctive relief. Id. at 14-17. Specifically, Plaintiffs seek
dismissal of [Loney v. USAA Fed. Sav. Bank, No. 1:15-CV-292, 2016 WL 3822518,
at *1 (M.D.N.C. July 13, 2016)] for lack of jurisdiction, dismissal of the bankruptcy
case, and that the court “release judgment award” and “enter judgment vacating all
orders and motions brought before the inferior court of no record.” Id. Additionally,
Plaintiffs seek an order from the court determining “that all orders submitted by the
[Magistrate Judge] Webster, [J]udge Jolly, [J]udge Klass and [J]udge Eagles are
hereby void and invalid . . . “ [DE-10] at 18 ¶ 98.
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
& Accident 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).
Under 28 U.S.C. § 1915(e)(2), the court may dismiss an action that is frivolous or malicious, fails
to state a claim on which relief may be granted, or seeks monetary relief against a defendant who

is immune from such relief.
A complaint may be found frivolous if it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Additionally, a complaint fails to state a claim if
it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face,” sufficient to “allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). In evaluating whether a claim has been stated, “[the] court accepts all
well-pled facts as true and construes those facts in the light most favorable to the plaintiff,” but does
not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further
factual enhancement [,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations
omitted).
B.

Analysis
Plaintiff’s sole objection to the M&R is that the magistrate judge lacked jurisdiction to hear

any aspect of plaintiff’s case. However, this argument is foreclosed by United States v. Raddatz,
in which the Supreme Court held that the rules under which district courts may “designate a
magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of any dispositive motion,]” 28 U.S.C. § 636, are indeed
constitutional. 447 U.S. 667, 681–82 (1980). Therefore, where the magistrate judge acted within
the scope of authorization under 28 U.S.C. § 636, plaintiffs’ argument that the magistrate judge
lacked jurisdiction to issue the M&R or otherwise hear any aspect plaintiffs’ case is without merit.
See Raddatz, 447 U.S. at 681–82.
The remaining portions of plaintiffs’ objections are non-responsive to the factual and legal

determinations set forth in the M&R. Specifically, where plaintiffs refer to themselves as “the
court,” purport to issue orders to the magistrate judge, and, indeed, purport to hold the magistrate
judge in contempt of court, (see DE 19 ¶¶ 69–78), it is evident that plaintiffs are attempting to
advance arguments grounded in “sovereign citizen” theories rejected as frivolous by the Fourth
Circuit and other courts. See United States v. Stone, 866 F.3d 219, 223 n.1 (4th Cir. 2017) (citing
El v. AmeriCredit Financial Servs., Inc., 710 F.3d 748, 750 (7th Cir. 2013) (describing the
“sovereign citizens movement”). In this manner, plaintiffs advance no substantive objection to the
magistrate judge’s determination that this court cannot, as plaintiffs request, vacate or alter decisions
rendered by other district courts or award damages premised upon such orders. See 28 U.S.C. §
1291 (“The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the
district courts of the United States, . . . except where a direct review may be had in the Supreme
Court.”) (emphasis added); Celotex Corp. v. Edwards, 514 U.S. 300, 313 (1995) (“[I]t is for the
court of first instance to determine the question of the validity of the law, and until its decision is
reversed for error by orderly review, either by itself or by a higher court, its orders based on its
decision are to be respected.”) (emphasis added). Accordingly, plaintiffs’ objections fail to “direct
the court to a specific error in the magistrate’s proposed findings and recommendations[,]” see
Orpiano v. Johnson, 687 F.2d at 47, and upon careful review of the record, the court finds no clear
error in the M&R. See Diamond, 416 F.3d at 315. Therefore, plaintiffs’ case is dismissed.
CONCLUSION
For the foregoing reasons, the court ADOPTS in full the recommendation and analysis in the
M&R, (DE 17), and the case is DISMISSED. The clerk is DIRECTED to STRIKE plaintiffs’ filings
at DE 18 and DE 20, return same to plaintiffs via U.S. mail, and close this case.

SO ORDERED, this the 26th day of October, 2017.

_____________________________
LOUISE W. FLANAGAN
United States District Judge