HARR v. BRODHEAD et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 5 Motion to Dismiss filed by DAVID F. LEVI, DUKE UNIVERSITY, RICHARD H. BRODHEAD and 17 Motion for Hearing filed by SIDNEY B. HARR. IT IS ORDERED that Defendants' Motion to Dismiss (Doc. 5 ) is GRANTED and that this action be DISMISSED. IT IS FURTHER ORDERED that Plaintiff's Motion to Have Defendants' Motion to Dismiss Heard in Open Court (Doc. 17 ) is DISMISSED for lack of good cause. A Judgment dismissing this action will be entered contemporaneously with this Order. Signed by JUDGE THOMAS D. SCHROEDER on 3/5/2012. (Solomon, Dianne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SIDNEY B. HARR,
Plaintiff,
v.
RICHARD H. BRODHEAD,
DAVID F. LEVI, and DUKE
UNIVERSITY,
Defendants.

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1:11CV263

ORDER
This case arises from Plaintiff’s attendance at a conference
hosted by, and held at, the Duke University Law School from
April 8-10, 2010, and Plaintiff’s subsequent attendance at an
interview of United States Supreme Court Justice Stephen Breyer on
April 14, 2010, also held at the law school.

Plaintiff’s pro se

complaint alleges that his “First Amendment Rights to Freedom of
Speech and Expression were violated by Defendants” and claims a
violation of 28 U.S.C. § 1343 as a result of his having been asked
to leave the Duke University campus following the April 14 event.
(Doc. 1.)
On November 25, 2011, the United States Magistrate Judge
issued his Recommendation in accordance with 28 U.S.C. § 636(b) and
served a copy on the parties in this action.

The Magistrate Judge

recommends dismissal of the action. (Doc. 12.) Plaintiff objected
to the Recommendation (Doc. 15), and Defendants filed a response
(Doc. 16). Plaintiff has since filed a “Motion to Have Defendants’

Motion to Dismiss Heard in Open Court” in which he rehashes his
arguments.

(Doc. 17.)

Defendants responded to that motion (Doc.

18), and Plaintiff filed a reply (Doc. 19).
In his 34 pages of objections, much of which is a diatribe on
Plaintiff’s perception that former state prosecutor Michael Nifong
(who was disbarred for prosecutorial misconduct in connection with
his prosecution of alleged crimes by certain members of the Duke
University lacrosse team who were later declared innocent of all
charges by the North Carolina Attorney General) was mistreated by
the media and others, Plaintiff takes the extraordinary tact of
repeatedly maligning the motivations and personal integrity of the
United States Magistrate Judge and thus this court.

Among the

charges Plaintiff levies about the Magistrate Judge are that he is
“lying to th[is] Court in his recommendation” (Doc. 15 at 1),
engaged in “flagrantly unethical, egregious and biased professional
misconduct in favoring Defendants” (id.), “attempts to mislead the
Court”

(id.

at

3),

engaged

in

“nothing

more

than

purposeful

fabrication” (id.), “offer[ed] up some esoteric legalese mumbojumbo to support his decision” (id. at 5), “blatantly lied . . .
with the intent to mislead the Court for the purpose of gaining
from the Court a favorable decision for Defendants” (id. at 22),
“tried to concoct a reason [to support his conclusion]” (id.),
“indulged in making misleading and unsubstantiated pronouncements”
(id.), uttered “lies [that are] neither innocent nor misstatements,
2

but rather calculated to deceive and mislead the Court” (id.),
“prevaricated and misled the Court in his recommendation . . .
performing more like an attorney for the Ellis & Winters law firm
in Greensboro, North Carolina, which is representing Defendants”
(id. at 27), “lie[d] on behalf of Defendants in order to mislead
the Court in an attempt to get a ruling in favor of the powerful
Defendants” (id.),

and chose to “purposely lie to the Court about

facts of the case, in an attempt to mislead the Court to rule in
favor of one of the parties, [which is] the most severe manner of
misconduct” (id. at 33).

Plaintiff asks that the court “place

appropriate sanctions against [the Magistrate Judge] for lying to
the Court in an attempt to mislead it in favor of Defendants.”
(Id. at 34.)
Plaintiff

is

a

self-styled

advocate

reinstatement to the North Carolina State Bar.

of

Mr.

Nifong’s

The substance of

Plaintiff’s objections is that he claims that the Magistrate Judge
misstated the facts; namely, he contends that the Magistrate Judge
incorrectly stated that Plaintiff was handing out his business
cards after the interview with Justice Breyer rather than before,
as Plaintiff claims. (Doc. 12 at 2; Doc. 15 at 2.)

Plaintiff

appears to believe this is important because he alleges that while
he was ostensibly asked to leave the Duke campus by a security
guard because of his alleged solicitation (handing out business

3

cards), the real reason was because of his political beliefs.
(Doc. 15 at 26.)
Because Plaintiff has filed objections, the court is obliged
to conduct a de novo review of those portions of the Recommendation
to which objections are made.
P. 72(b).
dismiss.

28 U.S.C. § 636(b)(1); Fed. R. Civ.

The case is before the court on Defendants’ motion to
(Doc. 5.)

Accordingly, the court takes the allegations

of the complaint in the light most favorable to Plaintiff as the
non-moving party.

However, while the court construes the pro se

complaint liberally, it is not required “to conjure up questions
never squarely presented.”

Beaudett v. City of Hampton, 775 F.2d

1274, 1278 (4th Cir. 1985).

Accordingly, the question is whether

the complaint contains sufficient facts which, if accepted as true,
state a claim that is “‘plausible on its face.’”
Iqbal, 556 U.S. 662,

Ashcroft v.

, 129 S.Ct. 1937, 1949 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The complaint alleges that Plaintiff created the “Committee on
Justice for Mike Nifong” and screen-printed 50 t-shirts and created
business cards with the entity’s logo (“j4n” in the center of a
magenta disk with the label “Committee on Justice for Mike Nifong”
and the entity’s website address).

(Doc. 1 at 3.)

Plaintiff also

wore his Nifong t-shirt “whenever he went on the campuses of Duke
University.” (Id. at 4.) Consequently, Plaintiff wore his t-shirt
throughout the Duke conference April 8-10, 2010, and returned
4

wearing it during the Justice Breyer interview April 14,2010. (Id.
at 4-5.)

Plaintiff alleges he handed out his Nifong-related

“business cards” during both events. (Id.) Plaintiff also alleges
he handed out his business card to an Associated Press reporter
immediately after the interview.

(Id. at 6 ¶ 18.)

Thus, these

facts are consistent with those relied upon by the Magistrate
Judge.
Notwithstanding, whether Plaintiff engaged in his solicitation
before, during, and/or even after the event does not affect the
legal analysis of Plaintiff’s claims.

What Plaintiff overlooks is

that Duke University is a private institution, and thus Plaintiff
was at all times on private property when the alleged events took
place.

See McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 942-43

(M.D.N.C. 2011).

A claim under 42 U.S.C. § 1983 requires that the

Defendant act “under color of state law.”

Id. at 942.

Whatever

Duke may have done or not done, it is clear that Plaintiff has not
alleged facts sufficient to suggest that the actions of Duke, a
private institution, should be treated as actions of the state.
See id.
tort.

And Plaintiff cannot assert a § 1983 claim for a private
Carrington v. Duke Univ., No. 1:08CV119, slip op. at 124

(M.D.N.C. Mar. 31, 2011).

Because the complaint fails to allege a

constitutional

by

liability

violation

against

Duke;

any

Richard

5

Defendant,
Brodhead,

there
the

can

be

no

university’s

president; or David Levi, the Duke University Law School’s dean,
simply because Plaintiff may think he has a claim against some
other

employee

of

Duke.1

This

is

known

as

the

doctrine

of

respondeat superior, and there is no liability under § 1983 based
on it.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

There is also no allegation of misconduct by any individually named
Defendant.

Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985)

(noting that for an individual to be liable under § 1983, it must
be shown affirmatively that the official acted personally in the
deprivation of the plaintiff’s rights). Finally, Plaintiff has not
made out a claim for conspiracy under 42 U.S.C. § 1985, because his
complaint makes clear that the basis for his claim is political
animus, which Plaintiff confirms in his objections. (Doc. 15 at 26
(noting that “Plaintiff was selectively asked by the security guard
to leave the Duke University grounds solely because of his beliefs,
thoughts, and opinions; which were supportive of Mike Nifong and
contrary to Duke University’s position”).)

Johnson v. Hettleman,

812 F.2d 1401, 1987 WL 35867, at *1 (4th Cir. 1987) (unpublished
table decision).2

1

The potential liability of any other employee is not before the court,
and the court “express[es] no views as to that question.” Powell v.
ShopCo Laurel Co., 678 F.2d 504, 505 n.3 (4th Cir. 1982).

2

Even if the court were to credit statements in Plaintiff’s objections,
it is clear that any claim or racial animus, alluded to there for the
first time, e.g., Doc. 15 at 25 26 (“Plaintiff, who is African American,
is not sure that racial prejudice did not play an additive role along

6

In sum, the court has appropriately reviewed the portions of
the Magistrate Judge’s report to which objection was made and has
made

a

de

Magistrate

novo

determination,

Judge’s

report.

which

The

is

court

in

accord

therefore

with

the

adopts

the

Magistrate Judge’s Recommendation.
This leaves the issue of Plaintiff’s gratuitous and vile
invective directed at this court.
unnecessary

for,

as

explained

Such comments were totally

above,

the

factual

distinction

Plaintiff pressed was wholly irrelevant to the legal issues raised
by the motion to dismiss his complaint.3

Neither the liberal

pleading rules nor generous pro se practices of the courts has
eliminated “the time honored notion that the law and the courts of
the United States are important parts of American society worthy of
respect.”

Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978)

(dismissing an appeal with prejudice because the pro se appellant’s
notice of appeal contained “vile and insulting references to the
trial judge”).

Plaintiff’s pro se status is not an excuse to

with the media spawned anti Nifong prejudice.”), are merely conclusory
and are insufficient to state a claim. Simmons v. Poe, 47 F.3d 1370,
1377 (4th Cir. 1995) (noting that the court has specifically rejected
§ 1985 claims “whenever the purported conspiracy is alleged in a merely
conclusory manner, in the absence of concrete supporting facts”).
3

Plaintiff also complains about the fact that Defendants, the moving
parties here, are permitted to get the “last word” with a reply brief.
(Doc. 15 at 32.) This is the long standing orderly rule of this court
(Local Rule 7.3), and all litigants, those represented by counsel and
those proceeding pro se, are required to consult the local rules before
filing any material.

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engage in abusive conduct, and Plaintiff is warned against further
personal attacks on the Magistrate Judge or any judicial officer of
the federal courts.

See id; 18 U.S.C. § 401(1) (providing power to

punish misbehavior by fine or imprisonment, or both).

The court

will

its full

not

hesitate

in

appropriate

cases to exercise

contempt and other powers in order to protect the dignity of the
nation’s judicial system as a forum for the thoughtful resolution
of legitimate grievances.

Plaintiff is admonished to conduct

himself accordingly.
For the above reasons, therefore,
IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 5) is
GRANTED and that this action be DISMISSED.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

Motion

to

Have

Defendants’ Motion to Dismiss Heard in Open Court (Doc. 17) is
DISMISSED for lack of good cause.

A Judgment dismissing this

action will be entered contemporaneously with this Order.

/s/ Thomas D. Schroeder
United States District Judge
March 5, 2012

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