PETTY, et al v. CROSSWHITE, et al

Filing 27

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 2/28/2013, RECOMMENDING that Defendants' motion to dismiss based on the Rooker-Feldman doctrine (Docket Entries 11 , 18 ) be GRANTED. Should the court adopt this Recommendation, it is further RECOMMENDED that Plaintiffs' motion for summary judgment (Docket Entry 22 ) be DISMISSED as moot. (Lloyd, Donna)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GEORGE L. PETTY and STEVEN
L. PETTY,
Plaintiffs,
v.
JOSEPH N. CROSSWHITE,
THEODORE S. ROYSTER, DONNA
S. STROUD, MARTHA A. GEER,
CRESSIE H. THIGPEN, JR.,
BARBARA JACKSON and CITY OF
KANNAPOLIS,
Defendants.

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1:12CV162

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on separate motions to dismiss by Defendants Joseph
N. Crosswhite, Theodore S. Royster, Donna S. Stroud, Martha A. Geer, Cressie H. Thigpen,
Jr. and Barbara Jackson (“State Court Defendants”) (Docket Entry 11) and Defendant City
of Kannapolis (“City”). (Docket Entry 18.) Pro se Plainitffs George L. Petty and Stephen L.
Petty have responded to the motions. Also before the court is Plaintiffs’ motion for
summary judgment as to State Court Defendants. (Docket Entry 22.) All Defendants have
responded to this motion, and all motions are thus ripe for disposition. For the reasons that
follow, Defendants’ motions should be granted, Plaintiff’s motion should be denied, and the
action should be dismissed for lack of subject-matter jurisdiction.

I. PROCEDURAL BACKGROUND
On February 16, 2012, Plaintiffs George L. Petty and Steven L. Petty commenced
this action by filing a pro se complaint in this court against Defendants, alleging violations of
certain protections guaranteed to them by the Fifth and Fourteenth Amendments to the
United States Constitution in connection with a state court proceeding related to an
easement on Plaintiffs’ property. (Docket Entry 1.) Plaintiffs filed an amended complaint
on March 27, 2012. (Docket Entry 9.) On April 17, 2012, the State Court Defendants filed
a motion to dismiss for lack of jurisdiction and failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)1) and 12(b)(6). (Docket Entry 11.) On May 10, 2012, Defendant City filed a
motion to dismiss the amended complaint. (Docket Entry 18.) Plaintiffs filed responses to
the motions to dismiss on May 4, 2012 and May 29, 2012. (Docket Entry 17, Docket Entry
21.) Plaintiffs filed their motion for summary judgment as to the State Court Defendants on
May 30, 2012. (Docket Entry 22.) The State Court Defendants responded to the summary
judgment motion on June 15, 2012 and Defendant City filed a response on June 19, 2012, in
which it joined the response by the State Court Defendants. (Docket Entry 25.)
II. FACTUAL BACKGROUND
The underlying factual allegations in the amended complaint relate solely to a dispute
between Plaintiffs and the City of Kannapolis involving a “six inch concrete asbestos water
main” located underneath Plaintiffs’ driveway. (Am. Compl. at 6, Docket Entry 9.) In the
amended complaint, Plaintiffs alleged that they requested that the City relocate or abandon
the water main, but that the City refused, instead claiming an express easement for the entire
subdivision. (Id.) On October 27, 2009, Plaintiffs filed a complaint for declaratory judgment
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in District Court, Cabarrus County, North Carolina against Defendant City. (Id.) The action
was transferred to Superior Court, where Defendant Crosswhite, Senior Resident Superior
Court Judge, Judicial District 22A, entered an order allowing Defendant City to withdraw
and re-file its motion for summary judgment over the objection of Plaintiffs. (Id. at 6-7.)
Subsequently, on October 12, 2010, Defendant Royster, Superior Court Judge, District 22A,
entered an order granting Defendant City’s motion for summary judgment.

Plaintiffs

appealed the decision to the North Carolina Court of Appeals. (Id. at 7.)
By an unpublished opinion dated November 1, 2011, Defendants Stroud, Geer, and
Thigpen, Judges of the North Carolina Court of Appeals, upheld the orders of the trial
court. (Id.) Plaintiffs petitioned the North Carolina Supreme Court for discretionary review,
and by order dated January 26, 2012, Defendant Jackson, North Carolina Supreme Court
Justice, denied the petition. (Id. at 8)
Plaintiffs seek declaratory and injunctive relief, and compensatory and punitive
damages. (Id. at 11.)
III. DISCUSSION – Subject Matter Jurisdiction
Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction, or, in the alternative,
for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Because the existence of subject
matter jurisdiction is a threshold issue, this court must address Defendant’s 12(b)(1) motion
to dismiss before addressing other grounds for dismissal or the merits of the case.
Defendants argue that the relief requested by Plaintiffs amounts to an appeal of a state court
judgment which runs afoul of the Rooker-Feldman doctrine and is not within this court’s
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jurisdiction. Specifically, the State Court Defendants argue that “[p]laintiffs, losers in state
court proceedings, seek, in essence, an appeal of the orders and decisions entered by North
Carolina’s trial and appellate courts.” (State Ct. Defs.’ Mem. Supp. Mot. to Dismiss at 3,
Docket Entry 12). Defendant City argues that Plaintiffs’ attempt to manufacture federal
subject matter jurisdiction by asserting federal constitutional issues is “insufficient to defeat
the Rooker-Feldman doctrine.” (Def. City Br. Supp. Mot. to Dismiss at 4, Docket Entry 19.)
Rule 12(b)(1) of the federal rules provides for dismissal where the court lacks
jurisdiction over the subject matter of the lawsuit. Lack of subject matter jurisdiction may be
raised at any time either by a litigant or the court. Mansfield, C & L. M.R. Co. v. Swan, 111
U.S. 379, 382 (1884). Should a defendant challenge the existence of federal subject-matter
jurisdiction, the plaintiff bears the burden of showing the jurisdiction exists. McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982).
A “court should grant the 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.”

Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). As the
party invoking federal jurisdiction in this case, Plaintiffs have the burden of establishing the
existence of subject matter jurisdiction. Richmond, 945 F.2d at 768. This burden, at the
pleading stage, can be met by alleging sufficient facts to show that there is a proper basis for
jurisdiction. Fed. R. Civ. P. 8(a)(1) (a complaint “shall contain a short and plain statement of

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the grounds upon which the court’s jurisdiction depends”). Nevertheless, pro se pleadings are
treated liberally. See Erickson v. Pardus, 551 U.S. 89 (2007)
Plaintiffs have not met their burden of establishing that federal subject-matter
jurisdiction exists. Plaintiffs assert that they are not appealing the decisions of the state
courts, but rather “are seeking compensation, or . . . injunctive relief, because the Honorable
Defendant Judges, in processing Plaintiff’s earlier litigation, took specific, illegal, actions
which violated the Plaintiffs’ federal rights of due process and equal protection which
resulted in an illegal transfer of Plaintiff George Petty’s property to Defendant City of
Kannapolis.” (Pl. Reply to Mot. to Dismiss, Docket Entry 17.) This argument is without
merit. A losing party in state court may not convert what is essentially an appeal of that
decision into a federal claim simply by alleging that his rights under the United States
Constitution have been violated by the state court judges and the proceedings over which
they presided. See, e.g., Jordahl v. Democratic Party of Va., 122 F.3d 192, 202 (4th Cir. 1997)
(holding that a party “may not escape the jurisdictional bar of Rooker-Feldman by merely
refashioning its attack on the state court judgments as a [civil rights] claim); Jones v. Curran,
No. 3:11cv37, 2011 WL 4402753 at *4 (W.D.N.C. May 18, 20110) (“Although Plaintiff
couches his claims in terms of conspiracy and constitutional violations, his Amended
Complaint seeks appellate review of the Superior Court’s refusal to enter default and grant
his motion for default judgment. In short, he challenges an unfavorable state-court decision.
This Court lacks subject matter jurisdiction over such claims.”); Huszar v. Zeleny, 269 F.
Supp.2d 98, 103 (E.D.N.Y. 2003) (“[T]he plaintiff cannot enter through the back door to
evade the Rooker-Feldman doctrine to get into federal court.”).
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In order to grant the relief sought by Plaintiffs, this court would necessarily have to
determine the state courts erred in rendering their decisions, which is prohibited under 28
U.S.C. § 1257(a)1 and the Rooker-Feldman doctrine. The Rooker-Feldman doctrine is derived
from two decisions of the United States Supreme Court, Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The
Rooker-Feldman doctrine generally prohibits lower federal courts from reviewing state court
decisions; “rather, jurisdiction to review such decisions lies exclusively with superior state
courts and, ultimately, the United States Supreme Court.” Plyler v. Moore, 129 F.3d 728, 731
(4th Cir. 1997); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)
(clarifying the Rooker-Feldman doctrine). Rooker-Feldman, therefore, applies when the federal
action “essentially amounts to nothing more than an attempt to seek review of [the state
court’s] decision by a lower federal court.” Plyler, 129 F.3d at 733; see also Brown & Root, Inc.
v. Breckenridge, 211 F.3d 194, 201 (4th Cir. 2000).
In Exxon, the Supreme Court significantly narrowed the scope of the Rooker-Feldman
doctrine, which previously had been interpreted by lower courts to mean that the loser in
state court “was barred from bringing suit in federal court alleging the same claim or a claim

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The full text of 28 U.S.C. § 1257(a) provides:
Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of certiorari
where the validity of a treaty or statute of the United States is drawn in question or
where the validity of a statute of any State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or laws of the United States, or where
any title, right, privilege, or immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any commission held or authority
exercised under, the United States.
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that could have been brought in the state proceedings.” Davani v. Va. Dept. of Transp., 434
F.3d 712, 713 (4th Cir 2006).

The Supreme Court, in Exxon, limited the Rooker-Feldman

doctrine to “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, 544 U.S. at 284.
Post Exxon, the Fourth Circuit Court of Appeals has explained:
Whereas in [cases pre-Exxon] we examined whether the state-court loser who
files suit in federal court is attempting to litigate claims he either litigated or
could have litigated before the state court, Exxon requires us to examine
whether the state-court loser who files suit in federal district court seeks
redress for an injury caused by the state court decision itself. If he is not
challenging the state-court decision, the Rooker-Feldman doctrine does not
apply. If, on the other hand, he is challenging the state-court decision, the
Rooker-Feldman doctrine applies. It is important to note that the RookerFeldman doctrine applies in this second situation even if the state court loser
did not argue to the state court the basis of recovery that he asserts in the
federal district court. A claim seeking redress for an injury caused by the
state-court decision itself – even if the basis of the claim was not asserted to
the state court - asks the federal court to conduct a review of the state-court
decision.
Davani, 434 F.3d at 718-19. (footnote and citations omitted). The phrase “inextricably
intertwined,” therefore,
does not create an additional legal test for determining when claims
challenging a state-court decision are barred, but merely states a conclusion: if
the state court loser seeks redress in federal district court for the injury caused
by the state-court decision, his federal claim is, by definition, ‘inextricably
intertwined’ with the state court decision, and is therefore outside the
jurisdiction of the federal district court.
Id. at 719.
The task for this court, accordingly, is to determine whether the challenged claims
satisfy the four essential elements of the Rooker-Feldman doctrine, as explained by the Court
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in Exxon: are the claims (1) brought by a state-court loser (2) complaining of injuries caused
by a state-court judgment (3) rendered before the instant proceedings commenced and (4)
inviting this court’s review and rejection of the state court judgment. Exxon, 540 U.S. at
284; see also Willner v. Frey, 243 Fed. Appx. 744, 746 (4th Cir. 2007). To the extent that
Plaintiffs seek declaratory and injunctive relief against State Court Defendants, each element
is met. Likewise, the claims for relief against the City also meet the requirements for
dismissal under Rooker-Feldman.
In their amended complaint, Plaintiffs allege that State Court Defendants took
actions and issued various rulings without affording Plaintiffs notice or an opportunity to be
heard, or without providing Plaintiffs a fair hearing. (See Am. Compl. at 9-10, Docket Entry
9.) Plaintiffs seek a “declaratory finding that Plaintiffs’ constitutional rights have in fact been
violated,” and “injunctive relief in the form of an evidentiary hearing on the issue of whether
Defendant City of Kannapolis in facts owns the claimed easement, preferably in this
Honorable United States District Court, alternatively before an impartial North Carolina trial
court.” (Am. Compl. at 11.) Plaintiffs also seek “[a] finding that the Defendant City of
Kannapolis has unlawfully attempted to deprive Plaintiffs of their property and must pay
Plaintiffs $100,000 in compensatory and $150,000 in punitive damages.” (Id. at 11-12.)

It

is inescapable that these requests for relief constitute requests for improper collateral review
of the various state court decisions.
Plaintiffs’ claims for relief, against both State Court Defendants and Defendant City
clearly satisfy the first and third elements of the Rooker-Feldman doctrine. The claims all stem
from actions which occurred in the course of state court proceedings and resulted in rulings
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which were unfavorable to Plaintiffs. It is undisputed that all of these rulings were issued
prior to the commencement of the instant case.
Plaintiffs’ claims also satisfy the second element of the Rooker-Feldman doctrine: they
allege injuries from a state court judgment. Plaintiffs argue that they are not complaining of
the various state court orders but rather are “seeking compensation or . . . injunctive relief,
because the honorable Defendant Judges, in processing Plaintiff’s [sic] earlier litigation, took
specific, illegal, actions which violated the Plaintiffs’ federal rights of due process and equal
protection which resulted in an illegal transfer of Plaintiff George Petty’s property to
Defendant City of Kannapolis.” (Reply in Opp. to Mot. to Dismiss at 2, Docket Entry17.)
This argument is without merit. If Plaintiffs are seeking declaratory relief stating that their
rights were violated in the past, such relief is not available. See Johnson v. McCuskey, 72 Fed.
Appx. 475, 477 (7th Cir. 2003) (finding that a plaintiff who asked district court to declare
that judges acted improperly in various ways when deciding a motion for change of venue
was “not seeking declaratory relief in the true legal sense” because declaratory judgments are
not meant to simply proclaim that one party is liable to another”); Andrews v. Paxson, Civil
Action No. 3:11-CV-518, 2012 WL 526290, at *3 (E.D. Va. Feb. 16, 2012) (finding that
plaintiff was not entitled to declaratory relief that a state court judge violated his
constitutional rights through her judicial conduct because plaintiff was not seeking to define
the legal rights and obligations of the parties). A reading of the allegations in the complaint
clearly shows that Plaintiffs are seeking a declaration that they were injured by the various
decisions of the state superior court and North Carolina Court of Appeals and North
Carolina Supreme Court. In so doing, Plaintiffs clearly seek review and rejection of the
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various state court orders and decisions. Couching their claims in due process and equal
protection language (see, e.g., Am. Compl. at 9-11, Docket Entry 9), does not convert
Plaintiffs’ action into a constitutional claim
Similarly, Plaintiffs’ claim for injunctive relief, by its very language, constitutes an
improper collateral attack on the state court decision. Plaintiffs request “an evidentiary
hearing on the issue of whether Defendant City . . . in fact owns the claimed easement.”
(Am. Compl. at 11, Docket Entry 9.) The decision rendered by the state court was that
Defendant City rightfully owns the claimed easement. An evidentiary hearing, as requested
by Plaintiffs, is simply an attempt to get another bite at the apple, i.e., a ruling that the City
does not have an easement on Plaintiffs’ property. An order allowing such a hearing for the
stated purpose would be tantamount to appellate review of the state court orders.
Finally, Plaintiffs’ claim for damages against Defendant City clearly is an improper
attempt to relitigate state court issues; by its very language, the prayer for relief seeks a
finding that Defendant City “unlawfully attempted to deprive Plaintiffs of their property,”
for which they seek compensatory and punitive damages. The state court orders are simply
unreviewable pursuant to Rooker-Feldman.
As the Fourth Circuit recently explained in a similar case:
[Plainitff’s] complaint asks that lower federal courts in effect exercise appellate
review over numerous state administrative and judicial decisions, and under
our system of federalism, the lower federal courts lack jurisdiction to sit as
appellate tribunals over state administrative and judicial decisionmakers,
absent express statutory authorization. Parties aggrieved by state
administrative and judicial decisions must pursue review in state appellate
tribunals, with the ultimate opportunity to petition the Supreme Court of the
United States for review.

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Rosseau v. Howard County, Md., 425 Fed. Appx. 193, 195 (4th Cir. 2011) (citations omitted).
It is recommended, therefore, that this action be dismissed pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction.
IV. CONCLUSION
In sum, in the present case, Plaintiffs have brought this suit against the state court
Defendants and the City, asking this court to review state court decisions and enter an order
finding that the City does not have an easement on Plaintiffs’ property.

Under 28 U.S.C. §

1257(a) and the Rooker-Feldman doctrine, this court lacks jurisdiction to review decisions and
actions of state courts. Therefore, IT IS RECOMMENDED that Defendants’ motion to
dismiss based on the Rooker-Feldman doctrine (Docket Entries 11, 18) be GRANTED.2
Should the court adopt this Recommendation, it is further RECOMMENDED that
Plaintiffs’ motion for summary judgment (Docket Entry 22) be DISMISSED as moot.

February 28, 2013
Durham, North Carolina

Having so recommended, the court need not reach Defendants’ remaining contentions in the
motions to dismiss, including Defendants’ contentions that Plaintiffs’ claims are barred by judicial
immunity, Eleventh Amendment immunity, or failure to state a claim upon which relief may be
granted.
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