DEVONE v. NATIONAL CASUALTY CO., INC.

Filing 20

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/23/2013; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docket Entry 1 ) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915 (e) (2)(B)(ii). (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JAMES MILTON DEVONE, SR.
Plaintiff,
v.
NATIONAL CASUALTY CO., aka
SCOTTSDALE INSURANCE CO.,
Defendant.

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1:12CV680

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 1), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 2).
The Court will grant Plaintiff’s request to proceed as a pauper for
the limited purpose of recommending dismissal of this action, under
28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953

(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).

“Dispensing with filing fees,

however, [is] not without its problems.
the statute

d[o]

not face

ordinary litigants.

the

same

Parties proceeding under
financial

constraints

as

In particular, litigants suing in forma

pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”

Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).
To

address

this

concern,

the

in

forma

pauperis

statute

provides, in relevant part, that “the court shall dismiss the case
at any time if the court determines that – . . . (B) the action or
appeal – . . . fails to state a claim on which relief may be
granted . . . .”

28 U.S.C. § 1915(e)(2).

A complaint falls short

when it does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added)
(internal citations omitted) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

This standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In
other words, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.

Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.”
Id.1
DISCUSSION
Plaintiff’s Complaint names National Casualty Company, also
known as Scottsdale Insurance Company, as the sole Defendant.
(Docket Entry 2 at 1.)2
aggravation

of

his

It alleges that Plaintiff

preexisting

Post-Traumatic

Stress

suffered
Disorder

(“PTSD”) when a Durham Area Transit Authority (“DATA”) bus he rode
collided with another vehicle.

(Id. at 2.)

The Complaint asserts

claims against Defendant - DATA’s insurer - under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”); the Americans
with Disabilities Act (“ADA”); Title VI of the Civil Rights Act of

1

Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (applying Twombly in dismissing
pro se complaint); accord Atherton v. District of Columbia Office
of Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than
formal pleadings drafted by lawyers.’
But even a pro se
complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” (quoting
Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679,
respectively)).
2

Plaintiff’s Complaint includes the phrase “et al.” in the
caption following Defendant’s name; however, it does not list any
additional Defendants as Parties. (Docket Entry 2 at 1.)
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1964; 42 U.S.C. §§ 1982, 1983, 1985, and 1986; and the Fourteenth
Amendment.

(Id. at 1-2.)3

The Complaint contains the following

factual allegations:
1) “Plaintiff was diagnosed with suffering with CHRONIC Post
Traumatic Stress Disorder (PTSD), by Dr. Hassan Jabbour, M.D. on
December 12, 2007” (id. at 2);
2) “on July 5, 2009, while Plaintiff was a passenger on the
Durham Area Transit Authority (DATA), his PTSD was further severely
aggravated,

when

the

bus

driver,

insured

by

Defendant(s)[,]

collided with a single passenger vehicle” (id.);
3)

“[a]fter

Defendant’s

Claims

Plaintiff
Agent

filed

attempted

a

[c]laim

to

use

with

Defendant,

‘coercion’

against

Plaintiff to settle his [c]laim of ‘aggravated’ CHRONIC PTSD
injury(ies)” (id.);
4)

“Defendant(s)

‘willfully

and

intentionally

delayed

attempting to resolve the matter of compensating Plaintiff for his
injuries, over the past two (2) years, eleven months . . . .”
(id.);

3

Plaintiff’s Complaint also asserts a claim under 18 U.S.C.
§ 1091 (Docket Entry 2 at 1), a criminal statute which proscribes
genocide; however, § 1091 does not create a private cause of action
for genocide, see 18 U.S.C. § 1092 (“[N]or shall anything in this
chapter be construed as creating any substantive or procedural
right enforceable by law by any party in any proceeding.”); Kadic
v. Karadzic, 70 F. 3d 232, 242 (2d Cir. 1995) (confirming that
§ 1091 does not establish private remedy).
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5)

“Plaintiff’s

PTSD

has

continuously

aggravated because

Defendant will not recognize his [c]laim, inasmuch as he has been
‘forced’ to reside in a ‘High Crime’ area . . . .” (id. at 3); and
6) “[r]ecently, Plaintiff has been subjected to even more
‘[s]tress’[] caused by Defendant not settling his [c]laims of
injuries”

(id.),

undergraduate

including

advisor

missing

(id.),

a

lecture

abandoning

his

given

by

his

research

and

development to reduce global warming (id.), learning that several
of his inventions had been stolen (id. at 4-5), experiencing
difficulties riding DATA buses (id. at 4), and having to take out
a high-interest loan (id. at 5).
Based

on

the

foregoing

allegations,

the

Complaint

seeks

“[i]njunctive [r]elief, by ORDERING Defendant(s) to immediately
‘[c]ease

and

[d]esist’

their

irresponsible

‘[t]orturing’

of

Plaintiff and[] recognize his [r]equest for [m]onetary [d]amages
[p]ayment

[in

the

amount

of

$32,500,000

in

actual

damages,

$32,500,000 in compensatory damages, and $32,500,000 in punitive
damages].”

(Id. at 6.)

As an initial matter, Plaintiff’s Complaint seeks relief from
Defendant as DATA’s insurer based on an accident that occurred
while he rode a DATA bus.

However, the police report (Docket Entry

2, Ex. B at 1) and correspondence from Defendant (Docket Entry 2,
Ex. E at 1) both state that the other driver - Katisha Nicole

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Whitley - caused the accident by improperly backing around a corner
(see Docket Entry 2, Ex. B at 1; Docket Entry 2, Ex. E at 1).

The

Complaint neither refutes Ms. Whitley’s responsibility for the
accident,

nor

alleges

additional

Defendant liable on DATA’s behalf.

facts

that

support

holding

(See Docket Entry 2 at 2-5.)

Thus, rather than sue the apparently responsible party, Plaintiff
has sued Defendant for alleged violations of federal law based on
Defendant’s handling of Plaintiff’s insurance claim.
Plaintiff’s Complaint, however, fails to identify a viable
cause of action that bears any rational relationship to his factual
allegations.

For instance, the Complaint invokes the civil RICO

statute, but does not identify Defendant’s involvement in a pattern
of racketeering activity (see Docket Entry 2 at 1-5), as required
by the statute, see 18 U.S.C. § 1962; Hemi Grp., LLC v. City of
N.Y., 559 U.S. 1, 6 (2010).
Similarly, the Complaint alleges a range of civil rights
violations, but does not offer facts to support that Defendant
discriminated against him on any basis or deprived him of any
constitutional rights.

(See Docket Entry 2 at 1-5.)

For example,

the Complaint asserts a claim under § 1982 - which prohibits race
discrimination in property transactions, see generally City of
Memphis v. Greene, 451 U.S. 100, 120-22 (1981) - but identifies no
racial component in Defendant’s conduct (see Docket Entry 2 at 25).

Along similar lines, the Complaint fails to state a claim

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under

the

Americans

with

Disabilities

Act,

see

42

U.S.C.

§

12182(a), because it does not allege Defendant treated Plaintiff
differently because of a disability (see Docket Entry 2 at 2-5).
The Complaint’s other asserted claims similarly fail as a
matter of law.

In this regard, the Complaint asserts a claim under

§ 1983 and the Fourteenth Amendment (see Docket Entry 2 at 1-2),
but does not set forth factual matter that would support the
required finding that Defendant - a private insurance company acted under color of state law, see West v. Atkins, 487 U.S. 42, 48
(1988); Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

The claims

under § 1985 and 1986 (see Docket Entry 2 at 1) also fail because
the Complaint does not allege facts showing that Defendant entered
into a conspiracy, particularly not “for the purpose of depriving,
either directly or indirectly, any person or class of persons of
the equal protection of the laws,” 42 U.S.C. § 1985(3); see Park v.
City of Atlanta, 120 F.3d 1157, 1160 (11th Cir. 1997) (“The text of
§ 1986 requires the existence of a § 1985 conspiracy.”).

The

Complaint also alleges a violation of Title VI, which prohibits
discrimination in federal programs and activities, see 42 U.S.C. §
2000d; however, the Complaint does not identify a federal program
or activity (see Docket Entry 2 at 2-5).
In

sum,

Plaintiff’s

Complaint

fails

to

state

a

claim.

Moreover, the Complaint seeks recovery for injuries that appear far
too

attenuated

from

the

alleged

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facts

of

the

accident

or

Defendant’s denial of his claim.
(noting in

context

of

civil

See Hemi Grp., 559 U.S. at 8-9

RICO claim

that

“‘[t]he

general

tendency of the law, in regard to damages at least, is not to go
beyond the first step’” (quoting Holmes v. Securites Investor Prot.
Corp., 503 U.S. 258, 271 (1992))).

The Complaint seeks to recover

not only for the alleged aggravation of Plaintiff’s PTSD (Docket
Entry 2 at 2), but further for Plaintiff being “forced” to reside
in an undesirable neighborhood and further “forced” to take out a
high-interest loan (id. at 2, 5).

Such damages appear too far

removed from Plaintiff’s alleged injuries in a bus accident or
Defendant’s handling of his insurance claim.
As a final matter, to the extent Plaintiff could assert a
claim against Defendant under North Carolina law for bad faith and pursue it in this Court based on diversity of citizenship - the
Complaint’s allegations cannot support relief.

North Carolina law

requires that a plaintiff “allege that the insurer has acted in bad
faith by refusing to settle or negotiate with the plaintiff and
that

the

insurers’

actions

have

been

a

misuse

of

power

and

authority tantamount to outrageous conduct reflecting a reckless
and wanton disregard of the plaintiff’s rights under the insurance
policy.” Johnson v. First Union Corp., 128 N.C. App. 450, 457, 496
S.E.2d 1, 6 (1998).

In this case, Plaintiff’s own letter to

Defendant states that Plaintiff declined Defendant’s settlement
offer of $500.

(Docket Entry 2, Ex. D at 1.)

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Moreover, because

Plaintiff does not allege facts to support DATA’s responsibility
for the accident (see Docket Entry 2 at 2-5), Defendant has not
shown that he has any rights under DATA’s insurance policy with
Defendant.
CONCLUSION
Plaintiff’s Complaint fails to state a claim.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis and Affidavit/Declaration in Support
(Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 23, 2013

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