BROWN v. JOHNSON et al

Filing 8

MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/12/2014; that Plaintiff's Application for Leave to Proceed In Forma Pauperis and Affidavit/Declaration in Support (Docke t 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). FURTHER RECOMMENDED that Plaintiff's Motion for Temporary Restraining Order (Docket Entry 4 ) be denied as moot. (Garland, Leah)

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

MICHAEL W. BROWN,
Plaintiff,
v.
CATHY H. JOHNSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

1:14CV432

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), and
Plaintiff’s Motion for Temporary Restraining Order (Docket Entry
4).

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.

Given that recommendation of dismissal, the Court should

deny as moot Plaintiff’s Motion for Temporary Restraining Order.
LEGAL BACKGROUND
“The federal in forma pauperis [‘IFP’] 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.

Parties

proceeding under the statute d[o] not face the same financial
constraints as ordinary litigants.

In particular, litigants suing

[IFP] 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 IFP 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 . . . .”
U.S.C. § 1915(e)(2).

28

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.’”
Iqbal,

556

U.S.

662,

678

(2009)

(emphasis

Ashcroft v.

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

2

conclusions.

Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id.1
DISCUSSION
Plaintiff’s Complaint names Cathy H. Johnson and Monta Davis
Oliver, both employees of the Yadkin County Department of Social
Services, as Defendants.

(Docket Entry 2 at 1-2.)2

It asserts

that Defendants improperly failed to consider his applications for
two North Carolina energy assistance programs (see id. at 2-3) and
that Defendants failed to assist him after the disconnection of his
electricity service (id. at 4-6).

Based on those allegations,

Plaintiff’s Complaint alleges violations of his procedural due
process rights and asserts claims pursuant to 42 U.S.C. §§ 1981,

1

Although “[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) (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 in the caption the term “et.
all [sic]” but does not identify any additional Defendants by name.
(See Docket Entry 2 at 1-11.)
3

1983, 1985(3), and 1986, as well as state-law claims for libel,
misconduct in public office, negligence, and interference with
contract rights.

(Id. at 3-5.)

In support of Plaintiff’s claims,

the Complaint offers the following factual allegations:
1) “[o]n or about 02/10/2014, [Plaintiff] went to the Yadkin
County Department of Social Services office and applied for the
North Carolina Energy Programs Plan” (id. at 2);
2) “[Defendant] Johnson is the [Plaintiff’s] case worker
. . . . [and] [Defendant] Oliver [is] [Defendant] Johnson[’]s
supervisor” (id. at 3-4);
3) “[Plaintiff was] approved for L[ow] I[ncome] E[nergy]
A[ssistance] P[rogram] [“LIEAP”] funding found in section[] 300 of
the Energy Manual . . . . [and] C[risis] I[ntervention] P[rogram]
[“CIP”] funding found in section[] 400 of the Energy Manual” (id.
at 2-3);
4) “[Plaintiff was] not considered, nor denied, nor approved
for potential services found in section[] 200 of the Energy Manual
. . . . [or] in the Home Energy Assistance Program” (id. at 3);
5) “[o]n or about 04/09/2014, [Plaintiff] received from SurryYadkin Electric Membership Corporation, a termination notice of
disconnect date of 05/08/2014, for not receiving payment for the
March bill” (id. at 6);

4

6) “[Plaintiff] had to borrow money to pay $154.40 dollars []
which should have been payed by the North Carolina Energy Programs,
to avoid a disconnect” (id.);
7) “[o]n or about 05/09/2014, [Plaintiff] contacted by phone,
[Defendant] Oliver . . . and discussed [Plaintiff’s] considerations
of denial or approval for potential services from federal, and
state,

and[/]or

other

organizations

opportunity

to

provide

outreach” (id. at 4);
8) “[Defendant] Oliver . . . stated to [Plaintiff] that there
was nothing that she could do . . . .” (id.); and
9) “[Defendants] knew or should have known that they were
violating

clearly

established

state

regulations

of

which

a

reasonable person would have known at the time their acts were
committed”

(id. at 6).

Based on the foregoing allegations, Plaintiff’s Complaint
seeks the following relief:
1) a declaratory judgment “interpreting imperatives within the
North Carolina Energy Programs Regulations Manual” (id. at 9);
2)

a

“temporary

restraining

order

and/or

preliminary

injunction . . . stopping the immeadiate [sic] and irreparable
disconnection of [Plaintiff’s] power” (id. at 10);
3) compensatory damages including special damages totaling
$164.40, plus postage incurred in mailing the Complaint, as well as
general damages;

5

4) “[Plaintiff’s] fees for legal work[] and . . . all court
cost[s] and taxes incurred . . . involving the cost of this
litigation; (id. at 11) and
5) punitive damages for “misconduct in public office[] and
. . . failure to perform duties” (id.).
As an initial matter, Plaintiff’s Complaint asserts claims
under several federal civil rights statutes which exclusively
concern discrimination based on race (or potentially, in the case
of

§§

1985

and

1986,

other

class-based

animus).

However,

Plaintiff’s Complaint makes no mention of race whatsoever, or any
other protected class.

(See id. at 1-11.)

Plaintiff asserts that

“[c]onsideration of denial or approval for potential services from
federal,

and

state,

and[/]or

other

organizations

to

provide

outreach arbitrarily violates title 42 U.S.C.S. § 1981” (id. at 4);
however, “Section 1981 offers relief when racial discrimination
blocks the creation of a contractual relationship, as well as when
racial

discrimination

impairs

an

existing

contractual

relationship,” Domino’s Pizza, Inc. v. McDonald, 126 U.S. 470, 476
(2006).

Plaintiff also invokes 42 U.S.C. §§ 1985(3) and 1986

(Docket Entry 2 at 4) notwithstanding that § 1985(3) requires proof
of a conspiracy with “some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators’
action,” Griffin v. Breckinridge, 403 U.S. 88, 102 (1971), and that
“[r]ecovery under § 1986 depends on the existence of a conspiracy

6

under § 1985,” Bowie v. Maddox, 642 F.3d 1122, 1128 (D.C. Cir.
2011). Given that Plaintiff’s Complaint contains no allegations as
to race (or a conspiracy of any kind), Plaintiff’s claims pursuant
to 42 U.S.C. §§ 1981, 1985(3), and 1986 fail as a matter of law.
For this reason, only Plaintiff’s § 1983 and state-law claims
remain.

Plaintiff’s

Complaint

does

not

specify

whether

the

asserted § 1983 claim originates from a federal constitutional
violation, a federal statutory violation, or both.

(See Docket

Entry 2 at 7 (“[Plaintiff] hereby [has] good cause to believe that
Title 42 U.S.C.S. § 1983 permits [Plaintiff] to sue for the
deprivation of any rights, privileges, and immunities secured by
the Constitution and laws, caused by persons acting under color of
state law, provides the basis for this cause of action and remedy
for this lawsuit.”).)

However, the Fourth Circuit has held that

the

which

federal

statute

establishes

funding

for

state-

administered energy assistance programs, the Low Income Home Energy
Assistance Act, does not create a substantive right enforceable
through § 1983.

Hunt v. Robeson Cnty. Dep’t of Soc. Servs., 816

F.2d 150, 152 (1987).

Furthermore, Plaintiff’s Complaint does not

identify an alternate federal statute to support a § 1983 claim.
(See Docket Entry 2 at 1-11.)
The United States Supreme Court has recognized that the
expectation of continued utility services may constitute a property
interest protected by the Due Process clause of the Constitution.

7

See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11
(1978).

A

§

1983

claim

premised

on

a

violation

of

the

constitutional right to procedural due process, however, would fail
because Plaintiff has not availed himself of available state
administrative remedies.

Although § 1983 generally does not

require a plaintiff to exhaust administrative remedies, Patsy v.
Board of Regents of Fla., 457 U.S. 496, 516 (1982), “a litigant
asserting a deprivation of procedural due process must exhaust
state remedies before such an allegation states a claim under §
1983,” Wax ‘n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th
Cir. 2000) (emphasis added) (citing cases from the First, Second,
Seventh, and Eleventh Circuit Courts of Appeal).

“This rule . . .

recognizes that the state must have the opportunity to remedy the
procedural

failings

of

its

subdivisions

and

agencies

in

the

appropriate fora — agencies, review boards, and state courts before
being subjected to a claim alleging a procedural due process
violation.”

Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir.

2000) (internal quotation marks omitted).

In other words, “[i]f

adequate state remedies were available but the plaintiff failed to
take advantage of them, the plaintiff cannot rely on that failure
to claim that the state deprived him of procedural due process.”
Id.
Plaintiff’s Complaint fails to assert that he took any action
seeking state administrative (or judicial) remedies (see Docket

8

Entry 2 at 1-11), notwithstanding that North Carolina law afforded
Plaintiff

the

unreasonable
services.

opportunity
inaction

-

to
of

challenge
the

a

county

decision

department

-

or

of

the

social

Chiefly, Plaintiff could have pursued an appeal through

North Carolina’s administrative process,

see N.C. Gen. Stat. §

108A-79(a) (“A public assistance applicant or recipient shall have
a right to appeal the decision of the county board of social
services, county department of social services, or the board of
county commissioners granting, denying, terminating, or modifying
assistance, or the failure of the county board of social services
or county department of social services to act within a reasonable
time . . . .”), and obtained a local appeal hearing before the
county director, see N.C. Gen. Stat. § 108A-79(d).
could

have

subsequently,
courts.

challenged

that

local

obtained

judicial

review

hearing
by

the

Plaintiff then
decision
North

and,

Carolina

See N.C. Gen. Stat. § 108A-79(g), (i), (j), (k).

Further, to the extent that Plaintiff’s Complaint alleges that
Defendants neglected to perform their lawful obligations (see
Docket Entry 2 at 6 (“[Defendants] knew or should have known that
they were violating clearly established state regulations of which
a reasonable person would have known at the time their acts were
committed.”), Plaintiff could have petitioned a state court for a
writ

of

mandamus

compelling

Defendants

to

“perform

their

constitutional or statutory duty,” In re Officials of Kill Devil

9

Hills Police Dep’t, 733 S.E.2d 582, 587 (N.C. App. 2012) (internal
quotation marks omitted).

Under North Carolina law, a writ of

mandamus
is the proper remedy to compel public officials, such as
members of an administrative board, to perform a purely
ministerial duty imposed by law, where it is made to
appear that the plaintiff, being without adequate remedy,
has a present, clear, legal right to the thing claimed
and it is the duty of the respondents to render it to
him.
Hamlet

Hosp.

&

Training

Sch.

for

Nurses

v.

Joint

Comm.

on

Standardization, 234 N.C. 673, 680, 68 S.E.2d 862, 867 (1952).
Pursuant

to

this

mandamus

authority,

“a

court

of

competent

jurisdiction may determine in a proper proceeding whether a public
official has acted capriciously or arbitrarily or in bad faith or
in disregard of the law.

And it may compel action in good faith in

accord with the law.”

In the Matter of Alamance Cnty. Ct.

Facilities, 329 N.C. 84, 106, 405 S.E.2d 125, 136 (1991).

In sum,

North Carolina provided Plaintiff access to processes by which he
could have sought to vindicate any right purportedly infringed by
Defendants.
Furthermore,

Plaintiff’s

Complaint

principally

challenges

Defendants’ failure to consider Plaintiff for “potential services
found in section[] 200 of the Energy Manual . . . [and] “potential
services found in the Home Energy Assistance Program” (Docket Entry
2 at 3.)

However, neither of these programs appears to provide any

direct energy assistance to individuals.

10

Rather, the Energy

Programs Outreach Plan requires county social services departments
to “assure that eligible households are made aware of the available
[energy] assistance.” Energy Programs Manual, North Carolina Dep’t
of

Health

&

Human

Servs.,

§

200.01

(2012),

available

at

http://info.dhhs.state.nc.us/olm/manuals/dss/ei-40/man/EPs200.htm
#P10_140 (emphasis added).

Specifically, the Energy Programs

Outreach Plan directs county social services departments to work
with other local agencies to publicize LIEAP and CIP, see id., §§
200.2, 200.8, for which Plaintiff asserts he has already qualified
(see Docket Entry 2 at 2-3).

As to Plaintiff’s reference to the

“Home Energy Assistance Program,” no program by that name appears
in the published list of energy programs administered by the North
Carolina Department of Social Services.

See Energy Programs

Manual, supra, § 100.01. Instead, “Home Energy Assistance Program”
likely refers to the federal block-grant program (created pursuant
to the Low Income Home Energy Assistance Act) which provides North
Carolina with funds to operate LIEAP and CIP.

See Hunt, 816 F.2d

at 151; Guilford Cnty. Cmty. Action Program, Inc. v. Wilson, 348 F.
Supp. 2d 548, 557 (M.D.N.C. 2004).
Even assuming that Defendants improperly failed to consider
Plaintiff’s applications for any heating assistance programs - and
to

the

extent

that

Plaintiff’s

Complaint

also

challenges

Defendants’ purported refusal to otherwise assist him following the
termination of his service - Plaintiff’s federal procedural due

11

process claim nonetheless fails as a matter of law for the reasons
discussed above.
state law.

Plaintiff’s only remaining claims arise under

“[I]n any civil action of which the district courts

have original jurisdiction, the district courts have supplemental
jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States
Constitution.”
However,

28 U.S.C. § 1367(a).
“the

district

courts

may

decline

to

exercise

supplemental jurisdiction over a claim under subsection (a) if
. . . the district court has dismissed all claims over which it has
original

jurisdiction.”

consistently

been

28

recognized

U.S.C.
that

§

1367(c)(3).

pendent

“It

jurisdiction

has
is

a

doctrine of discretion, not of plaintiff’s right . . . . [I]f the
federal

claims

are

dismissed

before

trial,

even

though

not

insubstantial in a jurisdictional sense, the state claims should be
dismissed as well.”
715, 726 (1966).

United Mine Workers of Am. v. Gibbs, 383 U.S.
In light of the recommended dismissal of the

federal claims at the pleading stage and the absence of grounds for
the exercise of diversity jurisdiction,3 the Court should decline

3

The Complaint identifies Plaintiff and Defendants as
residents of Yadkin County, North Carolina. (Docket Entry 2 at 12.) Such circumstances cannot satisfy the diversity jurisdiction
statute. See 28 U.S.C. § 1332(a).
12

to exercise supplemental jurisdiction over Plaintiff’s state-law
claims and, instead, should dismiss those claims without prejudice.
As a final matter, given this recommendation of dismissal for
failure

to

state

a

claim,

Plaintiff’s

Motion

for

Temporary

Restraining Order (Docket Entry 4) should be denied as moot.
CONCLUSION
Plaintiff’s Complaint falls short as a matter of law.
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).
IT

IS

FURTHER

RECOMMENDED

that

Plaintiff’s

Motion

for

Temporary Restraining Order (Docket Entry 4) be denied as moot.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 12, 2014

13