BROOKS v. DIAZ C et al

Filing 4

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/22/2014; that Plaintiff's Application for Leave to Proceed In Forma Pauperis (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). (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK DOUGLAS BROOKS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
DADMA LYDIA DIAZ, et al.,
Defendants.

1:14CV794

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 his pro se Complaint (Docket Entry 2).

The Court

will grant Plaintiff’s Application (Docket Entry 1) for the limited
purpose of recommending dismissal of this action pursuant to 28
U.S.C. § 1915(e)(2)(B) for frivolousness, failure to state a claim,
and seeking monetary relief against immune defendants.
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.”
Cir.

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

1995)

(en

banc)

(internal

“Dispensing

with

filing

fees,

quotation

however,

[is]

marks
not

omitted).

without

its

problems. . . . 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.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).

To address this

concern, the in forma pauperis statute provides that “the court
shall dismiss the case at any time if the court determines . . .
(B) the action . . . (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief
relief.”

against

a

defendant

who

is

immune

from

such

28 U.S.C. § 1915(e)(2).

As to the first of these grounds, the United States Supreme
Court has explained that “a complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”

Neitzke v.

Williams, 490 U.S. 319, 325 (1989).

In assessing such matters,

this Court may “apply common sense.”

Nasim, 64 F.3d at 954; see

also Nagy, 376 F.3d at 256 (“The word frivolous is inherently
elastic and not susceptible to categorical definition.”

(internal

quotation marks omitted)).
As to the second ground, a plaintiff “fails to state a claim
upon which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii),
when the complaint 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) (internal

citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Where a complaint pleads facts that are ‘merely

2

consistent with’ a defendant's liability, it ‘stops short of the
line

between

relief.’”

possibility

and

plausibility

of

‘entitlement

Id. (quoting Twombly, 550 U.S. at 557).

to

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.”

Id.1

The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B)
generally applies to situations in which doctrines established by
the

United

States

Constitution

or

at

common

law

immunize

governments and/or government personnel from liability for damages.
See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984) (discussing sovereign immunity of states and state officials
under the Eleventh Amendment); Pierson v. Ray, 386 U.S. 547 (1967)
(describing

interrelationship

between

42

U.S.C.

§

1983

and

common-law immunity doctrines); cf. Allen v. Burke, 690 F.2d 376,
379

(4th

Cir.

1982)

(noting

that,

even

where

“damages

are

theoretically available under [certain] statutes . . ., in some

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) (dismissing pro se complaint).
3

cases, immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage remedy”).
ANALYSIS
Plaintiff’s Complaint presents a list of grievances with
Defendants in a conclusory and sometimes incoherent fashion.
Docket Entry 2 at 2-3.)

Plaintiff’s allegations appear to stem

from actions taken against him by Defendants in state court.
id.)

(See

(See

Although the Court “cannot shoulder the full burden of

fashioning a viable complaint for a pro se plaintiff,” Simon v.
Shawnee Corr. Ctr., No. 13-521-GPM, 2013 WL 3463595, at *1 (S.D.
Ill. July 9, 2013) (unpublished), the Court understands Plaintiff
to allege: a civil conspiracy to deprive him of his constitutional
rights actionable under 42 U.S.C. § 1983, unequal protection of the
laws by gender discrimination actionable under 42 U.S.C. § 1983,
violations

of

the

Americans

with

Disabilities

Act

(“ADA”)

(including a failure to accommodate a disability claim), civil
perjury, and damages for his unconstitutional conviction.
Docket Entry 2 at 2-3.)

(See

The Court should dismiss Plaintiff’s

claims for frivolousness, failure to state a claim, and seeking
monetary relief against immune defendants.
A.

Frivolousness
Plaintiff’s Complaint suffers from both factual and legal

frivolousness.
baseless claims.

Factually,

Plaintiff

alleges

delusional

and

For example, Plaintiff states that Defendant

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District Attorney Newton uses “unconstitutional practices to get
new clients in her office.”

(Docket Entry 2 at 3.)

As a District

Attorney, Defendant Newton represents only the State of North
Carolina.

See N.C. Gen. Stat. § 7A-61.

Further, the Complaint

reflects an unsupported everyone-is-out-to-get-me mentality by
Plaintiff.

(See

Docket

Entry

2

at

2-3).

As

for

legal

frivolousness, aside from the reasons for dismissal for failure to
state

a

claim

listed

in

part

B,

inapplicable theory for recovery.

Plaintiff

states

Plaintiff includes in his

Complaint a line stating “Extreme Res Ipsa Loquitur.”
Entry 2 at 3.)

another

(Docket

The doctrine of Res Ipsa Loquitur allows a fact

finder to infer negligence from the mere occurrence of an accident.
Restatement (Third) of Torts: Liability for Physical and Emotional
Harm § 17 (2010).

This doctrine has no bearing on the current

case. In sum, Plaintiff’s Complaint fails for factual and legal
frivolousness.
B.

Failure to State a Claim
i.

Section 1983 Civil Conspiracy

A civil conspiracy under Section 1983 requires that Plaintiff
prove (1) Defendants acted jointly in concert, (2) that some overt
act

was

done

in

furtherance

of

the

conspiracy,

and

(3)

the

conspiracy resulted in the deprivation of a constitutional right.
See Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th
Cir. 1996).

Courts can consider a private party acting in concert

5

with state officials in a conspiracy as acting under color of law
for Section 1983 actions - even if the state officials have
immunity.

See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

Here,

Plaintiff

appears

to

allege

that

all

Defendants

participated in a conspiracy to deprive him of his constitutional
rights. However, Plaintiff does not articulate what constitutional
right Defendants violated in their conspiracy. Moreso, Plaintiff’s
claim of a conspiracy reads as nothing more than a “defendantunlawfully-harmed-me

accusation,”

Iqbal,

556

U.S.

at

678.

Plaintiff’s allegations of a conspiracy consist of conclusory
statements unsupported by factual allegations.
2 at 2-3.)

(See Docket Entry

The Complaint repeats statements that Defendants

participated in a conspiracy but does not offer any supporting
factual statements. (Id.) Plaintiff’s Complaint, therefore, fails
to sufficiently allege the existence of a conspiracy, and the Court
should dismiss the claim.
ii.

Equal Protection Violation for Gender Discrimination

To succeed on an equal protection claim, a plaintiff must
first demonstrate that he has been treated differently
from others with whom he is similarly situated and that
the unequal treatment was the result of intentional or
purposeful discrimination. Once this showing is made,
the court proceeds to determine whether the disparity in
treatment can be justified under the requisite level of
scrutiny.
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

Here,

Plaintiff makes conclusory and factually unsupported claims that
his prosecution occurred due to “extreme gender bias.”
6

(Docket

Entry 2 at 3.)

Plaintiff, though, does not allege how Defendants

treated him differently because of his gender.

(See id. at 2-3.)

Therefore, Plaintiff has failed to allege the necessary elements,
and the Court should dismiss the claim.
iii.

The ADA and Failure to Accommodate

Title II of the ADA states that “no qualified individual with
a disability shall, by reason of such disability, be excluded from
participation

in

or

be

denied

the

benefits of

the services,

programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132.

The Fourth

Circuit has explained that to establish a violation of the ADA,
Plaintiff must allege that “(1) he has a disability, (2) he is
otherwise qualified to participate in the [public benefit], and (3)
he was excluded from the [public benefit] on the basis of his
disability.”
454,

461

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

(4th

Cir.

2012)

(footnote

omitted).

Plaintiff’s

disability must constitute a “motivating cause” of the exclusion
from the public benefit.

Id. at 462.

Public entities must also

provide reasonable accommodations to qualified disabled individuals
so that they may “‘have access to and take a meaningful part in
public service.’”

McElwee v. County of Orange, 700 F.3d 635, 641

(2d Cir. 2012) (quoting Powell v. National Bd. of Med. Exam’rs, 364
F.3d 79, 85 (2d Cir. 2004)).

7

Here,

Plaintiff

disability.

has

not

adequately

pled

that

he

has

a

Plaintiff only states that “Judge Hammonds [sic]

committed fraud on the court didn’t accomondate [sic] disability in
court. ADA act,” and that Defendant Siler “omitt[ed] disability in
court[.]”

(Docket Entry 2 at 2.)

Plaintiff provides no factual

support for the type or nature of his disability.

(See id. at 2-

3.) Furthermore, Plaintiff has not alleged how Defendants excluded
him from any public benefit.

(See id.)

Plaintiff fails to state

an ADA violation or a failure-to-accommodate claim, and the Court
should dismiss the claims.
iv.

Civil Perjury

North Carolina does not recognize a civil cause of action for
perjury.

Hawkins v. Webster, 78 N.C. App. 589, 591, 337 S.E.2d

682, 684 (1985).
separate

civil

Nor can this Court find any federal basis for a
cause

of

action

for

perjury.

To

the

extent

Plaintiff attempts to allege a civil cause of action for perjury
against Defendants, that claim fails because no such cause of
action exists.
v.

Therefore, the Court should dismiss the claim.

Challenge to His Conviction

[I]n
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus[.]

8

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Plaintiff

seeks compensation

conviction,

he

has

requirements of Heck.

not

for

his

demonstrated

Here, to the extent

alleged
that

unconstitutional
he

has

met

the

Therefore, the Court should dismiss the

claim.
C.

Immunity
Although Plaintiff has failed to state a claim against any

Defendant, even if he had, judicial, prosecutorial, and witness
immunity would bar almost all of Plaintiff’s claims.
i.

Judicial Immunity

“Judges performing judicial acts within their jurisdiction are
entitled to absolute immunity from civil liability claims.”

In re

Mills, 287 F. App’x. 273, 279 (4th Cir. 2008) (emphasis added).
“[J]udicial immunity is an immunity from suit, not just from
ultimate assessment of damages.”
(1991).

Mireles v. Waco, 502 U.S. 9, 11

To determine whether an action constitutes a “judicial

act” protected by judicial immunity, the Court must consider
“whether the function is one normally performed by a judge, and
whether the parties dealt with the judge in his or her judicial
capacity.”

King v. Myers, 973 F.2d 354, 357 (4th Cir. 1992).

Plaintiff details his claims against Defendants Judge Hammond
and Judge Joe in three parts.

Plaintiff states, first, “Judge

Hammonds [sic] committed fraud on the court didn’t accomondate
[sic] disability in court.

ADA act[.]”

9

(Docket Entry 2 at 2.)

Second,

“Judg[e]

Regina

unconstitutional

process

Cannon 3 c ii.”

(Id.)2

M.

Joe:

orastrated

giving plaintiff

[sic]

advice

the

whole

violation

of

Last, “D.A. Kristy M. Newton conspir[ed]

with Judge Regina M. Joe for conviction. Honorable violated Cannon
3 c ii giving advice to go criminal.”

(Id. at 3.)

Even in the

light most favorable to the Plaintiff, Plaintiff’s allegations
entitle Defendants Judge Hammond and Judge Joe to judicial immunity
as Plaintiff’s allegations relate to judicial acts.
Plaintiff first claims that Defendant Judge Hammond failed to
accommodate Plaintiff’s alleged disability in court.
Defendant

Judge

Hammond’s

refusal

to

accommodate

However,

Plaintiff’s

disability constitutes exercising control over the courtroom, i.e.,
a judicial act protected by judicial immunity.

See Duvall v.

County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (upholding
summary judgment on judicial immunity grounds for a judge who did
not accommodate the plaintiff’s disability in court).

Plaintiff’s

second claim, that Defendant Judge Joe allegedly orchestrated the
whole unconstitutional process and/or gave Plaintiff advice, also

2

North Carolina does not have a “Cannon [sic] 3 c ii.”
However, North Carolina has adopted Canon 3(C)(1)(d)(ii), which
requires disqualification of a judge if, “[h]e or his spouse, or a
person within the third degree of relationship to either of them,
or the spouse of such a person: [i]s acting as a lawyer in the
proceeding.” Order Adopting Amendments to the North Carolina Code
of Judicial Conduct,
http://www.aoc.state.nc.us/www/public/aoc/NCJudicialCode.pdf (last
visited Oct. 15, 2014). Plaintiff thus may contend that, by giving
advice, Defendant Judge Joe improperly acted as a lawyer in the
proceeding(s).
10

qualifies as a judicial act.

Any control Defendant Judge Joe

exercised over the proceedings must have occurred in her judicial
capacity.

Further, in order to violate Canon 3(C)(1)(d)(ii)

Defendant Judge Joe must have acted as the judge in the proceeding
- meaning, Plaintiff’s allegations demonstrate that he interacted
with her in her judicial capacity, and thus enjoyed protection by
judicial immunity. Plaintiff’s third claim, that Defendants Newton
and Judge Joe conspired for Plaintiff’s conviction, also concerns
a judicial act subjected to judicial immunity.

See Ashelman v.

Pope, 793 F.2d 1072, 1077-78 (9th Cir. 1986) (en banc) (“[A]
conspiracy between judge and prosecutor to predetermine the outcome
of a judicial proceeding, while clearly improper, nevertheless does
not pierce the immunity extended to judges and prosecutors.”).
Plaintiff’s claims against both Defendants Judge Hammond and
Judge Joe arose in the context of judicial acts and, therefore,
judicial immunity precludes such claims.

Accordingly, the Court

should dismiss such claims under Section 1915(e)(2)(B)(iii).
ii.

Prosecutorial Immunity

Prosecutors enjoy absolute immunity from Section 1983 claims
for “activities ‘intimately associated with the judicial phase of
the criminal process . . . .’”

Ostrzenski v. Seigel, 177 F.3d 245,

250 (4th Cir. 1999) (quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)).

Plaintiff alleges that “DA Kristy M. Newton: conccoted

[sic] the birth of a child, and ADA Candace commit [sic] conspiracy

11

and subordination of perjury and ommit [sic] disability in courts.
Submitted

the

wrong

criminal

misrepresentation [sic] [.]”

background

check

to

(Docket Entry 2 at 2.)

judge.
Second,

Plaintiff asserts that “D.A. Newton seen proof and evidence of
perjury and didn’t take any legal action.”
Plaintiff

complaints

of

“ADA

Siler

(Id. at 3.)

hiding

file

on

Third,

8/24/2011

ommitting [sic] disability in court on 9/21/11 and 8/24/11[.]”
(Id.)

Finally, Plaintiff alleges that “D.A. Kristy M. Newton

conspiring with Judge Regina M. Joe for conviction. . . . D.A.
Newton has knowledge of perjury and did nothing.”
Prosecutorial

immunity

precludes

(Id.)

Plaintiff’s

claims.

Plaintiff’s allegations demonstrate that Defendants Newton and
Siler’s activities were “intimately associated with the judicial
phase of the criminal process,” Imbler, 424 U.S. at 430.

In each

allegation, Defendants Newton and Siler’s purported actions relate
to actions taken in Plaintiff’s criminal case - the presentation of
perjured testimony, the suppression of evidence, or conspiring to
obtain a conviction (see Docket Entry 2 at 2-3) - and courts have
held that prosecutorial immunity covers these types of claims, see
Imbler, 424 U.S. at 431 (finding prosecutorial immunity applied to
defendant prosecutor who knowingly used false testimony in a
criminal case); Cousin v. Small, 325 F.3d 627, 635 (5th Cir. 2003)
(holding

that

prosecutorial

immunity

precludes

a

claim

for

suppression of exculpatory evidence under Section 1983); Dory v.

12

Ryan, 25

F.3d

81,

83 (2d

Cir.

1994)

(applying prosecutorial

immunity to a defendant prosecutor who had allegedly conspired to
present false evidence at a criminal trial); Ashelman, 793 F.2d at
1078 (“[A] conspiracy between judge and prosecutor to predetermine
the outcome of a judicial proceeding, while clearly improper,
nevertheless does not pierce the immunity extended to judges and
prosecutors.”).

Defendants

Newton

and

Siler’s

prosecutorial

immunity precludes Plaintiff’s Section 1983 claims.

In sum,

Plaintiff has sought monetary relief against Defendants who are
immune from such relief and thus the Court should dismiss those
claims.
iii.

Witness Immunity

A witness has absolute liability from a subsequent lawsuit
under Section 1983 alleging perjury.
325,

333-34

(1983).

Plaintiff

Briscoe v. LaHue, 460 U.S.

alleges

that

Defendant

“committed conspiracy, perjury about the timeline.

Diaz

Didn’t reveal

knowledge of a possible mental defect or birth of child in 2010
possibly by me.”

(Docket Entry 2 at 2.)

Plaintiff does not

explicitly state that Defendant Diaz perjured herself by testifying
in court, but Defendant Diaz would have immunity from any such
Section 1983 claim.

Briscoe, 460 U.S. at 333-34.

If Defendant

Diaz did not testify in court, then the claim would still fail for
the reasons stated in part B(i) above.
dismiss the claim.

13

The Court therefore should

CONCLUSION
Plaintiff has demonstrated eligibility for proceeding in forma
pauperis; however, the Court should dismiss his Complaint under §
1915(e)(2)(B) for frivolousness, failure to state a claim, and
seeking monetary relief from immune defendants.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis (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).

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 22, 2014

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