BROOKS v. DIAZ C et al
Filing
9
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 1/9/2015, RECOMMENDING that Plaintiff's Amended Complaint (Docket Entry 7 ) be dismissed for frivolousness and failure to state a claim. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARK DOUGLAS BROOKS,
Plaintiff,
v.
CANDACE E. SILER, et al.,
Defendants.
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1:14CV794
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge for an initial review of Plaintiff’s pro se
Amended Complaint (Docket Entry 7).1
The undersigned previously
reviewed Plaintiff’s original Complaint and recommended dismissal
(see Docket Entry 4); however, during the pendency of review by the
assigned United States District Judge, Plaintiff submitted his
Amended Complaint and the Court (per United States District Judge
Thomas D. Schroeder) remanded the matter to the undersigned for
further review.
The undersigned will recommend dismissal of this
action pursuant to 28 U.S.C. § 1915(e)(2)(B) for frivolousness and
failure to state a claim.
1
Plaintiff currently has the right to amend his pleadings
once as a matter of course, see Fed. R. Civ. P. 15(a)(1), so the
undersigned will accept Plaintiff’s Amended Complaint.
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 . . .
the action . . . is frivolous or malicious . . . [or] fails to
state a claim on which relief may be granted . . . .”
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
2
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
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.”
2
Id.2
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
ANALYSIS
Plaintiff’s Amended Complaint stems from actions - or inaction
- by Defendants during Plaintiff’s state criminal trial.
Docket Entry 7.)
(See
More specifically, the Amended Complaint alleges
violations of: (1) 42 U.S.C. § 1983 (id. at 4-5); (2) the North
Carolina Persons with Disabilities Protection Act (“PDPA”) (id. at
5); and (3) Title II of the Americans with Disabilities Act (“ADA”)
(id. at 6-7).3
The Amended Complaint frivolously attempts to bring
claims past the statute of limitations and fails to state a claim
against Defendants.
A.
Frivolousness
The Court should dismiss Plaintiff’s ADA/Rehabilitation Act
and PDPA claims as frivolous because Plaintiff filed the claims
outside of the two-year statute of limitations.
of
the
ADA
limitations.
nor
the
Rehabilitation
Act
Neither Title II
provide
a
statute
of
See Mary’s House, Inc. v. North Carolina, 976 F.
Supp. 2d 691, 699 (M.D.N.C. 2013). Accordingly, the Fourth Circuit
has instructed courts to use the most analagous state-law claim’s
3
The Amended Complaint states that Plaintiff also brings this
action under Section 504 of the Rehabilitation Act of 1973, as
amended, at 29 U.S.C. § 794. (Docket Entry 7 at 1.) However,
Plaintiff did not set out a separate count for this claim as he did
others. (See id. at 4-7.) Nevertheless, given Plaintiff’s pro se
status, the undersigned will assume Plaintiff included it within
the ADA claim given the similarities of the two statutes.
See
Baird v. Rose, 192 F.3d 462, 468-69 (4th Cir. 1999) (noting the
similarities of the two statutes except for the analysis of
causation).
4
statute of limitations.
A Soc’y Without A Name v. Virginia, 655
F.3d 342, 347 (4th Cir. 2011).
This Court (per Judge Schroeder)
has previously deemed PDPA, N.C. Gen. Stat. 168A, the most analgous
state-law claim in this context; thus, establishing a two-year
statute of limitations for non-employment ADA and Rehabilitation
Act claims.
Mary’s House, Inc., 976 F. Supp. 2d at 699.
Under
federal law, a claim accrues when “the plaintiff ‘knows or has
reason to know of the injury which is the basis of the action.’”
Id. (quoting A Soc’y Without A Name, 655 F.3d at 348).
Under North
Carolina law, a claim accrues when the plaintiff has the right to
file suit.
See Willets v. Willets, 254 N.C. 136, 145, 118 S.E.2d
548, 554 (1961).
A court can dismiss a claim as frivolous if it
violates the applicable statute of limitations. See Nasim, 64 F.3d
at 956 (upholding dismissal of time-barred claim as frivolous).
In this case, Plaintiff alleges that, on September 21, 2011,
Defendant Judge Hammond and Defendant Siler denied Plaintiff’s
request for reasonable accomodations in his court case.
Entry 7 at 4.)
(Docket
Therefore, Plaintiff’s ADA/Rehabilitation Act and
PDPA claims accrued on that date.
According to the file-stamp by
the Clerk’s office, Plaintiff filed his instant action on September
16, 2014.
almost
(Docket Entry 2 at 1.)
one
Accordingly,
year
after
the
the
Court
Thus, Plaintiff filed his case
statute
should
of
limitations
dismiss
expired.
Plaintiff’s
ADA/Rehabilitation Act and PDPA claims for frivolousness.
5
B.
Failure to State a Claim
The Court should dismiss Plaintiff’s Section 1983 claim for
failure to state a claim.4
To state a claim under Section 1983, “a
plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under the
color of state law.”
(emphasis added).
West v. Atkins, 487 U.S. 42, 48 (1988)
However, “neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.”
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).
The Fourth Circuit has long held that North Carolina District
Attorneys qualify as state officials. See Nivens v. Gilchrist, 444
F.3d 237, 249 (4th Cir. 2006).
Similarly, this Court (per Senior
United States District Judge Beaty, adopting the recommendation of
United States Magistrate Judge Joe L. Webster) has held that North
Carolina
state-court
judges
also
qualify
as
state
officials.
Warren v. Bray, No. 1:13CV1144, 2014 WL 3404962, at *5 (M.D.N.C.
July 10, 2014) (unpublished), recommendation adopted, slip op.
(Docket Entry 31) (M.D.N.C. Sept. 9, 2014).
Here, Plaintiff seeks recovery from Defendants Siler and
Newton (attorneys for the Hoke County District Attorney’s office),
4
In addition, the Court should dismiss the Section 1983 claim
against Defendant Newton because Plaintiff does not make any
pertinent allegations regarding Defendant Newton. To the extent
Plaintiff implicitly relies on Defendant Newton’s mere supervisory
role, that argument fails. See Iqbal, 556 U.S. 662, 676-77 (2009).
6
and Defendant Judge Hammond (a district court judge) solely in
their official capacities.
(See Docket Entry 7 at 2-3 (“Defendant
[Hammond] is sued in his official capacity as judge. . . .
Defendant [Siler] is sued in her official capacity as prosecutor
for 16A prosecutorial district. . . . [Defendant Newton] is being
sued in her official capacity.”).)
As “master of his complaint,”
Standard Fire Ins. Co. v. Knowles, __ U.S. __, __, 133 S. Ct.
1345, 1350 (2013), Plaintiff specifically and explicitly elected to
sue Defendants only in their official capacities. Accordingly, all
Defendants in this case qualify as state officials, and, as such,
Plaintiff cannot use Section 1983 to sue Defendants.
Therefore,
the Court should dismiss Plaintiff’s Section 1983 claim for failure
to state a claim.5
5
Plaintiff also seeks injunctive relief from Defendants,
which Section 1983 allows against defendants in their official
capacity.
See Will, 491 U.S. at 71 n.10.
However, to obtain
injunctive relief, Plaintiff must allege an ongoing violation of
federal law. McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir.
2010).
In this case, although Plaintiff requests “[a]n order
enjoining/restraining
Defendants
from
further
acts
of
discrimination or retaliation,” (Docket Entry 7 at 7), he does not
allege any facts suggesting the existence of a threat of ongoing
retaliation or discrimination.
Further, Plaintiff’s additional
request of “[a]n Order [f]or Defendant[] Newton[] to respond to
inquiries concerning misconduct of supervised employees” (id.) does
not represent a proper form of injunctive relief.
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IT IS RECOMMENDED that Plaintiff’s Amended Complaint (Docket
Entry 7) be dismissed for frivolousness and failure to state a
claim.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 9, 2015
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