MONROE v. STATE OF NORTH CAROLINA et al
Filing
7
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 04/22/2015,DENYING 3 MOTION to Appoint Counsel, and GRANTING FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION 2 MOTION for Leave to Proceed in forma pauperis. It is RECOMMENDED that this action be dismissed.( Objections to R&R due by 5/11/2015)(Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALGERNON J. MONROE,
Plaintiff,
v.
STATE OF NORTH
CAROLINA, et al.,
Defendants.
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1:15CV171
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 2), filed in
conjunction with Plaintiff’s pro se Complaint (Docket Entry 6) and
Plaintiff’s Motion to Appoint Counsel (Docket Entry 3).
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) and (iii), for failure to state a claim
and for seeking monetary relief against immune defendants, and will
deny Plaintiff’s Motion to Appoint Counsel.
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
A second 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 “[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)).
3
cases, immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage remedy”).
DISCUSSION
Plaintiff’s Complaint names the State of North Carolina,
Elaine Bushfan, Geri Nettles, Danielle Briggs, and Doretta L.
Walker as Defendants.
(Docket Entry 6 at 1.)
Defendant Bushfan
serves as a North Carolina Superior Court Judge, see Superior Court
Judge Elaine M. O’Neal Bushfan, Durham County - District 14, The
North
Carolina
Court
System,
http://www.nccourts.org/County
/Durham/Staff/SCJudges/emobushfan.asp (last visited Apr. 13, 2015),
and Defendant Walker serves as a North Carolina District Court
Judge, see District Court Judge Doretta L. Walker, Durham County District
14,
The
North
Carolina
Court
System,
http://
www.nccourts.org/County/Durham/Staff/DCJudges/dlwalker.asp
visited Apr. 13, 2015).
(last
Defendants Nettles and Briggs serve as
Senior Assistant County Attorneys assigned to the Durham County
Department of Social Services.
See Staff Listing, Durham County,
http://dconc.gov/government/departments-a-e/county-attorney/staff
-listing (last visited Apr. 13, 2015).
The Complaint alleges:
[Plaintiff] was charged with [a]bandonment and illegally
had his due process rights denied. He was jailed without
any hearing on using his Veterans Administration
Disability Compensation as required by United States
[f]ederal [l]aws. [Plaintiff] has over $20,000 worth of
illegal state debt because the North Carolina Child
[S]upport Agency is using his Disability Compensation to
make his [c]hild support a major portion of his living
4
expenses.
It is illegal to use Veterans Disability
Compensation for anyone else other than the disabled
veteran.
The VA actually gives spouses and children
their own allowance, and when the twice married Cheryl
Jones was asked why she did not seek those funds she
responded “she did not want them.”
(Docket Entry 6 at 1.)
As a result, Plaintiff alleges that he
“lost his job, his home, and then his tax returns.”
(Id.)
Based
on the foregoing, Plaintiff alleges violations of the Due Process
Clause
of
the
Fourteenth
Amendment,
the
Veterans
Disability
Compensation Act, the Veterans Benefits Act of 2010, and the
Americans with Disabilities Act (ADA).
(Id. at 2.)
Plaintiff
seeks damages in the amount of ten million dollars and, further,
for the Court to “[v]acate the [c]harges filed against reasons of
retaliation by Defendants.”
(Id.)
Although a cause of action exists for deprivations of federal
constitutional and statutory rights, see generally Wyatt v. Cole,
504 U.S. 158, 161 (1992) (discussing 42 U.S.C. § 1983), Plaintiff
has failed to include any allegations in the Complaint concerning
any of the individual Defendants (see Docket Entry 6 at 1-32) and
thus his Complaint fails to state a claim as to those Defendants.
In the alternative, all the individual Defendants enjoy absolute
immunity from suit under the circumstances presented.
As to Defendants Bushfan and Walker, judges enjoy absolute
immunity for
actions
taken
in
their
judicial
capacity.
See
generally Mireles v. Waco, 502 U.S. 9, 9-12 (1991). Such “immunity
applies even when the judge is accused of acting maliciously and
5
corruptly,” Pierson, 386 U.S. at 554, and may only be overcome for
actions not taken in the judge’s judicial capacity or those taken
in the complete absence of all jurisdiction, see Mireles, 502 U.S.
at 11.
Although Plaintiff does not describe the nature of his
claims as to Defendants Bushfan and Walker (see Docket Entry 6 at
1-2), he has attached several court documents concerning his child
support nonpayment which contain Defendant Walker’s signature (id.
at 17, 19, 28-30).
any
allegations
Based on that documentation, and the absence of
to
suggest
otherwise,
the
Court
infers
that
Plaintiff seeks to sue Defendants Bushfan and Walker for their
apparent role in adjudicating his child support cases.
Judicial
immunity bars any such claim against Defendants Bushfan and Walker.
Defendants Nettles and Briggs also enjoy absolute immunity
from suit.
Although Plaintiff’s Complaint provides no allegations
concerning Defendants Nettles and Briggs, the Court presumes that,
based on their positions as county attorneys for the Durham County
Department
of
Social
Services,
Plaintiff
seeks
to
sue
these
Defendants for initiating civil proceedings to collect unpaid child
support. “[P]rosecutors are absolutely immune from liability under
§ 1983 for their conduct in initiating a prosecution and in
presenting the State’s case insofar as that conduct is intimately
associated with the judicial phase of the criminal process.” Burns
v. Reed, 500 U.S. 478, 486 (1991) (internal citation and quotation
marks omitted). Although Defendants Nettles and Briggs do not hold
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the title of prosecutor, “agency officials performing certain
functions analogous to those of a prosecutor should be able to
claim absolute
immunity
with
respect
Economou, 438 U.S. 478, 515 (1978).
to
such
acts,”
Butz
v.
The process of initiating a
judicial proceeding and presenting the state’s case to enforce
child support obligations represents a prosecutorial function.
See, e.g., Davis v. Self, 547 F. App’x 927, 932 (11th Cir. 2013)
(concluding that state officials who initiate civil child support
proceedings
enjoy
absolute
immunity
from
suit
for
damages).
Therefore, prosecutorial immunity bars any claim against Defendants
Nettles and Briggs related to their decision to bring proceedings
against Plaintiff for unpaid child support.
Next, sovereign immunity bars Plaintiff’s claim against the
State of North Carolina. “Section 1983 provides a federal forum to
remedy many deprivations of civil liberties, but it does not
provide a federal forum for litigants who seek a remedy against a
State for alleged deprivations of civil liberties.
Amendment bars such suits . . . .”
Police, 491 U.S. 58, 66 (1989).
The Eleventh
Will v. Michigan Dep’t of State
States and state agencies thus do
not constitute “persons” subject to suit under § 1983, id. at 6771, and, for this reason, the Court should dismiss Plaintiff’s
claims against the State of North Carolina.
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Notwithstanding
the
various
immunity
doctrines
discussed
above, or to the extent that Plaintiff’s Complaint also seeks
injunctive relief, the Complaint still fails to state a claim.
Plaintiff’s Complaint refers generally to the Veterans Disability
Compensation Act and the Veterans Benefits Act of 2010 to support
his contention
compensation
that
payments
Defendants
in
(Docket Entry 6 at 1-2.)
improperly
calculating
included
child
disability
support
payments.
Although veterans benefits have been
exempted from, inter alia, taxation and creditors’ claims, see 38
U.S.C. § 5301(a)(1), the United States Supreme Court has addressed
Plaintiff’s position and concluded that this provision does not
prevent a state from considering such benefits to calculate child
support payments, see generally Rose v. Rose 481 U.S. 619, 630-34
(1987).
In that regard, “[v]eterans’ disability benefits compensate
for
impaired
earning
capacity
and
are
intended
to
provide
reasonable and adequate compensation for disabled veterans and
their families.” Id. at 630 (internal citation and quotation marks
omitted) (emphasis in original).
Accordingly, “state contempt
proceedings to enforce a valid child support order coincide with
Congress’ intent to provide veterans’ disability compensation for
the benefit of both [the veteran] and his dependents.”
Id. at 631;
see also Case v. Dubaj, Civ. A. No. 08–347, 2011 WL 3806291, at *4
(W.D. Pa. Aug. 29, 2011) (unpublished) (“[T]the majority of courts
8
that have considered the issue have agreed with Rose that veterans’
disability benefits are not exempt from claims for alimony, spousal
support and child support.”).
In sum, Plaintiff’s contention that
Defendants
law
violated
federal
by
considering
his
veterans
disability benefits in calculating his child support payments lacks
merit.2
As a final matter, given that Plaintiff’s Complaint warrants
dismissal, the Court will deny Plaintiff’s Motion to Appoint
Counsel.
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 2) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE
COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint
Counsel (Docket Entry 3) is DENIED.
2
As noted above, Plaintiff’s Complaint also cites to the ADA.
(Docket Entry 6 at 2.) In light of the Supreme Court’s holding in
Rose, discussed above, and the fact that Congress passed the ADA to
allow disabled individuals to participate fully in society, not to
exclude them from obligations inherent to such participation, see
generally 42 U.S.C. § 12101 (congressional findings and purpose as
to ADA), Plaintiff has also failed to state a claim under the ADA.
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IT IS RECOMMENDED that this action be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and (iii).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 22, 2015
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