CUMMINGS v. POWELL et al
Filing
39
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/13/2015, ORDERED that Plaintiff's Application to Proceed IFP (Docket Entry 1 ) is GRANTED for the limited purpose of con sidering this recommendation of dismissal. RECOMMENDING that the Court dismiss Plaintiff's Section 1983 claim under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim and for seeking relief from an immune defendant; in addition, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state-law claims. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN D. CUMMINGS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CATHY POWELL, et al.,
Defendants.
1:15CV545
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed IFP (Docket Entry 1) in conjunction with his pro se
Complaint (Docket Entry 2).1
The Court will grant Plaintiff’s
instant
limited
Application
for
the
purpose
of
recommending
dismissal of his federal cause(s) of action for failure to state a
claim
and
seeking
monetary
relief
from
an
immune
defendant;
additionally, the Court should decline to exercise supplemental
jurisdiction over Plaintiff’s state-law claims.
1
Although Plaintiff has filed numerous Supplemental
Complaints (see Docket Entries 20, 22, 23, 24, 27, 34), he has not
yet obtained the required permission to make such filings, see Fed.
R. Civ. P. 15(d) (“On motion and reasonable notice, the court may,
on just terms, permit a party to serve a supplemental pleading . .
. .” (emphasis added)). Therefore, this Memorandum Opinion only
addresses Plaintiff’s original Complaint - the operative complaint
- to determine whether it violates 28 U.S.C. § 1915(e)(2)(B). It
appears, however, that Plaintiff’s supplemental filings also suffer
from serious defects, including the fact that they would not
qualify for joinder with his instant Complaint, otherwise properly
invoke this Court’s subject-matter jurisdiction, and/or state a
viable 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.”
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 . . . fails to state a claim on which relief may be
granted; or [] seeks monetary relief against a defendant who is
immune from such relief.”
28 U.S.C. § 1915(e)(2).
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’
2
a defendant's liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’”
(quoting Twombly, 550 U.S. at 557).
Id.
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.”
Dismissal
defendant
for
generally
Id.2
seeking
applies
monetary
to
relief
situations
against
in
which
an
immune
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
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
cases, immunity doctrines and special defenses, available only to
public officials, preclude or severely limit the damage remedy”).
ANALYSIS
Plaintiff’s Complaint stems from allegations regarding a real
estate transaction. (See Docket Entry 2 at 2 (“FRAUD OF DEFENDANTS
IN THE PURCHASE OF REALTY”).) The Complaint alleges that Plaintiff
attempted to purchase a piece of realty from Defendant Shumate and
that Defendant Shumate impermissibly altered the contract terms.
(Id.)
Further, Plaintiff’s Complaint alleges that Defendant Morse
initiated an action to have Plaintiff evicted from the realty and
that Defendant Judge Long wrongfully denied Plaintiff’s injunction
to prevent such eviction.
identify
the
Defendants.
nature
or
(Id.)
The Complaint does not clearly
legal
(See id. at 1-4.)
basis
for
any
claims
against
Liberally construing Plaintiff’s
Complaint, the undersigned understands Plaintiff to raise a 42
U.S.C. § 1983 claim against Defendant Judge Long and various statelaw claims against the remaining Defendants.3
3
The Court should
To the extent Plaintiff attempts to state a Section 1983
claim against Defendants Powell, White, Deanna and Scott Lilly,
John Does 2014-2015 Finance Committee, Sam Page, Nancy Vaughn, City
of Greensboro, and Bruce Pierce, the Complaint fails to make any
factual allegations against them. (See Docket Entry 2 at 2-4.)
Accordingly, the Court should dismiss any Section 1983 claim
against these Defendants for failure to state a claim.
In
addition, to the extent the Complaint attempts to assert a Section
1983 claim against Defendants Cross Point Church of Greensboro,
Morse, Shumate, and the Brooks Pierce Law Firm, the Complaint does
not allege facts that would tend to establish that these Defendants
qualify as state actors (see id.); thus, the Court should dismiss
any Section 1983 claim against these Defendants on that ground, see
4
dismiss Plaintiff’s Section 1983 claim against Defendant Judge Long
for seeking monetary relief from an immune defendant and should
decline to exercise supplemental jurisdiction over Plaintiff’s
remaining state-law claims.
As to Plaintiff’s Section 1983 claim against Defendant Judge
Long, the Court should dismiss for seeking monetary relief from an
immune defendant.
“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.”
502 U.S. 9, 11 (1991).
Mireles v. Waco,
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.”
1992).
King v. Myers, 973 F.2d 354, 357 (4th Cir.
Here, Plaintiff alleges that Defendant Judge Long denied
Plaintiff’s injunction to stop his eviction.
(Docket Entry 2 at
2.) Ruling on a motion constitutes the quintessential judicial act
to which judicial immunity applies.
Accordingly, the Court should
dismiss Plaintiff’s Section 1983 claim against Defendant Judge
Long.
Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (requiring
state action for a Section 1983 claim).
5
As to Plaintiff’s remaining state-law claims, the Court should
decline to exercise supplemental jurisdiction.4 Federal courts may
exercise jurisdiction over certain state-law claims - even after
the
original
disappears;
jurisdiction.
basis
for
however,
a
federal
court
subject
need
not
matter
jurisdiction
retain
supplemental
See 28 U.S.C. § 1367(c); Shanaghan v. Cahill, 58
F.3d 106, 110 (4th Cir. 1995) (“[T]rial courts enjoy wide latitude
in determining whether or not to retain jurisdiction over state
claims when all federal claims have been extinguished.”).
In
deciding whether to retain jurisdiction, courts have considered
various factors, including: the convenience and fairness to the
parties, the existence of any underlying issues of federal policy,
comity, and considerations of judicial economy.
See Shanaghan, 58
F.3d at 110.
In reviewing the factors, declining supplemental jurisdiction
represents the best course of action in this case.
In particular,
upon the dismissal of all federal-law claims in the early stages of
the litigation, declining supplemental jurisdiction best promotes
the values of economy, convenience, fairness, and comity.
See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)
4
Plaintiff has made no showing that diversity jurisdiction
applies to these state-law claims. See Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994) (requiring the party
asserting jurisdiction to establish it). Accordingly, it appears
that only supplemental jurisdiction could serve as the basis for
subject matter jurisdiction. See 28 U.S.C. § 1367.
6
(“[I]n
the
usual
case
in
which
all
federal-law
claims
are
eliminated before trial, the balance of factors to be considered
. . . - judicial economy, convenience, fairness, and comity - will
point toward declining to exercise jurisdiction over the remaining
state-law
claims.”).
Therefore,
pursuant
to
28
U.S.C.
§ 1367(c)(3), the Court should decline to exercise supplemental
jurisdiction over Plaintiffs’ state-law claims.
IT
IS
THEREFORE
ORDERED
that
Plaintiff’s
Application
to
Proceed IFP (Docket Entry 1) is GRANTED for the limited purpose of
considering this recommendation of dismissal.
IT IS RECOMMENDED that the Court dismiss Plaintiff’s Section
1983 claim under 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim and for seeking relief from an immune defendant; in addition,
the Court should decline to exercise supplemental jurisdiction over
Plaintiff’s state-law claims.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 13, 2015
7
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