HESTER v. COLVIN et al

Filing 19

ORDER ON RECOMMENDED RULING signed by MAG/JUDGE JOE L. WEBSTER on 1/26/2017. ORDERED that in forma pauperis status is granted for the sole purpose of entry of this Order. FURTHER ORDERED that Plaintiff motions (Docket Entries 5 , 12 , [1 5], 16 ) are DENIED as moot in light of the undersigned's recommendation. RECOMMENDED that the Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), and (to the extent discussed herein as to several claims), for lack of jurisdiction. (Butler, Carol)

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

VALERIE HESTER,
Plaintiff,
v
CAROLYN W. COLVIN, et al.,
Defendants.

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1,:1,6CY41.0

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court upon pro
ptoceed

iru þrrza

paaperis

se

Plaintiff Valerie Hestet's application to

(ItrP) pursuant to 28 U.S.C. $ 1915(a). (Docket Entry 8.) Plaintiff

has also filed additional documents before the Coutt whereby Plaintiff seeks an expedited

ruling (Docket Enties 5, 1.2,15) and copy of her complaint (Docket Entry 16).1 Fot the
reasons that follow, the Court will grant Plaintiff IFP status

fot the sole putpose of entering

this Order and tecommend that the Complaint be dismissed as frivolous. The remaining
motions will be denied âs moot.

Plaintiff seeks IFP status, thus the Coutt will teview the Complaint to determine
whether dismissal is appropdate because it is ftivolous ot malicious, or fails to state a claim
upon which relief can be granted. 28 U.S.C. $ 1915(e)(2)@); Michaø u. Cltarleston Cnfl., 5.C.,
434 F.3d 725,728 (4th

t

Cir. 2006). "Dismissal of an action . . . is apptopriate when it lacks an

The Coutt has docketed this documents as motions

arguable basis

in law or fact."

Jones u. Stemheimer,3ST

F. App'" 366,368 (4th Cir. 201,0). A

frivolous complaint "lacks an arg',nble basis in either law or ín fact." Neitqke u. lYilliams, 490
U.S. 319, 325 (1989);

see

aho Nagy u. Federal Med. Ctr. Batner,376

F3d 252,256-57 (4th Cn.

2004) ("The wotd 'frivolous' is inherently elastic and not susceptible to categotical definition.
. . . The term's capaciousness ditects lower courts to conduct a flexible analysis,

in light of the

totality of the circumstances, of all factots bearing upon the ftivolity of a clum." (some internâl
quotation marks omitted)).
Alternatively, a complaint that does not "contain sufficient factual m^tter, accepted
true, to 'state a claim to relief that is plausible on its face"' must be dismissed. Ashnoft
556 U.S. 662, 678 Q009) (quoung BellArlantic u. Twombþ,550 U.S. 544,570 Q007)).

u.

as

Iqbal,

"A claim

has facial plausibility when the plaintiff pleads factual content that allows the coutt to draw

the teasonable infetence that the defendant is liable fot the misconduct."

Id.

The "court

accepts all well-pled facts as true and consttues these facts in the light most fâvotable to the

plaintiff in weighing the legal sufficiency of the complaint," but does not considet "legal
conclusions, elements of a cause of action, . . . bare assertions devoid of factual enhancementf,]
. . . unu/atranted inferences, unfeasonable conclusions, or
Consamerafairs.con, 1nc.,591

argumeflts." Nemet

Cheuro/et,

Ltd.

u.

F.3d 250,255 (4th Cir. 2009) (citations omitted). In other wotds,

the standard requires a plainttff

to artculate

facts, that, when accepted as true, demonstrate

the plaintiff has stated a claimthat makes it plausible he is entitled to relief. Franci¡ u. Ciacorzelli,

588 F.3d 1.86, L93 (4th Cit. 2009) (quoting Iqbal,556 U.S. at 678, and Twombþ,550 U.S. at

557). Pro ¡e complaints

^re

to be constued libetally and "must be held to less stringent

2

srandards than formal pleadings drafted by lawyers." Erickson

u.

Pardut,551 U.S. 89,94 Q007)

(internal quotation omitted).

Here, PlainufPs complaint (and a plethora of supplemental documents) mostly lacks

suffìcient, coherent factval ailegations

to

support a plausible claim against Defendants.

,{.lthough somewhat incomprehensible, the toot of PlaintifPs action seems to stem from her

of

disagreement with the Court's ruling on its review of a fina| decision of the Commissioner

Social Secudty denying her d.isability

claim. In that action, the Court adopted

the

recommendation of the undersigned to reverse the Commissioner's decision and remand the

mâtter to the ,{,dministrative Law Judge for further proceedings.
1,:1,4CY751,,2016

WL

547761,4, at x2 (À4.D.N.C. Sept. 29,201,6).

See Hester

u. Coluin, No.

To the extent remand

was

ordered, such ruling was in Plaintiffs favor and consistent with her own motion. (See Case

No. 1:14CV751., Docket Entry 9.) It appears in the cause of action now pending befote the
Court, Plaintiff seeks recourse against several individuals involved

including Carolyn Colvin, former Commissioner

in her disability

claim,

of the Social Secutity Administation;

Durham County Social Services, the North Catolina Disability Detetmination Services; Ripley
Rand, former United States Âttorney for the Middle District of North Carcltna; Robert

S.

Drum, Special ,\ssistant United States ,{ttorney; the North Caroltna Department of Health
and Human Services; and the Social Security Administration. Plaintiff states that Defendants
engaged

in "fr.aud, corruption, bias, malptactice, [and] negligence þy] falsifying

RFCs, MRFCs, and other deceitful documents the defendants placed

physicals,

in plaintiffs file . .

.

without frst obtaining her informed consent[.]" (Complaint, Docket Ettt"y 1 at 1'.) Plaintiff
further asserts that Defendants "failed to order any intetnal diagnostic imaging regatding any

.)

of the plaintifPs chief complaints"

^nd

that she has been "depdved of her rights to obtain

appropriate healthcare." (Id. at 1.-2.) She futther alleges that Defendants have breached
standards

of

carc and have engaged

in cdminal acts entitLing Plaintiff to monetary

damages

in

the amount of 3.5 mill-ion dollars. (Id. at 1-3.) Plaintiff also asks the Court to award her social

security benefits as her "uterine tumors are gtowinglatger" and she is "becoming more and
more visually impaired, can barely walk, [and] feet[s] dizzy, weak, faint, light headedness and
fatigue when standing and walkingl.]" @ocket Entry 3 at3.)

To the extent Ptaintiff desires the Court engage in appellate review of her disability
claim, the Court has already done

so.

See

Herter, 20L6

WL

547761'4,

Plaintiffs claims against the Social Security Administration (an
government) are bared under the doctrine of soveteign immunity.
Gou. ofFed. Reserue 51s.,1,32

States or its agencies

ú x2. Additionally,

^gency

for the

federal

Research Triangle u. Bd.

of

tr. 3d 985, 987 (4th Clr. 1,997). "Individuals may not sue the United

without theit consent." Carter

u.

WL2468351,atx4 (D.S.C. June2,201,4) (citing FDIC

Erain, No. 0:14-CV-00865-TLì7,2014
u.

Me1er,510 U.S. 471.,484-86 (1994)).

This also applies to Defendants Catolyn Colvin, Ripley Rand and Robett S. Drum working in
their official capacittes as federal employees. SaperiorFibre Prod.,Inc. u. United Statu Dep't
Treawry,l56 F. S,rpp. 3d 54,63 P.D.C .201,6) ("As

a genetal

of the

rule . . . fedetal employees acting

in their official capacities âre protected from suit by the doctrine of sovereign immunity, unless
the United States has expressly waived that immunity."); Boron Oil Co. u. Downie,873 F.2d 67,
71,

(4th Cir. 1939) (internal quotations and citation omitted) ("An action against a fedetal

agency or official

will be treated

^s ^fl

action against the sovereign

would expend itself on the public treâsury
4

ot

domain,

if

the judgment sought

or intetfere with the public

administration, or

if

the effect of the judgment would be to testrain the Government from

or compel it to act.").

actsng,

Additionatly, any claims against these Defendants permitted undet the Fedetal Tort
Claims

Act ("FTCA") should be dismissed. Thtough the FTCÂ,

sovereign immunity for certain tott claims against the United States.

"!Øhen federal employees are sued
employment,

fot damages for

See

harms caused

Congress has waived
28 U.S.C. S 1346(bX1).

in the course of

their

the TFTCA] generally authorizes substitution of the United States as the

defendant." Hai

u. Castaneda,559 U.S. 799,801.

Q010). In otdet fot a district court to have

jurisdiction over FTCA claims, however, the claimant must

frst

present the claim

to the

appropriate federal agency, and the agency must have denied the claim. 28 U.S.C. $ 2675(a);
28 C.F.R. S 14.2(bX1); Bullard u. Scotland Health Care

at *4 (À4.D.N.C. Sept. 3, 2009).

"ff]h.

S1ts.,

tequirement

No. 1:09CV362,2009 ìøL 2872717

of filing an administrative claim is

judsdictional and may not be waived." Ahmed u. United State430 F.3d 514, 516 (4th Cu.1,994)
(internal quotations and citation omitted). Here, there is no indication hete that Plaintiff
completed administrative exhaustion. Thus, any claims petmitted.under the FTCA should be
denied fot lack of subject mâtter jurisdiction.

As with the federal Defendants, the North Caroltna Disability Detetmination Services

("NCDDS") and the North Carol-ina Department

of Health and Human Services

('NCDHHS") are also immune from Plainufls suit regarding monetary damages. The
Eleventh Amendment, with certain exceptions, ptohibits actions in fedetal court by individuals
against a state unless the state has consented to suit or unless Congtess has lawfully abrogated

the states' Eleventh Amendment immunity. Balknger u. Owens, 352F.3d 842,844-45 (4th Cir.

5

2003). The doctrine of sovereign immunity undet the Eleventh Amendment applies not only

to actions in which the State is a named defendant, but also to actions against its departments,
institutions, and agencies. Gralt
Citl

u.

I-aws,51 F'.3d 426, 430 (4th Cit. 1995) (citing Mt. Heahhl

Sch. Dist. Bd. of E,duc. a. Do1/e,429

U.5.274,280 (1,977) ("This immunity extends

state agericies and other government entities

ptopedy characterized

as 'arm[s]

as

well to

of the State."')).

Thus, a suit against Defendants NCDDS2 andNCDHHS is a suit against the State of

Noth

Caroltna. No consent has been given, nor has immunity been waived; thetefone àîy claims
against these Defendants should be dismissed.

Moreover, Defendant Durham County Department of Social Services appears to be an

improper defendant in this action. Under
sue and be sued.
against a county's
4055831,
201,4

WL

Noth

Carolina law, a county is an entity that can

N.C. Gen. Stat. $ 153A-1,1,. "There is no corresponding statute allowing suit

DSS."

Powellu. Na¡h Ct1t.

DE't

of Soc. Serat,

No. 5:14-CV-281.-trL,201'4WL

x*2 F^D.N.C. July 22,201,4),

report and recommendation adopted,

(E.D.N.C. Aug. 14,

201,4); ¡ee al¡o Mallo1t u. Darham

406271,5

58 N.C. App. 61, 66,293 S.E.2d 285, 288-89 (1,982)

Social Services is not "the county involved,"
claims against

it

("fllh.

No. 5:14-CV-281-FL,
C4l Dç't

of Soc. Serw.,

Durham County Department of

in that it is not a county at all[.]").

Thus, the

should be dismissed. Powe//, 201,4 WL 4055831,, at *2 ("Plaintiffls claims

against Nash County DSS must be dismissed given that

it is an agency or department of Nash

County and does not have the legal capacity to be sued."); Moaa u. Alexander Ct1., No.

,

NCDDS is a part of the division of Vocational Rehabilitation in the Notth Carcltna Deparbnent
of Health and Human Sewices. S ee https: / /www.ncdhhs,gov/divisions/dvrs;
http: / /dds.its. state.nc.us /default.asp.

6

5:09CV19-V, 201,2

WL

252648, at x6 (ì7.D.N.C. Jan. 26, 201,2) (Plaintiffs' claims against

,tlexander County DSS are dismissed given that, pursuant

to North

Caroltna law, the

Department of Social Services, an agency of Alexander County, does not have the legal
capacíty to be sued.").

To the extent Plaintiff

seeks criminal ptosecution against Defendants, such request is

beyond the Court's authority in this civil action. "[T]h. decision whether or not to prosecute,
and what charge to file or bdng before a gtandjury, genetally rests entirely

discretion." Bordenkircheru. Ha1es,434U.5.357,364 (1978);

see

in fthe ptosecutor's]

also U,S. ex re/.

Banku. Co¡¡elin

Il/orld Il/ide Mouing N.V.,741, F.3d 390, 406 (4th Cü. 201,3) (citation omitted)
criminal coûtext,

it is taken for

("[]n

the

granted that prosecutors enjoy substantial discretion with

regard to the persons and offenses they elect to chatge."). As such, Plaintiff as aprivate cittzen
has no "enforceable

rþht to institute acríminalptosecution."

494 (4th Cir. 1990) (citing

Undak

u.

Richard

V.,

41.0

I-.apequ.

Robin¡0n,91,4F.2ð486,

U.S. 614, 61,9 (1,973)). Thus, to the extent

criminal ptosecution is sought, "such allegations have no basis in law." Brown u. United Statey

No. 2:15-CV-40ó5-PMD-MGB, 2016 WL 1104728, at *6 P.S.C. Feb. 29, 201'6), report
recorumendøtion adopted,

2016).

See also

No. 2:15-CV-4065-PMD-MGB,

Hillu. Snn

of

N.

Carolina,

201,6

and

WL 1089385 (D.S.C. Mat. 21.,

No. 1:16CV323,201,6WL 4486168, at x1 (À4.D.N.C.

Aug. 25, 201,6) ("Plaintiff should be awate that nongovernmental parties cannot litigate
criminal complaints)'); Fuller u. Com. of Vo.,51 F.3d 266 (4th Cit. 1995) ("fPltivate citizens
have no right to insist on criminal prosecution.").

In

sum, Plaintiffls claims against sevetal Defendants are bared under immunity

doctrines, or ate claims that are not cognizable under law. Additionally, even given the most

7

liberal pleading requirements, the burden is upon Plaintiff to "set forth facts sufficient to allege
each element of his

claim." Dickson u. Mitrotoft Corþ.,308 F.3d 193,21.3 (4th Cir. 2002),

denied,539 U.S. 953

Q003). Plaintiff has failed to meet the pleading requirements.3

cert.

For the reasons stated hetein,

IT IS HEREBY ORDERED that in þrma þauþeris status is gtanted fot the sole
purpose

of entry of this Order. IT IS FURTHER ORDERED that Plaintiff motions

(Docket Entries 5, 1.2, 15, 1,6) are

DENIED as moot in light of the undersigned's

recommendation.

FURTHERMORE, IT IS RECOMMENDED that the Complaint be dismissed
pursuant to 28 U.S.C. $ 1915(e)(2XB), and (to the extent discussed hetein as to several claims),

for lack of judsdiction.

L

1ñHrcter

Étatce l\ürgistrrÊe Jurlgc

January 26,2017
Durham, North Catolina

3 The Court also finds that Plaintiff has not asserted any plausible state law claims. Even if such
claims could be gleaned from the allegations in Plaintiffs complaint, the Court should decline
jurisdiction over such claims. McHan u. LY/e//¡ Fargo Bank, No. 1:14CV997,2014 WL 7186924, at*4
(I\4.D.N.C. Dec. 17, 2014) ('Because the undersþed has recommended dismissal of all of Plaintiffs'
federal-law claims and only state-law claims remain, the undetsþed will additionally tecommend that
the Court decline to exercise supplemental jurisdiction over Plaintiffs'temaining state-law claims."),

B