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.
)
)
)
)
)
)
)
)
)
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
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