WARREN v. TOLBERT, ET AL

Filing 36

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 11/17/2017; that Defendants' motion to dismiss (Doc. 18 ) is GRANTED and that this action is DISMISSED WITHOUT PREJUDICE. All remaining motions by Warren (Docs. 12 , 17 , 25 , 30 , 32 , 33 , and 34 ) are DENIED WITHOUT PREJUDICE as moot. This decision disposes of all remaining claims in this action, and the Clerk of Court is directed to close this case. (Sheets, Jamie)

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

TINIKA S. WARREN,
Plaintiff,
v.
THE CITY OF GREENSBORO, BRAD
TOLBERT, TERRI JONES, MARK
WAYMAN, and DONALD FOSTER,
Defendants.

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1:16cv1401

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action arising out of the City of Greensboro’s
condemnation of a residence occupied by Plaintiff Tinika Warren.
Before the court is the motion of Defendants City of Greensboro,
Brad Tolbert, Terri Jones, Mark Wayman, and Donald Foster to
dismiss for lack of subject matter jurisdiction and failure to
state a claim.

(Doc. 18.)

Warren, appearing pro se, has filed a

response (Doc. 21) as well as several “supplements” to her response
(Docs. 22, 23, and 24).

Warren has also filed a host of other

miscellaneous

notices,

declarations.

motions,

(Docs. 25 through 35.)

and

“cease

and

desist”

Because Defendants’ motion

is dispositive, these other motions will be denied as moot, and
the action will be dismissed.
I.

BACKGROUND
The facts, viewed in the light most favorable to Warren as

the non-moving party, show the following: 1
As of December 2016, Warren resided at 922 Lincoln Street in
Greensboro.

On December 8, 2016, following notice and hearing,

the Greensboro Minimum Housing Standards Commission (“Commission”)
adopted an ordinance to demolish the residence after it had been
found substandard and unfit for human habitation and occupancy.
(Doc. 19-1 at 1-2.)

The order of condemnation contained detailed

factual findings, including that the residence had been inspected
by the City of Greensboro on June 23, 2015, notice had been given
to Warren, a hearing had been held on July 28, 2015, multiple
violations were found, an order to repair had been issued, and the
owner had failed to comply with the order.

(Id. at 3-4.)

As a

result, the Commission ordered that the owner had 90 days from
December 8, 2016, to repair or demolish the building and that,
failing

either,

dwelling.

the

inspector

(Id. at 4-5.)

would

demolish

and

remove

the

This gave the owner until March 8, 2017,

to repair or demolish the structure.

(Id. at 5.)

Warren appealed the Commission’s order to the Guilford County

1

Warren’s complaint purports to span multiple documents (Docs. 2, 4-8,
13, 14, and 16). Most of these documents are collections of various
legal authorities and are improper for inclusion in a pleading.
Nevertheless, the court considers them, given Warren’s pro se status.
Moreover, Defendants have filed copies of the orders and decisions of
the Greensboro Minimum Housing Standards Commission and the Guilford
County Superior Court, of which the court takes judicial notice.
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989)
(noting that “[t]he most frequent use of judicial notice of ascertainable
facts is in noticing the content of court records”).

2

Superior Court.

On March 6, 2017, after briefing and a hearing,

the Guilford County Superior Court rejected the appeal.
2 at 1-2.)

(Doc. 19-

Specifically, the court adopted the findings of fact

and affirmed the conclusions of law of the Commission.

(Id.)

The

court also granted injunctive relief, pursuant to N.C. Gen. Stat.
160A-393(m), to require Warren to vacate the property and to permit
the City of Greensboro to demolish it.

(Id.)

Warren moved for reconsideration.
hearing on May 15, 2017.

Her motion came on for

(Doc. 19-3 at 1.)

But Warren failed to

appear, despite the fact that she had made ten filings with the
court since its initial order.

(Id.)

denied the motion for reconsideration.

Consequently, the court
(Id. at 1-2.)

The City of Greensboro then moved to dismiss Warren’s notice
of appeal.
19-4.)

That motion came on for hearing on June 7, 2017.

Again, Warren failed to appear.

(Id.)

(Doc.

The court granted

the City’s motion and dismissed Warren’s notice of appeal pursuant
to the North Carolina Rules of Appellate Procedure for failure to
prosecute.

(Id.)

Warren apparently was proceeding on two fronts, as she filed
the present action on December 13, 2016.

(Doc. 1.)

Her pro se

complaint, using the forms of the court, alleges that the City of
Greensboro attempted to “humiliate” her and her family through
“fraud,

corruption

allegations

are

and

harassment.”

conclusory

and
3

(Doc.

rambling,

2

at

2.)

especially

if

The
one

considers all the “supplements” Warren attempts to include as part
of the complaint. She claims the City violated her “Constitutional
amendment Rights of PROPERTY, LIFE, LIBERTY AND THE PURSUIT OF
HAPPINESS.”

(Doc. 2-1 at 23.)

In her civil cover sheet, she

invokes federal question jurisdiction but failed to complete the
section requiring that she state the statute under which she is
filing.

(Doc. 3.) 2

In her pleadings, she claims the court has

jurisdiction under “28:1331,” “Rule 71.1 Condemning Real or/+
Personal Property,” and “18 U.S.C. § 242.”
1

at

17.)

“Compensation

Elsewhere,
Act

+

she

Relocation

(Doc. 2 at 1; Doc. 2-

references
Act,”

“14th

“URA,”

“Discrimination under ‘color of law” + HUD laws.”

ADA

Amendment,”
ACT”

and

(See Doc. 21 at

1.) Warren seeks $25.2 million, an apology, a television broadcast
of her case, and “[a]ccommendations [sic] under the ‘ADA ACT.”
(Doc. 2 at 5.) In her later filings, she also seeks reimbursement
for moving and renting expenses that she has incurred as a result
of the condemnation.
II.

(Doc. 23 at 6.)

ANALYSIS
“When reviewing a pro se complaint, federal courts should

examine carefully the plaintiff’s factual allegations, no matter
how inartfully pleaded, to determine whether they could provide a

2

Warren also checked the box noting that both she and Defendants are
citizens of North Carolina, thus demonstrating that diversity
jurisdiction is unavailable to her. (Id.)

4

basis for relief.

In addition, in order to determine whether the

claim of a pro se plaintiff can withstand a motion to dismiss, it
is

appropriate

to

look

any

the

additional

face

of

the

plaintiff.”

Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258 (4th

Cir.

(citations

(unpublished

filed

table

by

to

made

omitted)

materials

complaint

allegations

1997)

in

beyond

the

decision).

However, the liberal construction of a pro se plaintiff’s pleading
does not require the court to ignore clear defects in pleading,
Bustos v. Chamberlain, No. 3:09–1760–HMH–JRM, 2009 WL 2782238, at
*2 (D.S.C. Aug. 27, 2009), or to “conjure up questions never
squarely presented in the complaint,” Brice v. Jenkins, 489 F.
Supp. 2d 538, 541 (E.D. Va. 2007) (internal quotation marks and
citation omitted).

Nor does it require that the court become an

advocate for the unrepresented party.

Weller v. Dep’t of Soc.

Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Defendants offer several arguments in support of their motion
to dismiss.
Defendants

Collectively, they raise two main challenges.
contend

that

Warren’s

complaint

is

barred

First,
by

the

doctrine of res judicata because it seeks to re-litigate issues
finally decided in the underlying State condemnation proceedings.
Second,

they

contend

that

the

court

lacks

subject

matter

jurisdiction because the complaint is so lacking in substance as
to fail to state a claim for relief under federal law and that any
challenge

Warren

could

conceivably
5

said

to

have

raised

is

prohibited by the Rooker-Feldman doctrine. 3

Warren’s response

fails to address any of these arguments, objects only “under
constitutional grounds [of] Life, Liberty, Pursuit of Happiness
ADA ACT,” and seeks entry of default ostensibly for Defendants’
failure to file an answer to her complaint.

(Doc. 21 at 1-3.)

For the reasons that follow, the court agrees with Defendants.
A.

Subject Matter Jurisdiction

A court must consider its subject matter jurisdiction as a
“threshold matter” prior to addressing the merits of the case.
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94–95
(1998); Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474, 480 (4th Cir. 2005).

“The plaintiff has the burden

of proving that subject matter jurisdiction exists.”

Evans v.

B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647
(4th Cir. 1999) (citing Richmond, Fredericksburg & Potomac R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991)).

“When a

defendant challenges subject matter jurisdiction pursuant to Rule
12(b)(1), ‘the district court is to regard the pleadings as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary
judgment.’”

Id. (quoting Richmond, Fredericksburg & Potomac R.

3

The doctrine arises from Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1982).

6

Co., 945 F.2d at 768).

“The district court should grant the Rule

12(b)(1) motion to dismiss ‘only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail

as

a

matter

of

law.’”

Id.

(quoting

Richmond,

Fredericksburg & Potomac R. Co., 945 F.2d at 768).
Warren alleges jurisdiction under 28 U.S.C. § 1331.

Federal

question jurisdiction exists where an action arises under the
Constitution, laws, or treaties of the United States.
§ 1331.

28 U.S.C.

Under the “well-pleaded complaint rule,” a federal court

may exercise federal jurisdiction “only when a federal question is
presented

on

complaint.”
(1987).

the

face

of

the

plaintiff's

properly

pleaded

Caterpillar Inc. v. Williams, 482 U.S. 386, 392

The failure to reference a federal law in the complaint

is not controlling.

Club Comanche, Inc. v. Gov't of Virgin

Islands, 278 F.3d 250, 259 (3d Cir. 2002) (citing N. Am. Phillips
Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.
1978))).

However,

the

plaintiff

must

set

allegations to give rise to a federal right.
F.3d at 259.

forth

sufficient

Club Comanche, 278

To determine whether a plaintiff alleged a federal

claim under such circumstances, courts will “look to the pleading
requirements established in the statutes from which the causes of
action

arise,

or

in

courts'

interpretations

of

the

pleading

requirements of those statutes.” Id.
A

claim

invoking

federal

question
7

jurisdiction

“may

be

dismissed for want of subject-matter jurisdiction if it is not
colorable, i.e., if it is ‘immaterial and made solely for the
purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and
frivolous.’ ”

Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006)

(quoting Bell v. Hood, 327 U.S. 678, 682–83 (1946)); Crosby v.
City of Gastonia, 635 F.3d 634, 643 (4th Cir. 2011) (noting that
a federal claim may be “so ‘plainly insubstantial’ or ‘entirely
frivolous’

as

to

be

manifestly

outside

federal

jurisdiction”

(quoting Lovern v. Edwards, 190 F.3d 648, 656 (4th Cir. 1999)));
Davis v. Pak, 856 F.2d 648, 652 (4th Cir. 1988).
Here,

Warren

makes

only

an

oblique

reference

to

her

“Constitutional amendment Rights of PROPERTY, LIFE, LIBERTY AND
THE PURSUIT OF HAPPINESS.”

(Doc. 2-1 at 23.)

refers to the “14th Amendment.”

(Doc. 21 at 1.)

Elsewhere, she
These generalized

references are insufficient to articulate any cognizable claim of
deprivation.
Warren also mentions the “ADA ACT.”

In her prayer for relief

she seeks “[a]ccommendations [sic] under the ‘ADA ACT.”
at 5.)

(Doc. 2

Assuming this refers to the Americans with Disabilities

Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., this claim fails
as well.

At a minimum, to state a claim under the ADA, a plaintiff

must allege sufficient facts to make plausible that she suffers
from

a

disability

qualified

for

the

(or

is

benefit

perceived
in

to

do

question,
8

so),
and

is

was

otherwise
unlawfully

discriminated against on the basis of her disability.

See Baird

ex rel. Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999).

Warren’s

complaint is devoid of any factual matter that would even suggest
any of these.
Warren

invokes

“Rule

71.1

Condemning

Property” and 18 U.S.C. § 242.

Real

or/+

Personal

(Doc. 2 at 1; Doc. 2-1 at 17.)

Presumably, as to the former she is referring to Federal Rule of
Civil Procedure 71.1.

Because this is a rule of procedure,

however, it does not provide a substantive cause of action and
thus cannot serve as a basis for relief.

Similarly, § 242 is a

criminal law and provides no civil cause of action.
Finally, Warren cites “discrimination under ‘color of law’
and HUD laws” as well as the “Compensation Act + Relocation Act”
and “URA.”
Uniform

(Doc. 21 at 1.)

Relocation

This appears to be a reference to the

Assistance

and

Real

Property

Acquisition

Policies Act of 1970, 42 U.S.C. §§ 4601–4655, which Warren argues
entitles her to reimbursement for costs associated with moving and
renting that she incurred after the Greensboro residence was
condemned.

However, this act “creates no individually enforceable

rights” and does not provide a cause of action.

Clear Sky Car

Wash LLC v. City of Chesapeake, Va., 743 F.3d 438, 444 (4th Cir.
2014).
For

these

reasons,

Warren’s

complaint,

including

all

“supplements,” is so wholly insubstantial and frivolous that it
9

fails to raise a claim over which the court can exercise subject
matter jurisdiction.

In the alternative, it fails to plausibly

state a claim upon which relief can be granted and should be
dismissed under Federal Rule of Civil Procedure 12(b)(6).
B.

Rooker-Feldman

Even if the complaint could be construed to raise a cognizable
claim, the relief Warren seeks – damages arising from the fact
that the City of Greensboro condemned the residence in which she
was apparently living – seeks to collaterally attack the underlying
State court condemnation proceedings and orders and is thus barred
by the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine is a jurisdictional bar that
“prohibits the United States District Courts, with the exception
of habeas corpus actions, from ‘sit[ting] in direct review of state
court decisions.’”

See Jordahl v. Democratic Party of Va., 122

F.3d 192, 199 (4th Cir. 1997) (quoting D.C Court of Appeals v.
Feldman, 460 U.S. 462, 483 n.16 (1983)).

“The doctrine extends

not only to . . . claims presented or adjudicated by the state
courts but also to claims that are ‘inextricably intertwined’ with
a state court judgment.”
87).

Id. (quoting Feldman, 460 U.S. at 486–

A federal claim is “inextricably intertwined” with a State

court ruling where “in order to grant the federal plaintiff the
relief sought, the federal court must determine that the [state]
court judgment was erroneously entered or must take action that
10

would render the judgment ineffectual.”
The
doctrine

Supreme
applies

Court

has

clarified

to

“cases

brought

Id. at 202.
that
by

the

Rooker-Feldman

state-court

losers

complaining of injuries caused by state-court judgments rendered
before

the

district

court

proceedings

commenced

and

inviting

district court review and rejection of those judgments.”

Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The purpose of the doctrine is to promote respect between the
federal and state courts in our system of dual sovereignty.

See

Vulcan Chem. Tech., Inc. v. Barker, 297 F.3d 332, 343 (4th Cir.
2002).

The effect of the Rooker-Feldman doctrine is to divest a

federal district court of subject matter jurisdiction to review
state court judgments.

See Jordahl, 122 F.3d at 200.

Only the

Supreme Court of the United States has jurisdiction to review State
court judgments.

See Brown & Root, Inc. v. Breckenridge, 211 F.3d

194, 198–99 (4th Cir. 2000).
In a related context, Rooker-Feldman has been applied to
foreclosure proceedings before the Clerk of Superior Court and
appeals of those proceedings in State court.

See, e.g., Brumby v.

Deutsche Bank Nat’l Trust Co., No. 1:09CV144, 2010 WL 617368, at
*1,

3

(M.D.N.C.

Feb.

17,

2010)

(applying

Rooker-Feldman

to

foreclosure proceedings before the Clerk of Superior Court of
Guilford County pursuant to N.C. Gen. Stat. § 45-21.16, which
characterizes such a decision by the Clerk as a “judicial act”).
11

“In the context of a state court foreclosure proceeding, Rooker–
Feldman prohibits claims brought in federal court that may ‘succeed
only to the extent that the state court wrongly decided the
foreclosure action.’”

Poindexter v. Wells Fargo Bank, N.A., No.

3:10cv257, 2010 WL 3023895, at *2 (W.D.N.C. July 29, 2010) (quoting
Postma v. First Fed. Sav. & Loan of Sioux City, 74 F.3d 160, 162
(8th Cir. 1996)).
For the same reasons, the Rooker-Feldman doctrine applies
here to the extent Warren’s complaints of injury are merely a
result of the City of Greensboro’s carrying out of the Commission’s
condemnation order. See Foster v. Columbia Gas Transmission Corp.,
131 F. Supp. 2d 822, 826 (N.D.W. Va.), aff'd, 238 F.3d 411 (4th
Cir. 2000) (finding that the Rooker-Feldman doctrine applied to
state court condemnation proceedings when they were challenged in
federal court). In that case, the basis for her injury is the State
court

orders

themselves.

In

those

orders,

the

State

court

expressly adopted the findings of fact and conclusions of law
entered by the Commission, affirmed those actions, and dismissed
Warren’s appeal.

For this court to permit Warren to proceed on

claims that are inconsistent with the State court orders would
require it to conclude that the State court orders as to the
condemnation proceedings were wrongly decided.

As a result, to

the extent Warren’s claims challenge the State court orders, they

12

are

barred

by

the

Rooker-Feldman

doctrine

and

this

court

is

divested of subject matter jurisdiction.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Defendants’ motion to dismiss
(Doc. 18) is GRANTED and that this action is DISMISSED WITHOUT
PREJUDICE.

All remaining motions by Warren (Docs. 12, 17, 25, 30,

32, 33, and 34) are DENIED WITHOUT PREJUDICE as moot.
This decision disposes of all remaining claims in this action,
and the Clerk of Court is directed to close this case.

/s/ Thomas D. Schroeder
United States District Judge
November 17, 2017

13