POLIDI v. TRUAX
Filing
6
MEMORANDUM, OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 3/10/2017. The Request that Proceedings Be Stayed (Docket Entry 5 ) is DENIED. Plaintiff's Application to Proceed In Forma Pauperis (Dock et Entry 1 ) is GRANTED for the limited purpose of considering this recommendation of dismissal. IT IS RECOMMENDED that Plaintiff's federal claims arising under 42 U.S.C. §§ 1983 & 1985, and his request for a declaratory judgment pur suant to 28 U.S.C. § 2201, be dismissed as frivolous and for failing to state a claim under 28 U.S.C. § 1915(e)(2). IT IS FURTHER RECOMMENDED that Plaintiff's remaining state-law claims be dismissed without prejudice pursuant to 28 U.S.C. §1367(c)(3). (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD POLIDI,
Plaintiff,
v.
WAYNE TRUAX, in each of his
official and individual
capacities,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:17cv54
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed In Forma Pauperis (Docket Entry 1), in conjunction with his
pro se Complaint (Docket Entry 2), as well as on Plaintiff’s
Request that Proceedings Be Stayed (Docket Entry 5).
For the
reasons that follow, the Court will deny Plaintiff’s Request that
Proceedings Be Stayed, and will grant Plaintiff’s Application to
Proceed In Forma Pauperis for the limited purpose of recommending
dismissal of his federal claims under 28 U.S.C. § 1915(e)(2) as
frivolous and for failing to state a claim and dismissal without
prejudice of his state claims under 28 U.S.C. § 1367(c).
LEGAL STANDARD
“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 [C]ourt
shall dismiss the case at any time if the [C]ourt determines . . .
the action . . . is frivolous . . . [or] fails to state a claim on
which relief may be granted.”
28 U.S.C. § 1915(e)(2).
“[A] complaint, containing as it does both factual allegations
and legal conclusions, is frivolous where it lacks an arguable
basis either in law or in fact.”
319, 325 (1989).
not susceptible
Neitzke v. Williams, 490 U.S.
“The word ‘frivolous’ is inherently elastic and
to
categorical
definition.
. .
.
The
term’s
capaciousness directs lower courts to conduct a flexible analysis,
in light of the totality of the circumstances, of all factors
bearing upon the frivolity of a claim.”
(some
internal
quotation
marks
Nagy, 376 F.3d at 256–57
omitted).
frivolousness, the Court may “apply common sense.”
at 954.
-2-
In
determining
Nasim, 64 F.3d
Alternatively, a plaintiff “fails to state a claim on 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) (emphasis added)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are ‘merely consistent with’
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.
of
action,
suffice.”
Threadbare recitals of the elements of a cause
supported
by
mere
conclusory
statements,
do
not
Id.1
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) (citation
and internal quotation marks omitted), a standard of liberal
construction does not apply “where, as here, the pro se plaintiff
is a practicing or former attorney,” Polidi v. Bannon, ___ F. Supp.
3d ___, ___, 2016 WL 8135476, at *1 n.1 (E.D. Va. Dec. 28, 2016)
(collecting cases that “declined [to] give liberal construction” to
pleadings prepared by current or former attorneys). In any event,
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
-3-
BACKGROUND
This action constitutes one of many lawsuits that Plaintiff
has filed in federal court in connection with the 2014 surrender of
his North Carolina law license.
See Polidi v. Bannon, ___ F. Supp.
3d ___, ___, 2016 WL 8135476, at *2 (E.D. Va. Dec. 28, 2016) (“This
case is the fifth lawsuit that [P]laintiff, a disbarred attorney,
has filed in this district in connection with his disbarment by the
North Carolina State Bar . . . or the United States Patent and
Trademark Office . . . .”).
As a neighboring district court noted
in dismissing one such suit, Plaintiff filed an affidavit of
surrender (the “Affidavit of Surrender”) in a North Carolina state
court, and that court entered a consent order of disbarment (the
“Consent Order”) in relation to Plaintiff’s surrender of his North
Carolina law license. See id.; see also Disciplinary Orders, North
Carolina State Bar, https://www.ncbar.gov/handlers/DisciplinaryOr
derHandler.ashx?url=\Polidi,%20Richard%20Order%20of%20Disbarment.
pdf&keyword= (last visited Mar. 9, 2017) (providing copy of the
Affidavit of Surrender (cited herein as (Aff. ¶ ___) or (Aff. at
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.’”
(first quoting Erickson, 551 U.S. at 94; then quoting Iqbal, 556
U.S. at 679)).
Given that understanding, even when construed
liberally, the Complaint fails under Section 1915(e)(2).
-4-
___)) and Consent Order (cited herein as (Consent Ord. at ___))).2
In the Affidavit of Surrender, Plaintiff affirmed the following:
1. I desire to resign and hereby tender my license to
practice law in North Carolina.
2. My resignation is freely and voluntarily rendered, and
is not the result of coercion or duress. I am fully aware
of the implications of submitting my resignation.
3. I am aware that there is a pending investigation by
the North Carolina State Bar [(the “Bar”)] regarding
allegations that I used approximately $16,000.00 of funds
received in connection with the representation of a
client [(the “Client”)] for the benefit of myself and the
[C]lient, when the [C]lient had assigned the right to
those entrusted funds to a third party.
4. I acknowledge that the material facts upon which the
investigation referenced above is predicated are true.
2
Plaintiff does not contest the authenticity of the Affidavit
of Surrender or Consent Order. (See Docket Entry 2.) Rather, the
Complaint specifically relies on the “Consent Order which disbarred
the Plaintiff” in support of the allegations that Defendant
misrepresented certain facts in the North Carolina State Bar’s
prosecution of Plaintiff. (Id. ¶ 12.) Under these circumstances,
the Court may consider the Consent Order and Affidavit of Surrender
in its Section 1915(e)(2) review. See Daye v. Bounds, 509 F.2d 66,
68 (4th Cir. 1975) (“[A] district court may properly consider court
records for the purpose of determining whether an action brought in
forma pauperis must be dismissed as frivolous.”); see also Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(recognizing that, when considering whether a complaint fails to
state a claim on which relief may be granted, courts ordinarily
examine “the complaint in its entirety, as well as other sources
. . . [such as] documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice”);
Witthohn v. Federal Ins. Co., 164 F. App’x 395, 396 (4th Cir. 2006)
(ruling that, when determining whether a complaint fails to state
a claim, “a court may consider official public records, documents
central to plaintiff’s claim, and documents sufficiently referred
to in the complaint so long as the authenticity of these documents
is not disputed”).
-5-
5. I am submitting my resignation because I know that if
disciplinary charges were predicated upon the misconduct
under investigation, I could not successfully defend
against them.
(Aff. ¶¶ 1-5 (emphasis added).)
The corresponding Consent Order
provides, inter alia, that:
In September 2012, [Plaintiff] received approximately
$16,000.00 in connection with the representation of [the]
[C]lient. At the time he received the funds, [Plaintiff]
was aware that [the] [C]lient had assigned the right to
those funds to a third party. [Plaintiff] used the funds
for the benefit of himself and the [C]lient without the
third party’s authorization. [Plaintiff] ultimately
transferred to the [C]lient an amount at least equal to
the entrusted funds he had received in connection with
the case.
. . .
[Plaintiff]’s unauthorized use of entrusted funds for
personal benefit or the benefit of third parties was in
violation of Rule 1.15-2(j) and Rule 8.4(c) of the Rules
of Professional Conduct.
. . . [Plaintiff]’s misconduct constitutes grounds for
discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2).
[Plaintiff] has engaged
warranting disbarment.
in
professional
misconduct
. . .
[Plaintiff] is DISBARRED from the practice of law in
North Carolina.
(Consent
Ord.
at
1-2.)
Plaintiff
signed
and
notarized
the
Affidavit of Surrender (Aff. at 1), and he and his attorney signed
the Consent Order (Consent Ord. at 2).
Notwithstanding Plaintiff’s sworn, notarized concession that
he committed professional misconduct warranting disbarment through
-6-
his misuse of entrusted funds, Plaintiff filed the instant action
against Defendant, “an investigator employed by the [Bar]” (Docket
Entry 2, ¶ 5), seeking damages and declaratory relief (id. at 8),
for Defendant’s alleged role as “the principal investigator in
connection with [the allegedly] fundamentally unfair and dishonest
prosecution
of
the
[P]laintiff
by
the
Bar”
(id.
¶
6).
Specifically, the Complaint alleges that Defendant misrepresented
to the Bar’s Grievance Committee (the “Grievance Committee”) that
“[P]laintiff had deprived [the] [C]lient of funds that belonged to
th[e] [C]lient and which th[e] [C]lient was entitled to receive”
(id.
¶
7
(emphasis
added)),
when
he
knew
that
“[P]laintiff
transferred to the [C]lient funds to which the [C]lient had zero
right to receive” (id. ¶ 8).3
3
The Complaint asserts that the Grievance Committee bears
responsibility for finding probable cause of misconduct and
enacting discipline in North Carolina’s attorney grievance process.
(Docket Entry 2, ¶ 9.)
According to the Bar’s website, the
“Grievance Committee acts much like a grand jury, considering
complaints in private and deciding whether there is probable cause
to refer a case to the Disciplinary Hearing Commission (DHC), an
independent tribunal, for public trial and possible sanctions.”
Roadmap of the Disciplinary Process, North Carolina State Bar,
https://www.ncbar.gov/lawyer-discipline/roadmap-of-the-disciplina
ry-process/ (last visited Mar. 9, 2017). “When it finds probable
cause to believe that misconduct occurred warranting more
discipline than a censure, the Grievance Committee can refer the
grievance to the Disciplinary Hearing Commission for trial. The
Grievance Committee does not have authority to impose suspension or
disbarment.
Cases involving misappropriation of client or
fiduciary funds . . . are [among] the ones most frequently referred
to the DHC for trial.” Id. (citations omitted).
-7-
In other words, the Complaint alleges that Plaintiff did not
misappropriate
the
misrepresented
to
Client’s
the
funds,
Grievance
as
Defendant
Committee,
but
Plaintiff misappropriated a third-party’s funds.
allegedly
instead
that
(See id. ¶¶ 8
(“The truth is that the [C]lient had zero right to the subject
funds.
[Defendant] knew that the [C]lient was never entitled to
receive those funds.”), 10 (“[Defendant] vouched for statements in
which any mention whatsoever that there had existed assignment of
right to the subject funds by the [C]lient had been omitted.
[Defendant] likewise vouched for the veracity of statements that
the
subject
funds
belonged
to
the
[C]lient,
knowing
those
statements to be false.”), 13 (“The [C]lient had zero right to the
subject funds, yet retained the funds transferred thereto in their
entirety and further demanded an additional sum in excess of
sixteen thousand dollars from the Plaintiff.
Upon information and
belief, the [C]lient misrepresented to the Bar that no funds had
ever been transferred to the [C]lient.”).)
The Complaint states
that “[t]he fact that the funds did not belong to the [C]lient was
critical to the decisions made by the Plaintiff, and to the
application of the law to the facts in every respect.”
(Id. ¶ 11.)
The Complaint further alleges that Defendant presented an
investigative report (the “Investigative Report”) to the Grievance
Committee that asserted (in addition to the foregoing alleged
misrepresentation) that (1) “online withdrawals were made from the
-8-
Plaintiff’s trust account when, in fact, the bank did not even
provide online access” (id. ¶ 20), (2) “cash withdrawals were made
when no cash withdrawals were made from the trust account” (id.),
and
(3)
a
“consent
injunction”
constituted
“evidence
of
misappropriation by the [P]laintiff” when that “was never the
purpose of the Consent [Injunction], nor was it ever a finding”
(id. ¶ 21).
According to the Complaint, as a result of these
alleged misrepresentations, the Grievance Committee found probable
cause of attorney misconduct and “authorize[d] the Bar prosecutor
to proceed without the Grievance Committee’s taking any other
action.”
(Id.; see also id. (“Upon information and belief, the
decisions of the Grievance Committee were based substantially, if
not
exclusively,
on
the
contents
of
the
[I]nvestigative
[R]eport.”).)
Based on these allegations, the Complaint asserts federal
claims under 42 U.S.C. §§ 1983 & 1985 for the alleged deprivation
of Plaintiff’s federal constitutional due process rights (id. ¶¶
23-28), as well as state-law claims for breach of fiduciary duty
(id. ¶¶ 29-32), abuse of process (id. ¶¶ 33-37), conversion (id. ¶¶
38-41), and interference with contract (id. ¶¶ 42-47).
As relief,
the Complaint requests damages and “a declaratory judgment finding
that the violations [alleged therein] took place.”
-9-
(Id. at 8.)
DISCUSSION
A. Federal Claims
The Complaint first purports to state a claim for violation of
Plaintiff’s constitutional due process rights under 42 U.S.C. §§
1983 & 1985 (id. ¶¶ 23-28), seeking damages against Defendant in
both
his
individual
caption)).
and
official
capacity
(id.
at
1
(case
“[A] suit for damages against a state official in his
official capacity is actually a suit against his office and, thus,
the State.”
Eller v. Kaufman, No. 2:11CV31, 2012 WL 3018295, at *8
(W.D.N.C. July 24, 2012) (citing Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989)).
“[A]bsent waiver by the State or
valid congressional override, the Eleventh Amendment bars a damages
action against a State in federal court.
This bar remains in
effect when State officials are sued for damages in their official
capacity.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985) (internal
footnote and citation omitted).
Sections 1983 and 1985 provide for suits against a “person,”
not a state.
exercise
its
See 42 U.S.C. §§ 1983, 1985.
power
to
abrogate
a
Thus, “Congress did not
state’s
Eleventh
Amendment
immunity when it enacted 42 U.S.C. §[§] 1983 [& 1985].”
Coffin v.
South Carolina Dep’t of Soc. Servs., 562 F. Supp. 579, 585 (D.S.C.
1983)
(explaining
that,
“just
as
neither
[the
state
agency
defendant] nor the Board as alter egos of the state is a ‘person’
-10-
within the meaning of 42 U.S.C. § 1983, neither one is a ‘person’
within the meaning of 42 U.S.C. §§ 1985 and 1986”).
because
a
suit
against
Defendant
in
his
Therefore,
official
capacity
constitutes a suit against the State, and the term “person” under
Sections 1983 and 1985 does not encompass the State, Plaintiff’s
official capacity claims fail in such obvious fashion as to qualify
as frivolous. See Woodward v. Chautauqua Cty., No. 15-CV-246, 2016
WL
4491712,
at
*2
(W.D.N.Y.
July
5,
2016)
(concluding
that
“[n]either a state agency nor a state officer acting in his
official capacity is subject to suit under 42 U.S.C. § 1983[ or] §
1985” (citing Posr v. Court Officer Shield No. 207, 180 F.3d 409
(2d Cir. 1999))), recommendation adopted, 2016 WL 4475044, at *1
(W.D.N.Y. Aug. 25, 2016).
In regard to the individual capacity claims, “[t]o state a
claim for relief . . . under [42 U.S.C.] § 1983, [Plaintiff] must
establish
that
[he
was]
deprived
of
a
right
secured
by
the
Constitution or laws of the United States, and that the alleged
deprivation was committed under color of state law.”
American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).
Here,
the Complaint alleges that “[Defendant] has been an investigator
employed by the [Bar] at all times relevant to this matter” (Docket
Entry 2, ¶ 5), that the Bar is “a State agency” (id. ¶ 26), and
that Defendant deprived Plaintiff of his Constitutional due process
rights while acting “under color of North Carolina law” (id.).
-11-
However,
the
Complaint
further
asserts
that
Defendant’s
investigation of Plaintiff “constituted a substantial deprivation
of
substantive
and
procedural
due
process
and
caused
[P]laintiff to surrender his license to practice law.”
(emphasis added).)
“[P]laintiff
the
(Id. ¶ 6
Notably, though, the Complaint concedes that
transferred
to
the
[C]lient
funds
to
which
the
[C]lient had zero right to receive” (id. ¶ 8), and the Consent
Order states that “[Plaintiff]’s unauthorized use of entrusted
funds for personal benefit or the benefit of third parties was in
violation of Rule 1.15-2(j) and Rule 8.4(c) of the Rules of
Professional Conduct” (Consent Ord. at 1 (emphasis added)), which
“constitute[d] grounds for discipline pursuant to N.C. Gen. Stat.
§ 84-28(b)(2)” (id. at 2) and “warrant[ed] disbarment” (id.)4
4
In 2014, the year that Plaintiff surrendered his law
license, Rule 1.15-2(j) of the North Carolina Rules of Professional
Conduct provided that “[a] lawyer shall not use or pledge any
entrusted property to obtain credit or other personal benefit for
the lawyer or any person other than the legal or beneficial owner
of that property.” N.C. R. Prof’l Conduct 1.15-2(j) (2014). In
turn, Rule 8.4(c) of the North Carolina Rules of Professional
Conduct provides that “[i]t is professional misconduct for a lawyer
to . . . engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
N.C. R. Prof’l Conduct 8.4(c) (2017).
Further, N.C. Gen. Stat. § 84-28(b) provides:
The following acts or omissions by a member of the [Bar]
or any attorney admitted for limited practice under [N.C.
Gen. Stat. §] 84-4.1, individually or in concert with any
other person or persons, shall constitute misconduct and
shall be grounds for discipline whether the act or
omission occurred in the course of an attorney-client
relationship or otherwise:
. . .
-12-
Thus, when examining the Complaint against the backdrop of the
Consent Order, the Complaint concedes that Plaintiff committed the
misconduct
(i.e.,
transferring
entrusted
funds
to
the
Client
without authorization) for which he surrendered his law license.
Under these circumstances, assuming Defendant misrepresented
certain facts regarding Plaintiff’s misconduct in the Investigative
Report
submitted
to
the
Grievance
Committee,
those
misrepresentations cannot qualify as material causes of Plaintiff’s
surrender of his law license.
Rather, Plaintiff concedes in the
Complaint that he transferred funds to the Client when the Client
possessed “zero” right to those funds (Docket Entry 2, ¶ 8), and
the Consent Order and Affidavit of Surrender confirm that Plaintiff
surrendered his law license because of that misconduct (see Aff. ¶¶
3-4 (admitting misappropriating entrusted funds)); Consent Ord. at
1 (asserting that Plaintiff “used the funds [that he knew that the
Client had assigned to a third party] for the benefit of himself
and
the
[C]lient
without
the
third
party’s
authorization”)).
Moreover, the Affidavit of Surrender expressly conceded “that the
material facts upon which the investigation [of Plaintiff was]
predicated are true.”
(Aff. ¶ 4.)
(2) The violation of the Rules of Professional Conduct
adopted and promulgated by the Council in effect at the
time of the act[.]
N.C. Gen. Stat. § 84-28(b).
-13-
Put another way, any misrepresentations Defendant made to the
Grievance Committee regarding Plaintiff’s professional misconduct
could not qualify as “material” to the Bar’s investigation of
Plaintiff,
because
the
Complaint
establishes
that
Plaintiff
mishandled the subject funds (see Docket Entry 2, ¶¶ 7-18), which
led to his disbarment (Consent Ord. at 1-2).
Affidavit
of
Surrender
confirms
that
Furthermore, the
Plaintiff
voluntarily
surrendered his law license because he misused entrusted funds.
(Aff. ¶¶ 2-5.)
Therefore, Plaintiff’s claim that he surrendered
his law license because of Defendant’s participation in the Bar’s
investigation lacks plausibility.
See Iqbal, 556 U.S. at 680
(deeming the complaint deficient for failing to “nudge[]” its
claims “across the line from conceivable to plausible” (internal
quotation marks omitted)).
The
Complaint
next
asserts
that
Plaintiff
possessed
a
“substantive and procedural due process right to have the facts
known to be true by the Bar to be presented thereby to the
Grievance Committee.”
Complaint,
the
(Docket Entry 2, ¶ 15.)
deprivation
of
that
“right”
According to the
allegedly
caused
Plaintiff “damage” (id.), because “[t]he fact that the funds did
not belong to the [C]lient was critical to the decisions made by
the Plaintiff, and to the application of the law to the facts in
every respect” (id. ¶ 11).
-14-
Again, these assertions fail to state a plausible claim for
relief in light of the Consent Order and concessions contained in
the Complaint.
To begin, the Complaint lacks any factual content
suggesting that the Grievance Committee would have declined to
refer Plaintiff’s case to the Disciplinary Hearing Commission for
further
proceedings
if
Defendant
had
told
it
that
the
misappropriated funds belonged to a third-party rather than the
Client.
(See id. ¶¶ 1-47.)
Indeed, the Complaint does not even
contest the appropriateness of Plaintiff’s disbarment for misusing
entrusted
funds.
(See
id.)
Moreover,
the
applicable
administrative rules provide that “[d]isbarment shall be considered
where the defendant is found to engage in . . . misappropriation or
conversion
of
assets
of
any
kind
to
which
the
defendant
or
recipient is not entitled, whether from a client or any other
source.”
27 N.C. Admin. Code 1B.0114(w)(2) (emphasis added).
The
Complaint’s allegation that the Grievance Committee would have
recommended lesser punishment than referring the matter to the
Disciplinary Hearing Commission to consider disbarment, if it knew
that Plaintiff misappropriated a third-party’s funds rather than a
client’s funds, therefore fails to state a plausible claim for
relief.
See Iqbal, 556 U.S. at 678 (“[A] complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” (internal quotation marks
omitted)).
-15-
In
sum,
the
Complaint’s
allegations
that
Defendant’s
misrepresentations to the Grievance Committee deprived Plaintiff of
his due process rights by causing him to surrender his law license,
fail to state a claim for relief under Section 1983.
In regard to the individual capacity Section 1985 claim, the
Complaint appears to proceed under Section 1985(3), as it offers no
facts to support a claim under Section 1985(1) or (2).5
With
respect to Section 1985(3), the Complaint must show:
(1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law to all, (4)
and which results in injury to the plaintiff as (5) a
consequence of an overt act committed by the defendants
in connection with the conspiracy.
5
“Section 1985(1) prohibits conspiracies to prevent
individuals from holding office or discharging official duties.”
Stankowski v. Farley, 251 F. App’x 743, 747 n.1 (3d Cir. 2007).
Meanwhile, Section 1985(2) addresses acts, in state court
proceedings, involving “force, intimidation, or threat” against
witnesses or jurors to obstruct justice because of race or other
group-related bias.
42 U.S.C. § 1985(2); see also Kush v.
Rutledge, 460 U.S. 719, 725-26 (1983) (explaining that the relevant
portion of Section 1985(2) “contains language requiring that the
conspirators’ actions be motivated by an intent to deprive their
victims of the equal protection of the laws,” further understood as
“racial,
or
perhaps
otherwise
class-based,
invidiously
discriminatory animus” (internal quotation marks omitted));
Stankowski, 251 F. App’x at 747 n.1 (“Section 1985(2) prohibits
conspiracies to prevent witnesses from testifying in court,
injuring witnesses who have testified, or attempting to influence
or injure grand or petit jurors.”).
The Complaint lacks
allegations regarding any such type of conduct. (See Docket Entry
2.)
-16-
Thomas v. The Salvation Army S. Territory, 841 F.3d 632, 637 (4th
Cir. 2016) (internal quotation marks omitted).
Here, the Complaint’s only allegations to support the Section
1985 claim involve the conclusory assertions that (1) “the conduct
of [Defendant] was motivated by other parties such that [Defendant]
acted in collusion, in concert, and in agreement with other parties
in [depriving Plaintiff of his Constitutional rights]” (Docket
Entry 2, ¶ 27), (2) that “[t]he agreement was fueled by malice”
(id.),
and
connection
(3)
with
that
the
that
agreement
[P]laintiff” (id. ¶ 28).
allege
that
“[o]vert
Defendant
actions
by
resulted
in
[Defendant]
injury
to
in
the
Importantly, the Complaint fails to
acted
out
of
any
racial
class-based, invidiously discriminatory animus.”
or
“specific
Thomas, 841 F.3d
at 637 (internal quotation marks omitted); see also
Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971) (concluding that Section
1985(3) requires proof of “some racial, or perhaps otherwise
class-based,
invidiously
conspirators’ action”).
discriminatory
animus
behind
the
The Complaint further provides no factual
content suggesting that Plaintiff could demonstrate such animus.
(See Docket Entry 2.)
Therefore, the Complaint’s threadbare,
conclusory assertions of a conspiracy do not plausibly assert a
claim
under
(“Threadbare
Section
recitals
1985(3).
of
the
See
Iqbal,
elements
-17-
of a
556
U.S.
cause
of
at
678
action,
supported by mere conclusory statements, do not suffice [to state
a claim for relief].”).
Under
these
circumstances,
the
Court
should
dismiss
Plaintiff’s individual capacity Section 1985 claim, pursuant to 28
U.S.C. § 1915(e)(2), for failure to state a claim.
Lastly, the Complaint requests “[t]hat the Court enter a
declaratory
judgment
finding
[therein] took place.”
that
the
violations
(Docket Entry 2 at 8.)
summarized
Federal law
provides that, “[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether
or not further relief is or could be sought.”
28 U.S.C. § 2201(a).
However, “[d]eclaratory judgments are not meant simply to
proclaim
that
one
party
is
liable
to
another.”
Johnson
v.
McCuskey, 72 F. App’x 475, 478 (7th Cir. 2003) (citing Loveladies
Harbor, Inc. v. United States, 27 F.3d 1545, 1553–54 (Fed. Cir.
1994) (en banc)).
Rather, declaratory judgments “define the legal
rights and obligations of the parties in the anticipation of some
future conduct.”
Id. at 477 (emphasis added).
In this regard,
under the facts alleged [in a complaint], there must be
a substantial continuing controversy between parties
having adverse legal interests.
The plaintiff must
allege facts from which the continuation of the dispute
may be reasonably inferred. Additionally, the continuing
controversy may not be conjectural, hypothetical, or
contingent; it must be real and immediate, and create a
-18-
definite, rather than speculative threat of future
injury. The remote possibility that a future injury may
happen is not sufficient to satisfy the “actual
controversy” requirement for declaratory judgments.
Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985) (citations
omitted).
“Basically, the question in each case is whether the
facts alleged, under all the circumstances, show that there is a
substantial
controversy,
between parties
having
adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment.”
Golden v. Zwickler, 394 U.S.
103, 108 (1969) (internal quotation marks omitted).
Here, the Complaint’s allegations involve Defendant’s alleged
misrepresentations to the Grievance Committee at an unspecified
time in the past (see Docket Entry 2, ¶¶ 5-22), leading to
Plaintiff’s 2014 surrender of his law license (Aff. at 1 (bearing
time-stamp of “2014 JUL 22 P 12:23”); Consent Ord. at 1 (bearing
time-stamp of “2014 JUL 22 P 12:24”)).
The Complaint contains no
factual matter indicating that Plaintiff may suffer a future injury
from Defendant’s conduct (see Docket Entry 2), much less a “real
and
immediate”
future
injury,
Emory,
756
F.2d
at
1552.
“Considering that [P]laintiff’s allegations do not reflect an
actual, continuing controversy with . . . [D]efendant that will
result in a future injury to [Plaintiff], [P]laintiff’s claim for
declaratory
frivolous.”
relief
is
without
legal
merit
and
is
therefore
May v. Patterson, Civ. Action No. 12-703, 2013 WL
-19-
4776345, at *6 (S.D. Ala. Sept. 5, 2013) (citing Golden, 394 U.S.
at 108).
B. State-Law Claims
Given the dismissal of the Complaint’s federal claims, the
Complaint’s remaining state-law claims should not proceed in this
Court.
Federal courts “have original jurisdiction of all civil
actions arising under the Constitution[ and] laws . . . of the
United States.”
which
the
28 U.S.C. § 1331.6
[federal]
courts
have
“[I]n any civil action of
original
jurisdiction,
the
[federal] courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a).
However, a federal court “may decline to
exercise supplemental jurisdiction over a claim” if it dismisses
6
Federal courts also maintain “original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States.” 28 U.S.C. § 1332(a). Under
Section 1332(a), original “jurisdiction does not exist unless each
defendant is a citizen of a different State from each plaintiff.”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original). In this case, the Complaint asserts that
Plaintiff and Defendant are both citizens of North Carolina (Docket
Entry 2, ¶¶ 1-2), thus precluding original jurisdiction over this
action under Section 1332(a). Moreover, the Complaint expressly
invokes only federal question jurisdiction. (See Docket Entry 2,
¶ 4.)
-20-
“all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c).
Here, as discussed above, Plaintiff’s federal claims (i.e.
those claims arising under the Constitution and laws of the United
States) warrant dismissal for frivolousness and failure to state a
claim. The Court thus lacks original jurisdiction over this action
under Section 1331, and may appropriately decline to exercise
supplemental jurisdiction over Plaintiff’s state-law claims.
See
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (explaining
that, pursuant to 28 U.S.C. § 1367(c)(3), a federal court has
“discretion to dismiss or keep a case when it ‘has dismissed all
claims over which it has original jurisdiction,’” and that “[t]here
are no situations wherein a federal court must retain jurisdiction
over
a
state
law
claim,
which
would
jurisdiction” (emphasis in original)).
not
by
itself
support
Under the circumstances of
this case, the Court should decline to exercise such jurisdiction
and dismiss Plaintiff’s state-law claims, but without prejudice to
his pursuit of such claims in an appropriate forum.
D. Request that Proceedings Be Stayed
In his Request that Proceedings Be Stayed, Plaintiff asserts
that the “present action is distinguishable” from certain “pending
cases” in the Fourth Circuit and Federal Circuit, but that those
“pending cases are nonetheless material to the present action
regarding factual issues and for other reasons.”
-21-
(Docket Entry 5
at 1.)
A review of the four cited cases reveals that they involve
different defendants and issues than this case. Further, Plaintiff
has not explained why the Court should stay this case pending the
outcomes of those cases, or even how those outcomes could impact
this case.
The undersigned Magistrate Judge will therefore deny
the Request that Proceedings Be Stayed.
CONCLUSION
In summary, the Court should dismiss Plaintiff’s federal
claims for frivolousness and failure to state a claim, the Court
should
decline
to
exercise
supplemental
jurisdiction
over
Plaintiff’s remaining state-law claims, and Plaintiff has not
provided sufficient grounds for staying this action.
IT IS THEREFORE ORDERED that the Request that Proceedings Be
Stayed (Docket Entry 5) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Application to Proceed
In Forma Pauperis (Docket Entry 1) is GRANTED for the limited
purpose of considering this recommendation of dismissal.
IT IS RECOMMENDED that Plaintiff’s federal claims arising
under 42 U.S.C. §§ 1983 & 1985, and his request for a declaratory
judgment pursuant to 28 U.S.C. § 2201, be dismissed as frivolous
and for failing to state a claim under 28 U.S.C. § 1915(e)(2).
-22-
IT IS FURTHER RECOMMENDED that Plaintiff’s remaining state-law
claims be dismissed without prejudice pursuant to 28 U.S.C. §
1367(c)(3).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 10, 2017
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