Jones v. Hill et al

Filing 131

MEMORANDUM AND RECOMMENDATIONS AND ORDER: MEMORANDUM AND RECOMMENDATIONS on 34 , 41 , 52 , 53 , 66 , 72 , 82 , 95 & 128 MOTIONS to Dismiss. (Objections to M&R due by 9/29/2014). ORDER that all further proceeding s in this action, including all discovery, are STAYED pending the District Judge's ruling on this Memorandum and Recommendation and Order. Signed by Magistrate Judge David S. Cayer on 9/11/14. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL NO. 1:13-CV-328-MR-DSC

JUANITA L. JONES aka
JUANITA L. OWENS,

)
)
)
Plaintiff,
)
)
v.
)
)
J. CALVIN HILL, et. al.,
)
)
Defendants,
)
______________________________)

MEMORANDUM AND RECOMMENDATION
AND ORDER

THIS MATTER is before the Court on the Defendants’ respective “Motion[s] to
Dismiss …” (documents ##34, 41, 52, 53, 66, 72, 82, 95 and 128) and the parties’ associated
briefs and exhibits.
On June 17, 2014, this matter was referred to the undersigned Magistrate Judge pursuant
to 28 U.S.C. § 636(b)(1), and these Motions are now ripe for the Court’s consideration.
This action arises from a boundary line dispute brought in Buncombe County District
Court, Charles E. Barnard and Annie M. Barnard v. Juanita L. Jones aka Juanita L. Owens,
Buncombe County File No. 12 CVD 2941. The Court takes judicial notice of a Judgment
entered by District Judge Samuel A. Cathey on April 7, 2014. See document #89.

After

conducting a trial on all issues, Judge Cathey found that Plaintiff (Defendant in the state action)
erected a fence encroaching upon the real property of her neighbors, Defendants Charles and
Annie Barnard (Plaintiffs in the state court action).

Judge Cathey dismissed Plaintiff’s

counterclaim for adverse possession and permanently enjoined her from coming onto the

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Barnards’ property or “directly or indirectly harassing, contacting, bothering, cussing, name
calling or interfering with [them].” Id.

The Judgment also awarded the Barnards $482 in

damages plus costs.
On December 18, 2013, Plaintiff filed this action against the Barnards and District Court
Judges Hill, Young and Kepple who had issued various orders against her. Plaintiff also names
the City of Asheville, Buncombe County, the State of North Carolina, the Buncombe County
Register of Deeds, the Barnards’ surveyor, the Board of Surveyors, four insurance
companies/agents and the Buncombe County District Court. As amended, the Complaint alleges
that all of the Defendants violated two federal criminal statutes, 18 U.S.C. §§ 214 and 242, by
conspiring to violate Plaintiff’s civil rights.
Defendants have moved to dismiss for lack of subject matter jurisdiction on two
independent bases. They assert that there is no private right of action under the federal criminal
statutes and that the Rooker-Feldman doctrine bars Plaintiff’s claims.
Defendants’ Motions have been fully briefed and are ripe for disposition.1
“The subject matter jurisdiction of federal courts is limited and the federal courts may
exercise only that jurisdiction which Congress has prescribed.” Chris v. Tenet, 221 F.3d 648,
655 (4th Cir. 2000), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Subject matter jurisdiction is so limited that federal “[c]ourts have an independent
obligation to determine whether subject matter jurisdiction exists, even when no party challenges
it.” Hertz Corp. v. Friend, 130 S. Ct. 1131, 1193 (2010) (internal citations omitted). “No party

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Defendant City of Asheville’s Motion to Dismiss (document #128) was filed recently and has not been briefed.
Since the issues pertaining to subject matter jurisdiction have been briefed extensively in the other eight pending
Motions to Dismiss and the City’s Motion raises no new issues, the Court will address that Motion in this
Memorandum and Recommendation as well.

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can waive the defect, or consent to [subject matter] jurisdiction. No court can ignore the defect;
rather a court, noticing the defect, must raise the matter on its own.” Wisconsin Dept. of
Corrections v. Schacht, 524 U.S. 381, 389 (1998) (internal citations omitted). See also Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1945 (2009) (“Subject-matter jurisdiction cannot be forfeited or waived
and should be considered when fairly in doubt”) (citing Arbaugh v. Y & H Corp., 546 U.S. 500,
514 (2006); United States v. Cotton, 535 U.S. 625, 630 (2002)). “The burden of persuasion for
establishing ... [subject matter] jurisdiction, of course, remains on the party asserting it.”

Hertz

Corp., 130 S. Ct. at 1194 (internal citations omitted).
Plaintiff has not alleged diversity of citizenship between the parties nor does that basis for
jurisdiction exist.

Therefore, federal subject matter jurisdiction must arise under what is

commonly called “federal question” jurisdiction.
As the Fourth Circuit has stated:
Title 28 U.S.C. § 1331 provides that district courts have subject matter
jurisdiction of every civil action that “arises under the Constitution, laws, or
treaties of the United States.” This means that Congress has given the lower
federal courts jurisdiction to hear only those cases in which a well-pleaded
complaint establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial
question of federal law.
Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606-07 (4th Cir. 2002) (emphasis added).
The Amended Complaint is based upon Plaintiff’s contentions that the state court action and the
orders and judgment entered there violated her constitutional rights. The Rooker-Feldman
doctrine bars Plaintiff from attacking those state court judgments in federal court. This doctrine
provides that “a party losing in state court is barred from seeking what in substance would be
appellate review of the state judgment in a United States District Court, based upon the losing

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party’s claim that the state judgment itself violates the loser’s federal rights.”

Johnson v.

DeGrandy, 512 U.S. 997, 1005-1006, (1994). See also District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co.,, 263 U.S. 413, 416 (1923).
For this reason, the undersigned respectfully recommends that the Complaint be dismissed for
lack of subject matter jurisdiction.
Federal courts have held that 18 U.S.C. §§ 214 and 242 do not provide a private right of
action. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). See also Christian Populist Party
of Arkansas v. Sec'y of State of State of Ark., 650 F. Supp. 1205, 1214 (E.D. Ark. 1986). Since
the Amended Complaint is premised entirely on these federal criminal statutes, there is also no
basis for federal subject matter jurisdiction here.
Accordingly, for both of these reasons, the Motions to Dismiss should be granted.

ORDER
IT IS HEREBY ORDERED that all further proceedings in this action, including all
discovery, are STAYED pending the District Judge’s ruling on this Memorandum and
Recommendation and Order.

RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendants’ respective “Motion[s] to Dismiss …” (documents ##34, 41, 52, 53, 66, 72, 82, 95
and 128) be GRANTED and that the Amended Complaint be DISMISSED as to all Defendants.

NOTICE OF APPEAL RIGHTS
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The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written
objections to the proposed findings of fact and conclusions of law and the recommendation
contained in this Memorandum must be filed within fourteen (14) days after service of same.
Failure to file objections to this Memorandum with the District Court constitutes a waiver of the
right to de novo review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16
(4th Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour,
889 F.2d 1363, 1365 (4th Cir. 1989).

Moreover, failure to file timely objections will also

preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147
(1985); Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells,
109 F.3d at 201; Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and
Order to the pro se Plaintiff; to defense counsel; and to the Honorable Martin Reidinger.
SO ORDERED AND RECOMMENDED.

Signed: September 11, 2014

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