Murray, Jr. v. Fussell, Jr.

Filing 3

ORDER: This action is DISMISSED WITHOUT PREJUDICE. Signed by District Judge Martin Reidinger on 07/02/2014. (Pro se litigant served by US Mail.) (klb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00158-MR-DLH

DONNELL EDWIN MURRAY, JR.,

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Plaintiff,
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vs.
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MICHAEL TAYLOR FUSSELL, JR.,
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Defendant.
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________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Complaint [Doc.
1], filed on June 24, 2014. For the reasons stated herein, the Court will sua
sponte dismiss this action.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff brings this action pursuant to the Federal Tort Claims

Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), for damages suffered as a
consequence of the alleged negligence of the Defendant, Officer Michael
Taylor Fussell, Jr., an officer with the Shelby City Police Department in
Shelby, North Carolina. [Doc. 1 at ¶¶ 8, 12, 16]. Specifically, the Plaintiff
alleges that he was injured when the Defendant struck him with a patrol
vehicle while the Plaintiff was attempting to cross a road on foot. [Id. at ¶
16].

II.

STANDARD OF REVIEW
The Plaintiff is not a prisoner, nor is he proceeding in forma pauperis

in this action. Thus, the provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A,
which permit the sua sponte dismissal of complaints which fail to state a
claim, are not applicable in the present case. Ross v. Baron, 493 F. App’x
405, 406 (4th Cir. 2012) (per curiam). Nevertheless, a district court has the
inherent authority to dismiss a frivolous complaint, even when the required
filing fees have been paid. Id.; see also Mallard v. United States Dist.
Court, 490 U.S. 296, 307-08 (1989). Additionally, “because a court lacks
subject matter jurisdiction over an obviously frivolous complaint, dismissal
prior to service of process is permitted.” Ross, 493 F. App’x at 406 (citing
Ricketts v. Midwest Nat'l Bank, 874 F.2d 1177, 1181-83 (7th Cir. 1989);
Franklin v. Or., State Welfare Div., 662 F.2d 1337, 1342-43 (9th Cir. 1981)).
III.

DISCUSSION
The FTCA generally authorizes suits against the United States for

damages for personal injuries or property caused by the negligent or
wrongful acts or omissions of an employee of the United States while
acting within the scope of his office or employment. See 28 U.S.C. §§
1346(b), 2671.

Here, the Plaintiff asserts claims under the FTCA against

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an officer of the Shelby City Police Department, not a United States
employee. Thus, the Plaintiff has failed to allege a claim arising under the
Federal Tort Claims Act, and his Complaint must be dismissed as frivolous.
The Court notes that the Plaintiff’s Complaint is signed by both the
Plaintiff and by Shaun Chappell, who identifies himself as “Counsel by
Special Visitation.”

[Id. at ¶10].

Although admittedly not admitted to

practice law in the State of North Carolina or any other jurisdiction, Mr.
Chappell asserts that he is entitled to represent the Plaintiff in this matter
as the Plaintiff’s “Constitutional Counsel.” [See id. at 39].
Appearances in federal court are governed by 28 U.S.C. § 1654,
which permits parties “[i]n all of the Courts of the United States ... [to] plead
and conduct their own cases personally or by counsel . . . .” 28 U.S.C. §
1654. This section, which codifies the Sixth Amendment's right to counsel,
allows a litigant a choice between representation by counsel and selfrepresentation. See Faretta v. California, 422 U.S. 834 (1975). The term
“counsel” as used in this context, however, refers only to an individual
authorized to practice law. See United States v. Irwin, 561 F.2d 198, 200
(10th Cir. 1977). The right to assistance of counsel does not include the
right to representation by a person unlicensed to practice law.

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United

States v. Taylor, 569 F.2d 448, 451 (7th Cir. 1978); see also United States
v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986) (holding that the defendant
had no right to be represented by non-lawyer); United States v. Wilhelm,
570 F.2d 461, 465 (3d Cir. 1978) (rejecting contention that defendant had
constitutional right “to be represented by a friend who is neither a law
school graduate nor a member of the bar”).

The Court notes that

attempting to represent the legal interests of anyone other than oneself,
unless licensed to practice in the State of North Carolina or admitted
elsewhere and specially admitted, constitutes the unauthorized practice of
law, which is a criminal offense in the State of North Carolina. See N.C.
Gen. Stat. §§ 84-4, 84-8.
Based on the foregoing, the Plaintiff is advised that if he wishes to
proceed pro se in another civil action, whether in this Court or in a North
Carolina state court, he cannot be represented by Mr. Chappell. Rather,
the Plaintiff must file his own complaint, signed solely by him.

ORDER
IT IS, THEREFORE, ORDERED that this action is DISMISSED
WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Signed: July 2, 2014

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