Holcomb v. Nissan North America, Inc. et al

Filing 5

ORDER that Pltf's #1 Complaint fails initial review under 28 U.S.C. 1915(e)(2)(B) for failure to state a claim for relief and shall be DISMISSED WITHOUT PREJUDICE in accordance with the terms of this Order; FURTHER ORDERED that Pltf shall have 30 days in which to amend his Complaint in accordance with the terms of this Order; and if Pltf fails to so amend his Complaint, the matter will be dismissed without prejudice. (Amended Complaint due by 3/9/2024.) Signed by Chief Judge Martin Reidinger on 2/8/2024. (Pro se litigant served by US Mail.)(ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:24-cv-00039-MR-WCM

DEAN ALTON HOLCOMB,

)
)
Plaintiff,
)
)
vs.
)
)
NISSAN NORTH AMERICA, INC.,
)
NISSAN OF HENDERSONVILLE,
)
LLC., DAWUD TALIB MUHAMMAD,
)
DYLAN CHRISMAN, JACK ANDRUS, )
JASMINE MALONE, DEVIN MALONE, )
JOSEPH LNU, FNU HOLCOMB,
)
COREY LNU, KYLE LNU,
)
and GEORGE LNU,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of Plaintiff’s
Complaint [Doc. 1]. See 28 U.S.C. § 1915(e)(2).
I.

BACKGROUND
On February 2, 2024, the pro se Plaintiff Dean Alton Holcomb

(“Plaintiff”) filed this action against Defendants Nissan North America, Inc.,
Nissan of Hendersonville, LLC., Dawud Talib Muhammad, Dylan Chrisman,
Jack Andrus, Jasmine Malone, Devin Malone, Joseph LNU, FNU Holcomb,
Corey LNU, Kyle LNU, and George LNU [Doc. 1]. The Plaintiff brings claims

under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1961-1968, as well as claims for fraud under 18 U.S.C. § 1341,
hate crimes under 18 U.S.C. § 249, and “CFR Title 29, Criminal Conspiracy.”
[Doc. 1]. The Plaintiff seeks a declaratory judgment that Defendant Nissan
of Hendersonville is a corrupt criminal organization as well as actual and
punitive damages. [Id.].
II.

STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must

review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2). In its frivolity review, this
Court must determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless factual
contentions, such as fantastic or delusional scenarios. Neitzke v. Williams,
490 U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must be
construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
the liberal construction requirement will not permit a district court to ignore a
clear failure to allege facts in his Complaint which set forth a claim that is
cognizable under federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).

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III.

DISCUSSION
The Racketeer Influenced and Corrupt Organizations Act “creates civil

liability for those who engage in a pattern of racketeering activity.” GE
Investment Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th
Cir. 2011). Under 18 U.S.C. § 1964(c), “RICO contains a private right of
action for ‘[a]ny person injured in his business or property by reason of a
violation of section 1962 of this chapter.’” Chubirko v. Better Bus. Bureau of
S. Piedmont, Inc., 763 F. Supp. 2d 759, 766 (W.D.N.C. 2011). RICO “does
not cover all instances of wrongdoing. Rather, it is a unique cause of action
that is concerned with eradicating organized, long-term, habitual criminal
activity.” US Airline Pilots Ass’n v. AWAPPA, LLC, 615 F.3d 312, 317 (4th
Cir. 2010).
The elements of a RICO claim under 18 U.S.C. § 1962(c) are: (1) the
conducting; (2) of an enterprise; (3) through a pattern; (4) of racketeering
activity. See Whitney, Bradley, & Brown, Inc. v. Kammermann, 436 F. App’x
257, 258 (4th Cir. 2011) (citing Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S.
479, 496 (1985)). A “pattern of racketeering activity” is defined as at least
two acts of racketeering, typically referred to as predicate acts. See 18
U.S.C. § 1961(5). To plead a conspiracy violation under § 1962(d), a plaintiff
must allege that “each defendant agreed that another coconspirator would

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commit two or more acts of racketeering.” Walters v. McMahen, 795 F.
Supp. 2d 350, 355 (D. Md. 2011), aff’d in relevant part, 684 F.3d 435 (4th
Cir. 2012). “[T]he person committing the racketeering acts must be separate
from the ‘enterprise’ that the person participates in or conducts” and the
plaintiff must show “that the defendants conducted or participated in the
conduct of the enterprise’s affairs, not just their own affairs.” Carter v.
Rogers, Townsend & Thomas, P.C., No. 1:12cv495, 2014 (U.S. Dist. LEXIS
25622, at *14-15 (M.D.N.C. Feb. 28, 2014).
Here, the Complaint is devoid of any factual allegations as to who any
of the Defendants conspired with, when this alleged agreement occurred,
where it occurred, how it occurred, or even the precise nature of the
agreement. The Plaintiff instead appears to allege that he bought a faulty
car from Defendant Nissan of Hendersonville, was later hired by the same
Defendant, and was subsequently fired by Defendant Chrisman when he
was asked to post ads on his Facebook account by Defendant Andrus and
refused.

[Doc. 1].

The Plaintiff additionally and apparently unrelatedly

alleges that Defendant Muhammad is a member of Fruit of Islam, a group
that he alleges is part of a larger hate group. [Id.].
The Plaintiff has failed to allege any violation of federal law, let alone
any agreement or conspiracy on behalf of any of the Defendants to commit

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racketeering. The Plaintiff’s conclusory allegations therefore fail to state a
viable claim for relief under RICO.
The Plaintiff’s claims for fraud and hate crimes under 18 U.S.C. §§ 249
and 1341 are also not viable as the Plaintiff asserts such claims pursuant to
purely criminal statutes. While the “provision of a criminal penalty does not
necessarily preclude implication of a private cause of action,” there must be
“at least a statutory basis for inferring that a civil cause of action of some
sort” exists. Cort v. Ash, 422 U.S. 66, 79 (1975). Both of the provisions the
Plaintiff is pleading here are “nothing more than [] bare criminal statute[s],
with absolutely no indication that civil enforcement of any kind [is] available
to anyone.” Id. at 79-80. Therefore, these statutes do not create a civil cause
of action and the Plaintiff’s claims pursuant to them do not state a claim for
relief.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff’s

Complaint fails initial review and will dismiss his Complaint without prejudice.
The Court will allow the Plaintiff thirty (30) days to amend his Complaint, if
he so chooses, to properly state a claim upon which relief can be granted.
Any amended complaint will be subject to all timeliness and procedural
requirements and will supersede the Complaint. Piecemeal amendment will

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not be permitted. Should the Plaintiff fail to timely amend his Complaint in
accordance with this Order, the Court will dismiss this action without
prejudice.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Complaint fails
initial review under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for
relief and shall be DISMISSED WITHOUT PREJUDICE in accordance with
the terms of this Order.
IT IS FURTHER ORDERED that the Plaintiff shall have thirty (30) days
in which to amend his Complaint in accordance with the terms of this Order.
If Plaintiff fails to so amend his Complaint, the matter will be dismissed
without prejudice.
IT IS SO ORDERED.
Signed: February 8, 2024

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