Brown v. Registrar of Deeds For Cleveland County et al

Filing 4

ORDER granting Plaintiff's 3 Application to Proceed in District Court without Prepaying Fees or Costs and the Plaintiff shall be allowed to proceed without prepayment of the filing fee or giving security therefor. IT I S FURTHER ORDERED that the Plaintiff's 1 Complaint is DISMISSED WITHOUT PREJUDICE. The Plaintiff shall have 30 days in which to amend his Complaint in accordance with the terms of this Order. If the Plaintiff fails to file an Amended Complaint in accordance with this Order and within the time limit set by the Court, this action will be dismissed without prejudice and without further notice to the Plaintiff. (Amended Pleadings due by 12/27/2024.). Signed by Chief Judge Martin Reidinger on 11/25/2024. (Pro se litigant served by US Mail.) (slm)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:24-cv-00283-MR-WCM
THURMAN BROWN, Heir to the
)
Estate of Rose Lee Kee Williams
)
and Lead Plaintiff on behalf of
)
himself and others similarly situated, )
)
Plaintiff,
)
)
vs.
)
)
REGISTRAR OF DEEDS FOR
)
CLEVELAND COUNTY, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs [Doc. 2].
I.

BACKGROUND
On October 9, 2024, the pro se Plaintiff Thurman Brown brought a

putative class action on behalf of himself as an heir to the Estate of Henrietta
Flack Withrow, along with other similarly situated heirs, tenants, and thirdparty purchasers, asserting claims of fraud, breach of fiduciary duty,
professional negligence, and negligence. [Civil Case No. 1:24-cv-00249MR-WCM, Doc. 1 at 1, 5-6]. In that action, the Plaintiff named as Defendants
Sarah Jane Spikes, the administrator of Ms. Withrow’s estate; Murrell K.

Spikes and Rickey McCluney, who allegedly participated in fraudulent
property transfers of estate property arranged by Sarah Jane Spikes; Mark
D. Lackey and Thomas W. Martin, attorneys who allegedly prepared and
facilitated the fraudulent property transfers; and the “Registrar [sic] of Deeds
for Cleveland County.” [Id., Doc. 1 at 3]. The Plaintiff also sought to proceed
without the prepayment of fees and costs. [Id., Doc. 2].
On October 23, 2024, the Court entered an Order granting the
Plaintiff’s application to proceed without the prepayment of fees and costs
but dismissing the action because the Plaintiff had failed to assert any basis
for the exercise of federal subject matter jurisdiction. [Id., Doc. 3]. A Clerk’s
Judgment was entered the same day. [Id., Doc. 4]. On October 29, 2024,
the Plaintiff filed a motion attempting to amend his Complaint. [Id., Doc. 5].
The Court denied that motion and instructed the Plaintiff that he needed to
file a new civil action. [Id., Doc. 6].
On November 15, 2024, the Plaintiff filed the present action. [Doc. 1].
In his Complaint, he again asserts a putative class action on behalf of himself
and all others similarly situated.1 He again names Sarah Jane Spikes,

1

While in the body of the Complaint, the Plaintiff again refers to himself as an heir to the
Estate of Henrietta Flack Withrow, in the caption of the Complaint, the Plaintiff refers to
himself as an heir to the Estate of one Rose Lee Kee Williams. [Compare Doc. 1-1 at 2;
Doc. 1 at 1].
2

Murrell K. Spikes, Rickey McCluney, Mark D. Lackey, Thomas W. Martin, and
the “Registrar [sic] of Deeds for Cleveland County.” [Id.]. He also names as
Defendants: Destany McCluney; the Cleveland County Magistrate; Martha
Thompson, the Cleveland County Attorney; “Unknown Magistrate Judges”;
the “Sheriff Deputy that effectuated arrest”; the Cleveland County Sheriff’s
Department; the “Cleveland County Estates Office”; and “Other Defendants
to Be Determined.” [Id.; see also Doc. 1-1 at 20].
In his Complaint, the Plaintiff reiterates his allegations of fraudulent
activities by Defendant Sarah Jane Spikes and others, involving fraudulent
property transfers, “title washing” schemes, and the manipulation of public
records. [Doc. 1-1 at 2]. With respect to the newly named Cleveland County
defendants, the Plaintiff alleges a “systemic denial of access to justice for
economically disadvantaged litigants,” as well as a pattern of “judicial and
law enforcement intimidation.” [Id. at 2-3]. Specifically, the Plaintiff appears
to challenge the fees he was required to pay for service of process; the
manner in which hearings were conducted; and the dismissal of his multiple
filings and complaints regarding the alleged fraudulent property transactions.
[Id. at 2-3, 9-11].

He also alleges that he was arrested on “pretextual

charges” for contempt in a “coordinated effort to suppress Plaintiff’s
legitimate claims and instill fear.” [Id. at 3].
3

The Plaintiff asserts claims for the violation of his due process and
equal protection rights under 42 U.S.C. § 1983 and for violation of the
criminal RICO statute, 18 U.S.C §§ 1961-1968. He also purports to assert
claims for professional negligence and for “conspiracy to defraud.” [Doc. 11 at 15-16].
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). Furthermore, under § 1915A
the Court must conduct an initial review and identify and dismiss the
complaint, or any portion of the complaint, if it is frivolous, malicious, or fails
to state a claim upon which relief may be granted; or seeks monetary relief
from a defendant who is immune to such relief. 28 U.S.C. § 1915A.
In its frivolity review, this Court must determine whether a 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
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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).
III.

DISCUSSION
A.

Application to Proceed with Prepaying Fees or Costs

The Plaintiff seeks to proceed with this civil action without having to
prepay the costs associated with prosecuting the matter. [Doc. 2].

In his

Application, the Plaintiff asserts that he has no income and no assets, but
has monthly expenses of approximately $500.00. [Id. at 1-2, 4-5]. He states
that he “had to rob and steal to get here” and that he is currently working for
food at an outreach ministry. [Id. at 5]. Upon review of the application, it
appears that the Plaintiff lacks the resources with which to pay the required
filing fee. Accordingly, the Court finds that the application should be granted.
B.

Section 1915 Review of Complaint
1.

Representing Other Parties

As a pro se litigant, the Plaintiff cannot represent other plaintiffs in a
class action. Mescall v. Renaissance at Antiquity, No. 3:23-cv-00332-RJCSCR, 2023 WL 7490841, at *1 (W.D.N.C. Nov. 13, 2023) (“a pro se plaintiff
may not represent other plaintiffs, including in class actions”). Accordingly,
to the extent that the Plaintiff purports to assert claims on behalf of other
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individuals or to maintain a class action in this matter, such claims are
dismissed.
2.

Challenges to State Court Proceedings

To the extent that the Plaintiff’s claims are related to his arrest for
contempt, such claims must be dismissed. The Complaint fails to allege
whether this charge is still pending or whether the Plaintiff was convicted. If
the charge is still pending, any § 1983 claim based on his arrest would be
premature. See Saunders v. Moore, No. 1:18cv91 (LMB/TCB), 2018 WL
1129975, at *2 (E.D. Va. Feb. 28, 2018) (noting that claim of false arrest was
premature as plaintiff had not yet been tried on pending charge). If the
Plaintiff was in fact convicted of contempt, the Plaintiff is barred from
asserting any claims that would necessarily imply the invalidity of a
conviction unless and until he can show that his underlying conviction has
been reversed, expunged, or otherwise invalidated. See Heck v. Humphrey,
512 U.S. 477, 486-87 (1994).
To the extent that the Plaintiff challenges the outcome of any state court
proceedings related to the administration of Ms. Withrow’s estate or the
Plaintiff’s claims related thereto, the Rooker-Feldman doctrine precludes the
Court from exercising jurisdiction over such claims.

The United States

Supreme Court has exclusive jurisdiction over appeals from state-court
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judgments. See 28 U.S.C. § 1257(a); 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). As a corollary to this rule, the Rooker-Feldman doctrine
prohibits “a party losing in state court . . . from seeking what in substance
would be an appellate review of the state judgment in a United States district
court, based on the losing party’s claim that the state judgment itself violates
the loser’s federal rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06
(1994).

“The Rooker-Feldman doctrine bars lower federal courts from

considering not only issues raised and decided in state courts, but also
issues that are ‘inextricably intertwined’ with the issues that are before the
state court.” Washington v. Wilmore, 407 F.3d 274, 279 (4th Cir. 2005)
(quoting Feldman, 460 U.S. at 486). As the Fourth Circuit has explained, “if
the state-court loser seeks redress in the federal district court for the injury
caused by the state-court decision, his federal claim is, by definition,
‘inextricably intertwined’ with the state-court decision, and is therefore
outside the jurisdiction of the federal district court.” Davani v. Va. Dep’t of
Transp., 434 F.3d 712, 719 (4th Cir. 2006).
Further, the Court notes that the Supreme Court has recognized a
“probate exception” to the exercise of federal subject matter jurisdiction.
“[T]he probate exception reserves to state probate courts the probate or
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annulment of a will and the administration of a decedent’s estate; it also
precludes federal courts from endeavoring to dispose of property that is in
the custody of a state probate court.” Marshall v. Marshall, 547 U.S. 293,
311-12 (2006). As the Plaintiff’s claims appear, at least in part, to challenge
the administration of Ms. Withrow’s estate, the Court concludes that the
“probate exception” also justifies the Court declining to exercising jurisdiction
in this matter.
3.

Claims against Judicial Officers

The Plaintiff attempts to assert claims against a number of unnamed
state court magistrates. It is well-settled that state court magistrates are
entitled to judicial immunity for actions that they take in their judicial capacity.
King v. Myers, 973 F.2d 354, 356 (4th Cir. 1992) (“Magistrates are judicial
officers, and are thus entitled to absolute immunity under the same
conditions as are judges.”); Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir.
1987) (“As judicial officers, magistrates are entitled to absolute immunity for
acts performed in their judicial capacity.”). Judicial immunity is necessarily
broad and the only situations where a judicial officer can be subject to civil
suit are where the act complained of is not a judicial act or where the judicial
officer acts in the clear absence of all jurisdiction. King, 973 F.2d at 357;
Pressly, 831 F.2d at 517. As the Plaintiff has made no plausible allegation
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that these magistrates were acting in the “clear absence of all jurisdiction,”
they are entitled to absolute immunity, and the Plaintiff’s claims against them
must be dismissed.
4.

Section 1983 Claims

The Plaintiff also appears to assert § 1983 claims against several
private actors, including attorneys, the executor of Ms. Withrow’s estate, and
participants in various real estate transactions. In this regard, the Plaintiff’s
Complaint is frivolous and fails to state a claim upon which relief can be
granted. As the Fourth Circuit has explained:
To implicate 42 U.S.C. § 1983, conduct must be fairly
attributable to the State. The person charged must
either be a state actor or have a sufficiently close
relationship with state actors such that a court would
conclude that the non-state actor is engaged in the
state’s actions. Thus, the Supreme Court has held
that private activity will generally not be deemed
“state action” unless the state has so dominated such
activity as to convert it into state action: [m]ere
approval of or acquiescence in the initiatives of a
private party is insufficient.
DeBauche v. Trani, 191 F.3d 499, 506-07 (4th Cir. 1999) (internal quotation
marks and citations omitted). Here, the Plaintiff has made no allegations that
these private actors had sufficiently close relationships with state actors such
that the Court could conclude that they were engaged in governmental
action. Even if these Defendants were state actors (which they are not), the
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Plaintiff does not identify any conduct by these Defendants which could
possibly be construed as a deprivation of the Plaintiff’s constitutional rights.
For all these reasons, the Plaintiff has no basis to assert a § 1983 claim in
this case against these private actor defendants.
The Plaintiff also names the Cleveland County Sheriff’s Office as a
defendant. Under North Carolina law, a sheriff's office is not a legal entity
capable of being sued under 42 U.S.C. § 1983. Parker v. Bladen County,
583 F.Supp.2d 736, 740 (E.D.N.C. June 27, 2008); see also Moore v. City of
Asheville, 290 F.Supp.2d 664, 673 (W.D.N.C. 2003), aff’d, 396 F.3d 385 (4th
Cir. 2005) (dismissing claims against city police department for lack of
capacity). As such, the Cleveland County Sheriff's Office will be dismissed
as a Defendant in this matter.
To the extent that the Plaintiff reasserts § 1983 claims against
individual state actors, such as the Sheriff’s deputy who arrested him or the
county attorney, such claims are too conclusory and devoid of factual support
to state a claim. Accordingly, these claims are also dismissed.
5.

RICO Claims

To the extent that the Plaintiff attempts to assert a private right of action
under RICO, such claims also must be dismissed. “RICO provides a private
right of action for treble damages to ‘[a]ny person injured in his business or
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property by reason of a violation’” of the Act’s criminal prohibitions. Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639, 641 (2008) (quoting 18 U.S.C. §
1964(c)). A plaintiff seeking civil damages under RICO must show: “(1)
conduct [causing injury to business or property]; (2) of an enterprise; (3)
through a pattern; (4) of racketeering activity.” Whitney, Bradley & Brown,
Inc. v. Kammermann, 436 F. App’x 257, 258 (4th Cir. 2011) (citing Sedima,
S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). A pattern of racketeering
activity “requires at least two acts of racketeering activity.” 18 U.S.C. §
1961(5). The RICO statutes defines “racketeering activity” as any act or
threat of murder, kidnapping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, dealing in a controlled substance, or any act
which is indictable under a series of enumerated federal criminal statutes.
See 18 U.S.C. § 1961(1). To state a civil RICO claim, a plaintiff must allege
“the necessary ‘continuity’ to establish the required pattern that distinguishes
‘racketeering activity’ under RICO from ‘garden-variety’ commercial
disputes.” Gilchrist v. Cook, No. 7:07-0508-HFF-WMC, 2007 WL 950386, at
*3 (D.S.C. Mar. 26, 2007) (citation omitted).

In order to satisfy the

“enterprise” element, a plaintiff must allege “two separate and distinct
entities: a ‘person’ and ‘an enterprise’ through which the person acts.” Id.
(citation omitted).
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Construing the pro se Plaintiff’s Complaint liberally, the Court
concludes that the Plaintiff has failed to allege the requisite “enterprise” and
the necessary continuity of a “pattern of racketeering activity” necessary to
state a RICO claim. Accordingly, these claims are also dismissed.
6.

Professional Negligence

To state a claim for professional negligence under North Carolina law,
a plaintiff must allege “(1) the nature of defendant’s profession; (2)
defendant's duty to conform to a certain standard of conduct; and (3) a
breach of the duty proximately caused injury to plaintiff.”

Rainey v. St.

Lawrence Homes, Inc., 174 N.C. App. 611, 615, 621 S.E.2d 217, 221 (2005)
(citation omitted).

Here, the Plaintiff has failed to make any plausible

allegations to establish any of the essential elements of a professional
negligence claim. Accordingly, such claims are dismissed.
7.

Conspiracy to Defraud

To the extent that the Plaintiff attempts to assert claims for conspiracy
to defraud pursuant to 18 U.S.C. § 371, such claims must be dismissed.
Section 371 is a criminal statute, which does not provide any private right of
action. See Doe v. Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (“The
Supreme Court historically has been loath to infer a private right of action
from a ‘bare criminal statute’ because criminal statutes are usually couched
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in terms that afford protection to the general public instead of a discrete, welldefined group.”) (quoting in part Cort v. Ash, 422 U.S. 66, 80 (1975)). Even
if a private right of action existed under this statute, the Plaintiff has not
alleged any plausible facts to support such a claim.
8.

Warning Against Frivolous Actions

This is the second civil action that the Plaintiff has filed asserting the
same factual allegations and frivolous legal claims. Litigants do not have an
absolute and unconditional right of access to the courts in order to prosecute
frivolous, successive, abusive or vexatious actions. See Demos v. Keating,
33 F. App’x 918, 920 (10th Cir. 2002); Tinker v. Hanks, 255 F.3d 444, 445
(7th Cir. 2002); In re Vincent, 105 F.3d 943, 945 (4th Cir. 1997). District
courts have inherent power to control the judicial process and to redress
conduct which abuses that process. Silvestri v. Gen. Motors Corp., 271 F.3d
583, 590 (4th Cir. 2001).
The Plaintiff is hereby informed that future frivolous filings will result in
the imposition of a pre-filing review system. Cromer v. Kraft Foods N. Am.,
Inc., 390 F.3d 812, 818 (4th Cir. 2004); Vestal v. Clinton, 106 F.3d 553, 555
(4th Cir. 1997). If such a system is placed in effect, pleadings presented to
the Court which are not made in good faith and which do not contain
substance, will be summarily dismissed as frivolous. See Foley v. Fix, 106
13

F.3d 556, 558 (4th Cir. 1997). Thereafter, if such writings persist, the prefiling system may be modified to include an injunction from filings. In re
Martin–Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984).
IV.

CONCLUSION
In sum, the Court will allow the Plaintiff to proceed without the

prepayment of costs and fees.

However, upon review of the Plaintiff’s

Complaint, the Court concludes that the Plaintiff’s Complaint is frivolous and
fails to state a claim upon which relief can be granted. The Court will allow
the Plaintiff thirty (30) days to amend his Complaint, if he so chooses, to
correct the deficiencies identified in this Order and to otherwise 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 his
previous filings. Piecemeal amendment will not be allowed. Should the
Plaintiff fail to timely file an Amended Complaint in accordance with this
Order, this action will be dismissed without prejudice and without further
notice to the Plaintiff.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs [Doc. 3] is
14

GRANTED, and the Plaintiff shall be allowed to proceed without prepayment
of the filing fee or giving security therefor.
IT IS FURTHER ORDERED that the Plaintiff’s Complaint [Doc. 1] is
DISMISSED WITHOUT PREJUDICE. The Plaintiff shall have thirty (30)
days in which to amend his Complaint in accordance with the terms of this
Order. If the Plaintiff fails to file an Amended Complaint in accordance with
this Order and within the time limit set by the Court, this action will be
dismissed without prejudice and without further notice to the Plaintiff.
IT IS SO ORDERED.
Signed: November 25, 2024

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