Boston v. Davis et al

Filing 20

ORDER staying ruling on 16 Memorandum and Recommendations for 60 days as set forth in order. Signed by District Judge Max O. Cogburn, Jr on 12/28/2011. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv450
SHIRLEY BOSTON,

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Plaintiff,
Vs.
PETE DAVIS, et al.,
Defendants.
_______________________________

ORDER

THIS MATTER is before the court on review of the Memorandum and
Recommendation (#16) issued by Honorable David S. Cayer, United States Magistrate
Judge, recommending that this action be dismissed with prejudice in accordance with Rule
12(b)(6).
Within the time allowed for filing objections, plaintiff (proceeding pro se) filed the
following: Sur-reply to Motion to Dismiss” (#17); plaintiff’s Motion to Amend Complaint (#18);
and Objection to Memorandum and Recommendation (#19). In the Surreply (c.f. L.Cv.R. 7.1),
plaintiff makes no objection to the M&R, but instead addresses her arguments to the reply of
Defendant Davis.1 In the Motion to Amend Complaint, plaintiff seeks to amend her Complaint to
allege additional facts and name additional defendants, all of which appear to be based on pleading
deficiencies discussed by Judge Cayer. In the Objection to the Memorandum and Recommendation,
plaintiff does not specifically identify any error of Judge Cayer, but argues that certain cited
decisions were law when the alleged unconstitutional acts occurred and that she did not receive a
copy of defendants of the Motion to Dismiss filed by Defendants Bernard and Williams.2 Plaintiff
1

Such document has been mis-linked as a response to the Motion to Dismiss of
Defendants Bernard and Williams (#11).
2

Candi Bernard and Jeanna Williams included a certificate of service with their
motion, indicating that they mailed a copy of their motion and brief to plaintiff at her given
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further argues the merits of her Motion to Amend in her objections. In none of these pleadings,
however, has plaintiff provided the court with any specific objection to recommendation of Judge
Cayer.
FINDINGS AND CONCLUSIONS
I.

Discussion
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall

make a de novo determination of those portions of the report or specific proposed findings
or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis,
718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo review of the record may be dispensed
with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not
required by the statute “when a party makes general or conclusory objections that do not
direct the court to a specific error in the magistrate judge’s proposed findings and
recommendations.” Id. Moreover, the statute does not on its face require any review at all
of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985);
Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final
determination and outcome of the case, and accordingly the court has conducted a careful
review of Judge Cayer’s recommendation.
As to Defendant Davis’s Motion to Dismiss, Judge Cayer determined that plaintiff has
not pled sufficient facts to establish that Defendant Davis affirmatively placed the plaintiff’s
granddaughter into state custody or exercised any act restraining her liberty and, therefore,
Defendant Davis had no constitutional duty to protect her from harm by private parties. In

address. See Docket Entry 11, at p. 2. Plaintiff has not filed an affidavit that would call into
question the certificate of service.
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her objection, plaintiff simply repeats arguments specifically addressed by Judge Cayer in
his recommendation. See Objections, at ¶ 4; c.f., Recommendation, at p. 9. Judge Cayer
held, as follows:
Based upon the facts pled by Plaintiff and viewed in a light most favorable to
her, it is undisputed that Tiffany was not in state custody or the custody of
Davis when she was sexually assaulted by Mitchell. Moreover, she was not in
the custody of the state or Davis when she was murdered.
M&R, at p. 9.
In her Motion to Amend, plaintiff now seeks leave to amend her complaint to allege
that her granddaughter was raped while she was “in State Foster Care Royce Mitchell
continues to Rape Tiffany on Multiple Occasions.” Proposed Amended Complaint, at ¶ 15
(#18, at p. 6)(errors in the original). Plaintiff bases such proposed amendment on her own
recollection of statements made to her by her granddaughter. Id. However, plaintiff does not
explain why she did not include such a serious allegation in her original Complaint, wherein
she alleged that her granddaughter “was later Placed in Foster Care after Royce Mitchell fails
a Study of His Home, for Other Reasons.” Complaint, at ¶ 15 (errors in the original;
emphasis added).
By failing to explain the inconsistency, plaintiff has shown little reason to allow
amendment. While Federal Rule of Civil Procedure 15 favors allowing motions to amend,
amendment “is by no means automatic.” Addington v. Farmer’s Elev. Mut. Insur. Co., 650
F.2d 663, 666 (5th Cir. 1981). The Supreme Court of the United States has declared that a
motion to amend may be denied when (i) there is evidence of undue delay, bad faith or
dilatory motive on the part of the movant; (ii) repeated failure to cure deficiencies by
amendments previously allowed; (iii) undue prejudice to the opposing party by virtue of
allowance of the amendment; or (iv) futility of the amendment. Foman v. Davis, 371 U.S.

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178, 182 (1962). A complaint must contain “‘a short and plain statement of the claim
showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007) (interpreting Fed. R. Civ. P. 8(a)).
In considering “futility of amendment,” the court has closely reviewed all of the
allegations of the Complaint as well as the proposed Amended Complaint. In conducting
such review, it appears to this court in the first instance that plaintiff lacks standing to bring
this lawsuit under 42, United States Code, Section 1983. In the Complaint, plaintiff alleges
that she is the natural grandmother of the deceased minor child, that she lived in another state
at the time of decedent’s death, and that it was the child’s adoptive brother (later guardian)
who had raped and later murdered the child. While plaintiff points to alleged failings of
police and social services to intervene, what is missing from all of the pleadings is any
allegation that plaintiff has standing to bring this lawsuit. Thus, if this court were to decide
the Rule 12(b)(6) issue at this point and dismiss such claims with prejudice, such decision
would be a nullity as plaintiff lacks standing to bring such claims.
First, simply being a relative of a deceased person does not give one standing to bring
a Section 1983 lawsuit; if that were the case, any relative of a deceased person could bring
a lawsuit on behalf of the deceased, putting before the court a claim which plaintiff has no
authority to bring, exposing defendants to the risk of redundant litigation, and putting the
judicial system in jeopardy through the possibility of inconsistent decisions and waste of
resources. Equally, Rule 12(b)(6) is not a short cut inasmuch as a decision on the merits of
claims brought by a plaintiff without standing to bring them is a nullity.
Instead, federal law looks to state law to determine who may bring a claim and
“[f]ederal courts are to apply state law in deciding who may bring a § 1983 action on a
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decedent's behalf.” Williams v. Bradshaw, 459 F.3d 846, 848 (8 th Cir. 2006)(citations
omitted). In turn, North Carolina law provides that it is the duly appointed administrator of
the decedent’s estate who can bring claims on behalf of the beneficiaries of the estate.
N.C.Gen.Stat. § 28A-18-2(a).
Before considering dismissal under Rule 12(b)(6), this court has a duty to consider its
subject-matter jurisdiction under Rule 12(b)(1), and such requirement is absolute:
[n]o party need assert [a lack of subject matter jurisdiction]. No party can
waive the defect, or consent to 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). While the court appreciates the efforts of the parties in discussing the merits of the
claims brought by plaintiff, such discussion is premature inasmuch as the court does not yet
have before it a party capable of bringing Section 1983 claims based on the alleged wrongful
death of this decedent, for the reasons discussed infra.
Standing is a threshold issue of jurisdiction. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, at 102, 104 (1998). Neither in the caption of the Complaint, the allegations of
the Complaint, nor anywhere in the proposed Amended Complaint does plaintiff allege that
she is the administrator of the estate of the decedent. Instead, it appears from the Complaint
that the decedent resided and died in North Carolina (an allegation from which the court
concludes that her estate would be administered in North Carolina) and that North Carolina
law would be applicable in determining who has standing to bring a claim on behalf of her
estate. To have standing to bring this Section 1983 action, which is in the nature of a
wrongful death action, plaintiff must first be qualified and appointed under North Carolina
law as the administratrix of the estate of the deceased and then must bring the action in her
capacity as administratrix of the estate rather than in her individual capacity, as she has done
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so herein. North Carolina law, provides as follows:
An action for wrongful death is a creature of statute and only can be
brought by the personal representative or collector of the decedent.
N.C.Gen.Stat. § 28A-18-2(a) (1991); Graves v. Welborn, 260 N.C. 688, 133
S.E.2d 761 (1963). The plaintiff must both allege and prove that he has the
capacity to sue. Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183
(1951). Moreover, the action must be instituted by the personal representative
within two years after the death of the decedent. N.C.Gen.Stat. § 1-53(4)
(1983).
Westinghouse v. Hair, 107 N.C.App. 106, 107 (1992). While this action was brought within
two years of the death of plaintiff’s granddaughter, it was not brought within two years by
a person having standing to bring the action as plaintiff does not allege that she was qualified
and appointed as the administratrix of her granddaughter’s estate. While such would
ordinarily suggest that the action should be dismissed outright, review of North Carolina law
reveals a savings provision which may well be applicable to this case. In Estate of Tallman
ex rel. Tallman v. City of Gastonia, 200 N.C.App. 13 (2009), the North Carolina Court of
Appeals held, as follows:
Ms. Tallman originally brought this action in the capacity of Executrix
of the Estate of Brian Gilbert Tallman. She subsequently obtained letters of
administration and seeks to proceed in her capacity as administratrix of the
estate of Brian Gilbert Tallman and as the real party in interest under Rule
17(a). The Supreme Court held in Burcl that the relevant inquiry under these
circumstances is whether “[d]efendants had full notice of the transactions and
occurrences upon which this wrongful death claim [was] based when the claim
was originally filed within the period of limitations by plaintiff....” 306 N.C.
at 230, 293 S.E.2d at 95.
***
Our courts have held that the real party in interest can, under Rule 17,
ratify the commencement of a lawsuit in several ways: (1) by filing a formal
notification with the court, Reeves v. Jurney, 29 N.C.App. 739, 741, 225
S.E.2d 615, 616 (holding that filing of signed document by real parties in
interest stating they authorized plaintiff to proceed and agreed to be bound as
if they were original plaintiffs was sufficient ratification), disc. review denied,
290 N.C. 663, 228 S.E.2d 454 (1976); (2) by stipulation, Lawrence v.
Wetherington, 108 N.C.App. 543, 547, 423 S.E.2d 829, 831 (1993) (holding
that real party in interest could stipulate to court that it would be bound by any
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decision in case); and (3) by participating in the legal proceedings, Long v.
Coble, 11 N.C.App. 624, 629, 182 S.E.2d 234, 238 (holding that participation
by counsel for real party in interest in legal proceedings was sufficient
ratification), cert. denied, 279 N.C. 395, 183 S.E.2d 246 (1971). Here, Ms.
Tallman's participation in the lawsuit once she had become administratrix was
sufficient under Long to ratify the filing of the summons and application for
extension of time. That ratification, under Rule 17(a), relates back to the filing
of the summons, rendering the wrongful death action timely.
Id., at 22-23. This relationship back could conceivably be applicable to the circumstances
presented in this case.
With those concerns in mind, the court has considered whether to dismiss this action
under Rule 12(b)(1). “[W]hen [jurisdiction] ceases to exist, the only function remaining to
the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. at 94 (citing Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)).
To have standing under Article III of the United States Constitution, a party “must assert his
own legal rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.” Hinck v. United States, 550 U.S. 501, 510 n. 3 (2007). Lack of
subject-matter jurisdiction may be raised at any time either by a litigant or the court.
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of the court to
independently address subject-matter jurisdiction is important to finality inasmuch as a
litigant, even one who remains silent on the issue of jurisdiction, may wait until they receive
an adverse judgment from a district court and raise the issue of subject-matter jurisdiction
for the first time on appeal, thereby voiding the judgment. Capron v. Van Noorden, 2 Cranch
126, 127, 2 L.Ed. 229 (1804). The Federal Rules of Civil Procedure anticipate this issue and
provide that "[w]henever it appears by suggestion of the parties or otherwise that the court
lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P.
12(h)(3). When a court considers its subject-matter jurisdiction, the burden of proof is on

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the plaintiff.

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).

In Richmond,

Fredricksburg & Potomac R.R. Co. v. United States, 945 F.2d 765 (4th Cir. 1991) (Ervin,
C.J.), the Court of Appeals for the Fourth Circuit held, as follows
In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to one for
summary judgment. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813
F.2d 1553, 1558 (9th Cir.1987). The district court should apply the standard
applicable to a motion for summary judgment, under which the nonmoving
party must set forth specific facts beyond the pleadings to show that a genuine
issue of material fact exists. Trentacosta, supra, 813 F.2d at 1559 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91
L.Ed.2d 265 (1986)). The moving party should prevail only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail
as a matter of law. Trentacosta, supra, 813 F.2d at 1558. A district court order
dismissing a case on the grounds that the undisputed facts establish a lack of
subject matter jurisdiction is a legal determination subject to de novo appellate
review. Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989);
Shultz v. Dept. of the Army, 886 F.2d 1157, 1159 (9th Cir.1989).
Id., at 768-69.
Thus, the court must now consider whether immediate dismissal is appropriate or
whether some other action is appropriate under relevant case law. Federal courts have a duty
to construe pleadings “so as to do justice.” Crosby v. City of Gastonia, 635 F.3d 634, 642
(4 th Cir. 2011); Fed.R.Civ.P. 8(e). As discussed above, dismissal of this action under Rule
12(b)(1), even without prejudice, would likely prevent any administrator of the estate of
decedent from intervening under Rule 17(a) as such claims would be time barred. Under
North Carolina law, it would appear that an estate could conceivably adopt this litigation and
possibly have such adoption relate back to the original filing. While a Rule 12(b)(1)
dismissal would be without prejudice,3 any claim that enured to the beneficiaries of

3

Rule 41(b), Fed.R.Civ.P., provides in relevant part that, “[u]nless the dismissal
order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this
rule... except one for lack of jurisdiction . . . operates as an adjudication on the merits.” As other
courts have found,
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decedent’s estate would be effectively lost even by a dismissal without prejudice inasmuch
as the two-year period of limitations would have run.
Having considered the pleading and case law in a manner to do justice, the court will
hold open consideration of the M&R for an additional 60 days, during which any duly
appointed administrator of the decedent’s estate will have the opportunity to be substituted
as the real party in interest and ratify the claims previously asserted or move for their
amendment. Fed.R.Civ.P. 17(a)(3). Within that period, the duly appointed administrator of
the estate of the decedent may, through counsel, move under Rule 17(a) to be substituted as
the real party in interest and adopt this action as their own. Plaintiff is advised that if she
desires to become such administrator, she will need to make application with the appropriate
North Carolina state court, and that her appointment as administratrix is by no means
automatic or without cost. See N.C.Gen.Stat. § 28A-4-2 (as amended by 2011 North
Carolina Laws S.L. 2011-344 (S.B. 432)).

Plaintiff is further advised that seeking

qualification as the administrator of an estate is a difficult legal task and that she should seek
the assistance of counsel.
Finally, plaintiff is advised that if she is successful in being appointed as the
administrator, the court will require her, in her capacity as administratrix of the
decedent’s estate, to be represented by counsel. While plaintiff is at liberty to represent
her own legal interests in federal court without the assistance of counsel, she is not permitted

[d]ismissal for lack of subject-matter jurisdiction should normally be without
prejudice, since by definition the court lacks power to reach the merits of the
case. See Ernst v. Rising, 427 F.3d 351, 366 (6th Cir.2005). It is true that, in rare
cases where a district court lacks jurisdiction, the court may dismiss a claim with
prejudice “as a sanction for misconduct.” Id. But there was no finding of
misconduct here.
Revere v. Wilmington Finance, 406 Fed.Appx. 936, 937 (6th Cir. 2011)
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to represent the legal interests of others in this court without counsel. The legal interests of
the beneficiaries of an estate, as a matter of both federal and state law, cannot be pursued by
an administrator proceeding pro se. As other courts have held:

most important, this case cannot be prosecuted on a pro se basis. Estates
cannot represent themselves.
***
Appearances in federal court are governed by 28 U.S.C. § 1654. Section
1654 permits parties "[i]n all of the Courts of the United States . . . [to] plead
and manage their own causes personally or by the assistance of counsel or
attorneys at law." 28 U.S.C. § 1654. This section, enacted to enforce the Sixth
Amendment's right to counsel, "guarantee[s] a choice between representation
by counsel and the traditional practice of self-representation." See Faretta v.
California, 422 U.S. 806, 825, 834, 95 S.Ct. 2525, 2536, 2541 (1975). The
right to self-representation, however, has been interpreted to mean that only
individuals (or natural persons) have a right to represent themselves and that
an individual can represent only himself; it by no means affords a right to lay
representation by someone (even an agent) other than one's self. See Osborne
v. Bank of the United States, 22 U.S. (9 Wheat.) 326, 365-66, 6 L.Ed. 204
(1824) ("A corporation, it is true, can appear only by attorney, while a natural
person may appear for himself."); Scandia Down Corp. v. Euroquilt, Inc., 772
F.2d 1423, 1427 (7th Cir. 1985) ("A 'corporation' is an abstraction, and
abstractions cannot appear pro se."); United States v. Taylor, 569 F.2d 448,
451 (7th Cir. 1978) (constitutional right to assistance of counsel does not
include right to representation by persons unlicenced to practice law); United
States v. Peterson, 550 F.2d 379, 381-82 (7th Cir. 1977) (Faretta "does not
hold that a defendant has the freedom of choice to select a non-licenced person
as his counsel"); McShane v. United States, 366 F.2d 286 (9th Cir. 1966) (pro
se petitioner could act on his own behalf but not on behalf of other class
members).
***
Like a corporation, an estate can only act through an agent; in this case,
an administrator. An estate by its very nature cannot represent itself and,
therefore, must be represented by a licensed attorney, regardless of the relation
between the administrator and the decedent. To permit an unlicenced lay
administrator to appear pro se would be to permit the unauthorized practice of
law. I cannot do so.
McCants v. Village of Broadview, 1994 WL 117478, 1-2 (N.D. Ill. 1994). In accordance
with Chapter 28A-13-3(23) of the North Carolina General Statutes, the personal
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representative of a decedent’s estate has the exclusive authority to seek damages for his or
her decedent’s death; and in accordance with Chapter 28A-18-2(a), damages recovered by
the personal representative are then distributed to the decedent’s beneficiaries in accordance
with the Intestate Succession Act. North Carolina’s highest court has long held that “the real
party in interest is the beneficiary under the statute for whom recovery is sought, and not the
administrator.” In Re Ives’ Estate, 248 N.C. 176, 181 (1958) (citation omitted). As such,
only a lawyer can pursue the legal claims of another.4
To summarize, the court will stay further consideration of the Memorandum and
Recommendation for 60 days to allow the administrator of the decedent’s estate, through
counsel, to move to be substituted as the real party in interest.

ORDER
IT IS, THEREFORE, ORDERED that consideration of the M&R is STAYED for
60 days, during which time the duly appointed administrator of the estate of decedent may,
through counsel, move under Rule 17(a) to be substituted as the real party in interest and, if
so allowed, to ratify the Complaint and/or move to amend the Complaint.
Signed: December 28, 2011

4

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, is the unauthorized practice of law, which is a criminal offense in North
Carolina, punishable as a Class 1 misdemeanor. N.C. Gen. Stat. §§ 84-4 & 8.
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