Menius v. Gaston County Department of Social Services et al

Filing 35

ORDER: Plaintiff's 32 Third Amended Complaint is DISMISSED AS FRIVOLOUS and for failure to state a claim upon which relief can be granted. Plaintiff's 33 Motion for Reconsideration and 34 Motion to Amend are DENIED. Signed by Chief Judge Martin Reidinger on 4/1/2021. (Pro se litigant served by US Mail.) (maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00043-MR

STEVE LEE WALDEN MENIUS,

)
)
Plaintiff,
)
)
vs.
)
)
GASTON COUNTY DEPARTMENT
)
OF SOCIAL SERVICES, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on initial review of the Third
Amended Complaint [Doc. 32]. Also pending are Plaintiff’s pro se Motion for
Reconsideration [Doc. 33] and Motion to Amend [Doc. 34].

Plaintiff is

proceeding in forma pauperis. [Doc. 18].
I.

BACKGROUND
Pro se Plaintiff, who is presently incarcerated at the Harnett

Correctional Institution,1 filed this civil rights action pursuant to 42 U.S.C. §
1983 complaining about his adoption at the age of 10 and various incidents
that allegedly occurred in the decades that followed.2 The Second Amended

1

Plaintiff filed the Complaint from the Gaston County Jail.

2

The Plaintiff is now 45 years old.

Complaint [Doc. 27]3 was dismissed on initial review as frivolous and for
failure to state a claim upon which relief can be granted, and the Plaintiff was
given the opportunity to amend. [Doc. 30].
The Third Amended Complaint is now before the Court for review. The
Plaintiff names as Defendants: John Doe, the Plaintiff’s guardian ad litem at
the time of his adoption; the Gaston County Department of Social Services;
the City of Florence, South Carolina; the City of Hartsville, South Carolina’s
Department of Social Services; Gordon McBride, a private attorney; Dr.
Michel Friedman, a forensic psychologist for the State of South Carolina; Boy
Scouts of America - Pee Dee Area Council, Inc. in Florence, South Carolina
(“Pee Dee”); Dr. Delmar H. Wilson, the director of Pee Dee; Eugene J. Jones,
the scout executive for Pee Dee; and the estate of E. Flynn Menius, Jr., the
Plaintiff’s adoptive father.
The Plaintiff purports to sue the Defendants for violating his
constitutional rights by allowing Defendant Menius, who the Plaintiff asserts
was a pedophile, to adopt him. The Plaintiff alleges that the City of Hartsville

3

The Second Amended Complaint was filed before the Complaint [Doc. 1] and the
Amended Complaint [Doc. 25] were reviewed for frivolity. In the Second Amended
Complaint, the Plaintiff presented claims pursuant to the Americans With Disabilities Act
(ADA) 42 U.S.C. § 12101, et seq.; the Religious Land Use and Incarcerated Persons Act
(RLUIPA) 42 U.S.C. § 2000cc-1, et seq.; and the Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb, et seq., as well as § 1983.
2

had a “policy of incorporation to allow Boy Scouts to hide perversion files”
about allegations sexual misconduct and that Defendants John Doe and/or
the Department of Social Services breached a duty to the Plaintiff by allowing
Defendant Menius to adopt him “through a policy or custom of placing
children in foster homes.” [Doc. 32 at 4]. The Plaintiff further alleges that
“state actors for the City of Gastonia N.C. and Florence S.C., and members
of the Pee Dee Area Council Inc. for the Boy Scouts of America” deprived
him of “life and liberty.” [Doc. 32 at 6]. The Plaintiff alleges that Defendant
Menius molested him after the adoption and that this resulted in
psychological trauma, a lifetime of substance abuse, mental health
conditions, and incarceration. The Plaintiff states that he does not seek to
invalidate his criminal convictions, but rather “to use them as proof of said
deprivation of life and liberty” via the Plaintiff’s removal from his natural
parent and adoption by Defendant Menius. [Doc. 32 at 5].
The Plaintiff seeks psychological therapy, damages, injunctive relief,
and for the Boy Scouts of America “to include [Plaintiff] in its claims….” [Doc.
32 at 5].4

4

The Plaintiff alleges that he filed the Amended Complaint in the instant case, in which
he named the Boy Scouts of America as a Defendant, before a deadline of October 31,
2020. However, he fails to identify the origin of the October 31, 2020 deadline or explain
why he has asserted such a claim in the instant case. Significantly, the Plaintiff does not
allege that he was ever a boy scout. The Court takes judicial notice that the bar date for
filing claims in the bankruptcy proceeding of the Boy Scouts of America was November
3

The Plaintiff has also filed Motions requesting reconsideration of the
Order dismissing the Second Amended Complaint on initial review, and
seeking leave to amend. [Docs. 33, 34].
II.

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

review the Third Amended Complaint to determine whether it is subject to
dismissal on the grounds that it is “(i) frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B);
see 28 U.S.C. § 1915A (requiring frivolity review for prisoners’ civil actions
seeking redress from governmental entities, officers, or employees).
In its frivolity review, a 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 court to ignore a clear failure to allege facts in his complaint which set

16, 2020. [D.Del. Bcy. Case No. 20-10343]. Plaintiff makes no allegations that he has
filed any such claim therein.
4

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.

Third Amended Complaint

The Plaintiff asserts various violations of his constitutional rights
pursuant to § 1983. To state a claim under § 1983, a plaintiff must allege
that he was “deprived of a right secured by the Constitution or laws of the
United States, and that the alleged deprivation was committed under color
of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
To satisfy the state action requirement, a plaintiff must demonstrate that the
conduct at issue is “fairly attributable to the State.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982). If the defendant is not a state actor, there
must be 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.”
DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999).
Among the Defendants in this action are the Plaintiff’s adoptive father’s
estate, a private attorney, Pee Dee, and two Pee Dee organization officers.
The Plaintiff makes no factual allegations that would demonstrate that any of
these Defendants acted under the color of state law at the time the alleged
incidents occurred. See generally Fleming v. Asbill, 42 F.3d 886, 890 (4th
5

Cir. 1994) (“Private lawyers do not act ‘under the color of state law’ merely
by making use of the state’s court system.”); Powell v. Shopco Laurel Co.,
678 F.2d 504 (4th Cir. 1982) (dismissing § 1983 claim against the private
employer of a state-licensed security guard where the liability was predicated
solely on respondeat superior). Further, the Plaintiff has failed to allege facts
demonstrating that these Defendants violated his constitutional rights in any
way. See generally Fed. R. Civ. P. 8(a)(2) (short and plain statement is
required); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory
allegations, unsupported by specific allegations of material fact are not
sufficient); Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002)
(a pleader must allege facts, directly or indirectly, that support each element
of the claim).
The Plaintiff also asserts § 1983 claims against the Gaston County
Department of Social Services, the City of Florence, South Carolina, and the
City of Hartsville, South Carolina’s Department of Social Services. A county
or municipality may not be found liable under § 1983 via respondeat superior
alone; it may only be found liable “when execution of a government’s policy
or custom, whether made by its lawmakers or by those edicts or acts may
fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of
Social Servs., 436 U.S. 658, 694 (1978). For § 1983 liability to extend to a
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local government, the policy or custom must be the “moving force” that
resulted in the constitutional violation. Monell, 436 U.S. at 694. The Plaintiff
alleges that he was harmed by a “policy or custom of placing juveniles in
foster care facilities when their parents are considered unfit.” [Doc. 32 at 4].
However, this regurgitation of the Monell standard is insufficient to state a
claim; the Plaintiff has failed to assert any factual allegations that would
support a claim based on that theory. See generally Fed. R. Civ. P. 8(a)(2);
Simpson, 900 F.2d at 35; Dickson, 309 F.3d at 201-02.
The Plaintiff further has failed to state a claim against any of the other
Defendants.

The Plaintiff names as Defendants individuals including a

guardian ad litem and a forensic psychologist. The Plaintiff cites the Fifth,
Eight, and Fourteenth Amendments in a conclusory manner and alleges a
“substantive due process violation,” “deliberate indifference,” and “cruel and
unusual punishment.” [Doc. 32 at 3]. However, the Plaintiff has failed to
make any factual allegations about any of the Defendants’ alleged actions or
explained how the Defendants violated his rights in any way. The bare
citation of legal authority is insufficient to state a claim for relief.

See

generally Fed. R. Civ. P. 8(a)(2); Simpson, 900 F.2d at 35; Dickson, 309 F.3d
at 201-02.

7

In short, the Plaintiff has failed to state a plausible § 1983 claim against
any Defendant. Therefore, the Third Amended Complaint will be dismissed
as frivolous and for failure to state a claim upon which relief can be granted.
B.

Motion for Reconsideration

In his Motion for Reconsideration [Doc. 33], the Plaintiff asks the Court
to reconsider its dismissal of his Second Amended Complaint on initial
review because: the Plaintiff has standing to sue; the Plaintiff was injured by
North Carolina and South Carolina state policies that removed the Plaintiff
from his home and allowed him to be adopted in violation of his constitutional
rights; the Plaintiff’s claim against the Boy Scouts of America is timely; the
Plaintiff will be able to demonstrate that the Defendants are state actors
through discovery; and the Plaintiff’s claims are not frivolous.
“[A] district court retains the power to reconsider and modify its
interlocutory judgments . . . at any time prior to final judgment when such is
warranted.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15
(4th Cir. 2003); see also Fed. R. Civ. P. 54(b).
The Plaintiff has failed to demonstrate that reconsideration is
warranted with regards to the initial review of his Second Amended
Complaint in any respect.

Accordingly, the Plaintiff’s Motion for

Reconsideration will be denied.
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C.

Motion to Amend

In his Motion to Amend [Doc. 34], the Plaintiff seeks leave to file a
Fourth Amended Complaint. The Plaintiff explains that he fears he may not
have filed this action in the correct jurisdiction. He asks to voluntarily dismiss
all North Carolina parties; for “his claim to be joined to the claim against the
Boy Scouts of America Fed. R. Civ. P. 20(a)(1) and 20(a)(2);”5 and to
proceed against the South Carolina Defendants. [Doc. 34 at 2]. Plaintiff,
however, has not named the Boy Scouts of America (BSA) as a defendant
in this case. Moreover, he cannot amend to do so. The BSA is in bankruptcy
in Delaware, and any claim against that entity is automatically stayed
pursuant to 11 USC § 362. Likewise, any claims Plaintiff may have against
such other defendants cannot be joined in that bankruptcy proceeding, even
had Plaintiff filed a proof of claim to pursue the BSA.
A plaintiff may amend the complaint once as a matter of course within
21 days after serving the complaint, or within 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b),

The Plaintiff refers to Boy Scouts of America “ineligible volunteer” or “perversion files”
relating to Defendant Menius. [See Doc. 33-2 at 3-4] (April 21, 1964 letter from Defendant
Wilson to Defendant Jones stating that Defendant Menius was removed as a troop
scoutmaster after substantiated reports of “acts of perversion” committed on five scouts;
and Defendant Menius’s April 6, 1964 resignation letter to the troop parents, stamped
“TS/MS/KS v. BSA, et al., Cause No. 03-2-37274-9 Produced Pursuant to Protective
Order”).
5

9

(e), or (f), which is earlier.

Fed. R. Civ. P. 15(a)(1).

A plaintiff may

subsequently amend with permission from the court which “shall be freely
granted when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Fourth
Circuit “ha[s] interpreted Rule 15(a) to provide that ‘leave to amend a
pleading should be denied only when the amendment would be prejudicial
to the opposing party, there has been bad faith on the part of the moving
party, or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co.,
785 F.2d 503, 509 (4th Cir. 1986)).
The Plaintiff has failed to state a plausible claim against any Defendant
despite four attempts to do so. [See Docs. 1, 25, 27, 32]. Nothing in the
Motion to Amend indicates that a fifth attempt would fare any better. The
Plaintiff’s allusion to joining a lawsuit against the Boy Scouts of America in
another jurisdiction is vague and baseless. The Plaintiff has failed to identify
any possible proceeding against the Boy Scouts of America that he may be
seeking to join, explain its relationship to the instant civil rights action, or set
forth any basis for this Court’s involvement in such a request whatsoever.6

The Plaintiff does not allege that he was ever a boy scout or that the “perversion files”
relating to Defendant Menius from April 1964 – more than 11 years before the Plaintiff
was born – address the Plaintiff in any way.
6

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The Court has no difficulty concluding that further amendment would be
futile. Accordingly, the Plaintiff’s Motion to Amend is denied.
IV.

CONCLUSION
In sum, the Third Amended Complaint will be dismissed as frivolous

and for failure to state a claim upon which relief can be granted. The
Plaintiff’s Motion for Reconsideration and Motion to Amend are denied.
IT IS, THEREFORE, ORDERED that Plaintiff’s Third Amended
Complaint is DISMISSED AS FRIVOLOUS and for failure to state a claim
upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)(ii).
IT

IS

FURTHER ORDERED

that the Plaintiff’s

Motion

Reconsideration [Doc. 33] and Motion to Amend [Doc. 34] are DENIED.
IT IS SO ORDERED.

Signed: April 1, 2021

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for