Hancox v. Hess et al

Filing 36

MEMORANDUM OPINION. See for complete details. Signed by District Judge John A. Gibney, Jr. on 06/12/2017. (mailed copy to pro se Plaintiff) (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
JOHN L. HANCOX, JR.,
Plaintiff,
Civil Action No. 3: 17-cv-00255-JAG

v.
ELLEN MARIE HESS, Commissioner,
and DAVID AISTROP,
Defendants.

MEMORANDUM OPINION
The pro se plaintiff brings this suit against Ellen Hess, in her official capacity as the
Commissioner of the Virginia Employment Commission (the "VEC"), and David Aistrop. The
plaintiff says that the defendants wrongfully found him ineligible for unemployment benefits and
then wrongfully garnished his tax returns to pay back unemployment funds that the VEC had
overpaid him. Aistrop moved to dismiss this case, noting that the body of the complaint never
even mentions him. Hess moved to dismiss because the plaintiff fails to state a cognizable claim.
The plaintiff failed to respond to the motions to dismiss, and the Court grants the motions
because Hancox fails to state a claim in his frivolous complaint.
I. BACKGROUND
Hancox's former employer, NIBCO Inc. ("NIBCO") terminated him on January 28,
2015. He received unemployment payments for three weeks, but NIBCO then disputed his right
to unemployment. The VEC determined that Hancox did not qualify for unemployment and
cancelled the benefits. The final date to appeal that decision passed on October 21, 2015, and
Hancox did not appeal. On February 4, 2016, the VEC determined that it had overpaid Hancox
for $1, 134 worth of unemployment benefits. The VEC notified Hancox that he could appeal the
decision in Virginia circuit court by March 2016. Hancox never served a petition for judicial

review. For the past two years, the Virginia Department of Taxation has intercepted Hancox's
tax return to pay his debt owed to the VEC. Hancox has filed multiple appeals through the VEC
about the tax intercepts, but the state has affirmed the intercept in each instance.
Hancox says that federal judges may review the decisions of local agencies where a
plaintiff raises an issue of constitutional law. Giving Hancox the broadest latitude in interpreting
his complaint, he says that the VEC did not give him due process (1) when it determined he did
not qualify for unemployment and (2) when the VEC intercepted his tax refunds. The rambling
complaint also discusses Terry stops, character evidence, exculpatory Brady evidence,
defamation, and NIB CO' s OSHA requirements. The body of the complaint does not mention
Ai strop
Since filing the complaint, the defendant has also filed an array of improper motions
including two motions for summary judgment, an incomprehensible motion entitled "Rule 4," a
"Request Access to Update The Side Bar," and a "Motion To the Court: Pandora's Box of Law."
II. DISCUSSION
A complaint must contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Where, as here, a defendant brings a
motion to dismiss for failure to state a claim, the Court must analyze the plaintiffs complaint to
determine whether it states sufficient facts to state a claim to relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. (quotin.g Bell At/. Corp. v. Twombly, 550 U.S. 544, 565
(2007)). When considering the complaint itself, courts must accept all allegations as true and
must draw all reasonable inferences in favor of the plaintiff.

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Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). In cases where the plaintiff appears prose,
courts do not expect the plaintiff to frame legal issues with the clarity expected from lawyers.

Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Courts do not, however, need
to discern the unexpressed intent of the plaintiff or conjure up issues on the plaintiffs behalf.

See Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006); Beaudett, 775 F.2d at 1276.
The Court dismisses the frivolous complaint because it fails to state any cognizable
claim-federal or otherwise.
First, the complaint never mentions defendant David Aistrop, aside from naming him as a
defendant. The Court grants Aistrop's motion to dismiss because Hancox does not attempt to
plead a cause of action against him and because Hancox did not respond to the motion to
dismiss.
Next, Hancox takes issue with Hess and the VEC for (1) the VEC's 2015 process in
determining that he did not qualify for unemployment and (2) the process of intercepting his tax
refund. Giving the pro se litigant the broadest possible leeway and interpreting these as due
process claims, they both fail based on the documents Hancox attaches to his complaint. First,
the VEC held a hearing to determine that Hancox did not qualify for unemployment, sent him a
letter notifying him of his right to appeal, and he did not appeal. Second, Hess sent a letter to
Hancox letting him know that the VEC held a hearing on his tax-intercept appeal. Hess notes
that Hancox did not participate. In his complaint, Hancox does not dispute these notices and
appeals, but instead complains that the VEC only communicates with him over the phone.
Hancox cannot state a claim based on these facts because the process outlined in the documents
attached to Hancox's complaint complies fully with the requirements of due process.

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See

Brewer v. Cantrell, 622 F. Supp. 1320, 1326 (W.D. Va. 1985), C{[f'd, 796 F.2d 472 (4th Cir.

1986). The plaintiff may bring any avail able appeals in state court, but he fai ls to state a federal
claim and has fa iled to respond to the defendants' motions to dismiss.
The Court dismisses any federal clai ms with prej udice and any state claims without
prej udice.
It is so ORDERED.

Let the Clerk send a copy of this Memorandum Opinion to the pro se plaintiff via U.S.
mail.

Isl
John A. Gibney, Jr.
United States District Jud e

Date: June 12, 20 17
Richmond, VA

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