United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
This civil action is before the Court on the Defendants' Motions to Dismiss [Doc. #23, #26, #29] and Plaintiffs' Motion to Amend Complaint [Doc. #34]. Plaintiffs Thomas and Gail Clayton are proceeding pro se in this action, which arises out of the foreclosure of their home and/or business in Alamance County, North Carolina. Defendants Clyde Albright, the City of Burlington, the Burlington Police Department, and the Alamance County Sheriff's Office have all moved to have all claims against them dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) or (b)(2). In addition, Plaintiffs Gail and Thomas Clayton have filed a Motion to Amend their Complaint. Plaintiffs were advised of their right to respond to each motion, and they filed a Response [Doc. #32]. For the reasons that follow, the Court recommends that Defendants' Motions to Dismiss be granted, and that Plaintiff's Motion to Amend be denied.
I. FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiffs allege in their Second Amended Complaint [Doc. #21] that they reside and operate a business in Alamance County, North Carolina. Their First Cause of Action alleges a First Amendment violation. Plaintiffs claim that "certain state officials have had ex parte hearings involving serious issues that would have and has had great harmful impact on the people." (Am. Compl. [Doc. #21] at 2.) Plaintiffs further allege that since 2011 they have "suffered continuous discrimination and abuse from actions by state officials, stemming from unconstitutional rules and unlawful procedures as a method to cover up federal fund fraud and mortgage fraud." (Id.) Plaintiffs claim that the only Defendant named in this count, the North Carolina Administrative Office of the Court ("NCAOC"), "has implemented judicial rules over issues of real estate/property interest involving foreclosure procedures, which conflict with federal laws that protect people from tyrants and bullies." (Id.) Plaintiffs also allege that Defendant NCAOC "has been selling people's personal information without consent." (Id.)
Plaintiffs' second cause of action is based upon the Fourth Amendment. Plaintiffs allege that Defendant NCAOC "has incorporated others to participate in unconstitutional actions involving different Branchs [sic] of government." ( Id. at 3.) They claim that the Burlington Police Department arrested Plaintiff Gail Clayton "for entering her own home, " although "the complaint was verbally filed by a real estate broker using names that never appeared on Plaintiffs foreclosure or Register of Deeds." (Id.) They accuse the Burlington Police Department of elder abuse and discrimination.
Plaintiffs' third cause of action is based upon the Ninth Amendment. They allege that the Alamance County Sheriff's Office "threw Plaintiffs off their own property without ever going to court; unlawfully used imposters and fraud to create a puzzle scheme." ( Id. at 4.) Plaintiffs also allege that they asked the police department to "help when their care [sic] was stolen, but the BPD said it was a civil matter and couldn't help." ( Id. at 5.)
Plaintiffs' fourth cause of action is based upon 15 U.S.C. § 1692, which sets out Congressional findings regarding consumer debt collection practices. Plaintiffs allege that North Carolina has failed to implement this statute "to demand banks and non banks to Provide and audit with all credits before proceeding to foreclosure." (Id.) Plaintiffs state that they have repeatedly asked for an audit pursuant to this statute.
Plaintiffs' fifth cause of action is for violations of the Thirteenth Amendment. Plaintiffs allege that the NCAOC has "abused its authority" by somehow taking Plaintiffs' earnings. Plaintiffs also allege that the City of Burlington "has failed to disclose information concerning financial arrangements; Defendants are claiming Plaintiffs are their slaves and have been for over 30 years." ( Id. at 5.)
As relief, Plaintiffs seek an award of "attorney fees and their lawful property rights and any other positive award or grant to Plaintiffs." ( Id. at 6.)
A. Standard - Rule 12(b)(6)
A plaintiff fails to state a claim on which relief may be granted under Federal Rule of Civil Procedure12(b)(6) when the complaint does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "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." Iqbal , 556 U.S. at 678.
B. Defendant Albright
Defendant Albright moves to dismiss because Plaintiffs' second amended Complaint fails to allege any facts at all against him. (Br. [Doc. #24].) The only mention of Defendant Albright is a handwritten addition of his name as a Defendant in the caption of the Complaint. Plaintiffs have failed to plead sufficient factual matter to state a claim for relief against Defendant Albright. See Ashcroft , 556 ...