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Myers v. At&T, Inc.

United States District Court, E.D. North Carolina, Western Division

December 2, 2014

AT&T, INC., et al., Defendants.


TERRENCE W. BOYLE, District Judge.

This matter is before the Court on plaintiffs' motion to correct clerical mistake [DE 194], plaintiffs' motion for a more definite statement [DE 195], defendant AT&T Inc.'s motion to dismiss [DE 221], defendant Branch Banking and Trust's motion to strike and to dismiss [DE 225], defendant United States Marshal, Bryan Konig's, motion to dismiss [DE 234], plaintiffs motions to deny motions to dismiss [DE 237 & 238], plaintiffs' motions for oral hearing [DE 239 & 240], plaintiffs' ex parte motion [DE 241], plaintiffs' motion for joinder [DE 242], plaintiffs' motion for extension of time [DE 243], and plaintiffs motion for assistance of counsel [DE 246]. Each of these motions is ripe for adjudication. For the reasons stated herein, defendants' motions are GRANTED and plaintiffs' motions are DENIED.


Plaintiffs filed their complaint pro se on November 19, 2012, alleging various violations of federal law, state law, and plaintiffs' constitutional rights against 47 defendants. [DE 3]. Chief United States District Judge Dever originally had this case and entered an order on August 16, 2013 which dismissed plaintiffs' claims against many of the defendants and allowed plaintiffs to file an amended complaint. [DE 164]. The matter has since been transferred to the undersigned. On March 31, 2014, plaintiffs filed an amended complaint in which they added several new defendants. [DE 189]. The amended complaint alleges violations of the Fourth Amendment, 18 U.S.C. § 1962, and 42 U.S.C. §§ 1983 and 1985, in addition to claims of false imprisonment, emotional distress, loss of consortium, loss, deprivation, and destruction of property, malicious prosecution, fraud, and treason. Plaintiffs have separated their complaint into the following counts: (1) Violations of 18 U.S.C. §§ 1962(c), 1951, 1341, 1443, 1344, and 1512, and N.C. Gen. Stat.§§ 14-118.4, 87, and 87.1; (2) Violations of 18 U.S.C. § 1962(d); (3) Violations of 42 U.S.C. §§ 1985(2), 1985(3), and 1983; (4) Violations of N.C. Gen. Stat. §§ 14-39, 31, 43.3, 43.11, 51, 51.2, 87, 113.31, 370, 118.4, 221.1, 225, 230, and 231; (5) Violations of the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments and various treaties; (6) False imprisonment; (7) Emotional distress; (8) Loss of Consortium; (9) Loss, deprivation, and destruction of property; (10) Malicious Prosecution; (11) Fraud; (12) Loss of Earning Capacity; and (13) Treason.



A Rule 12(b)(6) motion challenges the legal sufficiency of a plaintiffs complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.2009). When ruling on the motion, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although complete and detailed factual allegations are not required, "a plaintiffs obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions." Twombly, 550 U.S. at 555 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). Similarly, a court need not accept as true a plaintiffs "unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts. v. J.D. Assocs. Ltd., 213 F.3d 175, 180 (4th Cir.2000). A trial court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.

A. Branch Banking and Trust's Motion and Plaintiffs' Related Motion. Defendant Branch Banking and Trust ("BB&T") moves to strike from the pleadings all mention of Tyre Myers, Dameon Myers, and the minor children as parties and to dismiss all claims against BB&T.

Federal Rule of Civil Procedure 11(a) provides "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented." FED. R. Crv. P. 11(a). Here, only one plaintiff, Loushonda Myers, signed the complaint as pro se plaintiff, not in any representative capacity. A non-attorney pro se litigant may not litigate other parties' rights. Myers v. Loudon Cnty. Pub. Sch., 418 F.3d, 400 (4th Cir.2005) ("The right to litigate for oneself, however, does not create a coordinate right to litigate for others."). There is no indication in the complaint that Tyre or Dameon Myers have consented to this action. Furthermore, non-attorney parents may not litigate their minor children's claims. Id. at 401 (explaining "non-attorney parents generally may not litigate the claims of their minor children in federal court"). Accordingly the amended complaint is not in conformity with the requirements of Rule 11 and any mention of plaintiffs Tyre and Dameon Myers and minor children is properly stricken and their claims, if any are dismissed.[1] Further, Chief Judge Dever already addressed the issue of plaintiff Loushonda Myers's representation of her minor children and struck any reference to the minor children as parties. [DE 164 at 2]. This Court finds no reason to disturb the Chief Judge's ruling despite its application to the original complaint rather than the amended complaint.

Defendant BB&T also argues that the amended complaint fails to state a claim and must be dismissed in its entirety. The Court agrees. Plaintiff fails to plead any facts that would allow for a reasonable inference that BB&T is liable for any alleged misconduct.

1. Plaintiff's first and second claims.

Plaintiff's first and second claims for relief relate to plaintiffs various theories of conspiracy under RICO statutes. The RICO statutes "create civil liability for those who engage in a "pattern of racketeering activity." GE Inv. Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir.2001) (citing 18 U.S.C. § 1962). Plaintiff alleges that BB&T and other defendants engaged in racketeering activity including extortion, robbery with a firearm, bank and wire fraud, and tampering with a witness. [DE 189 at ¶¶ 138-88]. Plaintiff makes no specific allegations of any unlawful activity committed by BB&T. Plaintiffs claims under the RICO statutes are therefore factually insufficient and fail to state facts which "raise a right to relief above the speculative level." Twombly, 550 U.S. at 554. Thus, plaintiffs first and second claims must be dismissed.

2. Plaintiff's third claim.

In her third claim for relief, plaintiff alleges a conspiracy under 42 U.S.C. § 1985. [DE 189 at ¶¶ 189-91]. Under § 1985, "a claimant must show an agreement or a "meeting of the minds" by defendants to violate the claimants constitutional rights." Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir.1995). The Fourth Circuit "has rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a § 1985 conspiracy, " and has "specifically rejected section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts." Id. Here, plaintiff's § 1985 claim is conclusory and fails to allege any supporting facts and therefore must be dismissed.

Likewise "[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Additionally, plaintiff purports to claim violations under 42 U.S.C. § 1983. However, "[s]ection 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994). Here, it is unclear what violations plaintiff alleges in her § 1983 claim. Regardless, the claim must fail as BB&T is not a government entity and was not acting under the color of state law. Philips v. Pitt Cnty. Mem'l Hasp., 572 F.3d 176, 181 (4th Cir.2009) ("[M]erely private conduct, no matter how discriminatory or wrongful[, ] fails to qualify as state action."). Therefore, plaintiff's claims for relief under §§ 1985 and 1983 have not stated a claim to relief that "is plausible on its face" and must be dismissed. Iqbal, 556 U.S. at 678.

3. Plaintiff's fifth claim.

Plaintiff's fifth claim for relief alleges violations of her rights under the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments and various treaties. All of these claims fail to state a claim for which relief may be granted. The protections of the Fourth Amendment "protects the sanctity of the person against unreasonable intrusions on the part of all government agents." Sibron v. New York, 392 U.S. 40, 65-66 (1968); see also Honeycutt v. Aetna Ins. Co., 510 F.2d 340, 348 (7th Cir.1975) (explaining that the protections of the Fourth Amendment protects "against unlawful searches and seizures and applies only to governmental action. As BB&T is not a government agent the Fourth Amendment does not restrict any action by BB&T. Additionally, Plaintiff fails to even mention BB&T in their claims for violation of the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments and various treaties. [DE 189 at ¶¶ 217-32]. Therefore plaintiff's fifth claim fails and must be dismissed.

4. Plaintiff's sixth through thirteenth claims.

Plaintiff fails to plead any facts or even mention BB&T in her sixth, seventh, eighth, ninth, tenth, twelfth, and thirteenth claims for relief. Plaintiff's eleventh claim for relief claims BB&T "committed fraud whether in action or by silence where there was a duty to speak." [DE 189 at ¶ 245]. A review of the facts pleaded in support of these claims, even taken as true, reveals BB&T had no connection to and took no part in the conduct described in the claims. Plaintiff has failed to plead any of the facts beyond the speculative level. Any attempt by plaintiff to incorporate BB&T into these claims is factually insufficient. Plaintiff has failed to plead "sufficient factual ...

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