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Morrison v. Myers

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

January 6, 2015



W. EARL BRITT, Senior District Judge.

This matter is before the court on defendant George B. Currin's ("Currin") motion for a pre-filing injunction, (DE # 25), and motion to dismiss, (DE # 36); defendants Wayne R. Myers, Stephen A. West, Dennis Duffy, and S. Katherine Burnette's motion to dismiss, (DE # 29); and plaintiff Donald Morrison's motion to disregard defendant Currin's motion for a pre-filing injunction, (DE # 32). Plaintiff filed a response to Currin's motion to dismiss. (DE # 39.) Plaintiff also filed two documents which attempt to provide the court with supplemental information and request additional relief. (DE ## 35, 40.)


Donald L. Morrison ("plaintiff"), proceeding pro se, filed this action on 5 May 2014. (DE # 1.) On 28 August 2014, plaintiff filed a document titled "Correction/Clarification, " (DE # 23), which the court treated as a motion to amend his complaint. The court granted the motion, (DE # 33), and on 3 October 2014, the Clerk, as directed, re-filed his original complaint and attached the "Correction/Clarification" document. (DE # 34.) The court will consider this as plaintiff's amended complaint.[1]

While plaintiff's specific causes of action are unclear, he alleges that a prior criminal conviction in this court resulted from an unlawful trial and "illegal judgment and sentencing." (Id. at 1.) He states that his conviction was "without due process." (Id. at 5.) Specifically, plaintiff contends that the trial judge should have declared a mistrial because "the first [fifteen] counts [of the indictment] were illegal and the trial should have been stopped for lack of expert and knowledgeable witnesses...." (Id. at 2.)

Plaintiff goes on to argue that the government's seizure of his bank account and car was illegal. (Id. at 3.) He also maintains that his custody pending sentencing amounted to false imprisonment and violated his "right to a speedy trial and sentencing." (Id.) In addition, he appears to assert a claim of legal malpractice against defendant Currin for submitting a brief without plaintiff's permission. (Id. at 4.) Plaintiff makes several other claims, including that the trial judge convicted and sentenced him on a charge not included in the indictment. (Id.) He asks the court to cleanse his record and dismiss his criminal case. (Id. at 4.) He additionally seeks "to be repaid for what money was taken unfairly from him, " plus "[six percent] interest for damages." (Id.)

Plaintiff's conviction for, among other charges, conspiracy to defraud the United States, making false statements, and mail fraud, was upheld by the Fourth Circuit Court of Appeals in 2009. United States v. Morrison, 333 F.App'x 741, 742 (4th Cir. 2009) (unpublished). This complaint marks plaintiff's third attempt to hold the named defendants civilly liable for the alleged wrongdoings that lead to his conviction. Currin served as plaintiff's defense counsel during some stages of his criminal proceeding. (DE # 34, at 6.) Wayne R. Myers, Stephen A. West, Dennis Duffy, and S. Katherine Burnette (collectively "governmental defendants") were federal officials involved in various capacities in the prosecution of plaintiff. (Id. at 2-4.) In 2011, plaintiff filed in this court his first complaint against the named defendants regarding his conviction. (Case No. 7:11-CV-168-BO, DE # 1.) Judge Terrence Boyle dismissed the suit against Currin based on lack of subject matter jurisdiction and, alternatively, under North Carolina's statutes of limitations and repose. (Id., DE # 27, at 4-6.) Judge Boyle dismissed the claims against the governmental defendants for failure to effect proper service. (Id. at 8; Id., DE # 32, at 3.)

In 2012, plaintiff filed a second action in this court against the named defendants related to his conviction. Morrison v. Holding, No. 7:12-CV-253-BO, 2013 WL 1975379 (E.D. N.C. May 13, 2013). Judge Boyle dismissed the claim against Currin on res judicata grounds and, alternatively, for failure to state a claim. Id. at *3. He dismissed the claims against the governmental defendants based on lack of subject matter jurisdiction and failure to state a claim, and under Heck v. Humphrey, 512 U.S. 477 (1994). Id . On appeal, the Fourth Circuit Court of Appeals declined to uphold dismissal as to Currin on res judicata grounds, but found that the district court lacked subject matter jurisdiction to hear the claim. Morrison v. Holding, 539 F.App'x 272, 273 (4th Cir. 2013) (unpublished). The appellate court upheld the dismissal as to the governmental defendants based on the reasons stated by the district court. Id.

Now, Currin seeks dismissal of plaintiff's complaint based on the reasons set forth in this court's and the court of appeal's previous orders dismissing plaintiff's nearly identical claim. (DE # 37, at 3.) He also seeks a pre-filing injunction to prohibit plaintiff from filing further claims against him regarding this matter. (DE # 26, at 2.) The governmental defendants argue that plaintiff's complaint against them must be dismissed for lack of subject matter jurisdiction, failure to state a claim, and under the doctrine of res judicata. (DE # 30, at 1.)[2]


In response to a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of showing that federal jurisdiction is appropriate. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (citation omitted). A district court should allow a Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

Rule 12(b)(6) permits a court to dismiss an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A 12(b)(6) motion should only be granted if "it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, a complaint that proffers only "a formulaic recitation of the elements of a cause of action" with no "further factual enhancement" is insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). To survive dismissal, a party must come forward with "enough facts to state a claim to relief that is plausible on its face." Id. at 548. The plausibility standard is met "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all well-pleaded allegations and must draw all reasonable factual inferences in favor of the plaintiff. See Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005).

A court may take judicial notice of matters of public record without converting a motion to dismiss into one for summary judgment. See Clark v. BASF Salaried Emps. Pension Plan, 329 F.Supp.2d 694, 697 (W.D. N.C. 2004). Accordingly, the court will consider exhibits attached to defendants' motions to the extent ...

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