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Carter El-Bey v. Gessner

United States District Court, W.D. North Carolina, Charlotte Division

January 9, 2015

DIANNE MICHELE CARTER EL-BEY, Plaintiff,
v.
PAUL GESSNER, Defendant.

ORDER

GRAHAM C. MULLEN, District Judge.

THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1), and on Plaintiff's Motion to Proceed in Forma Pauperis, (Doc. No. 2). Having conducted an initial review of the Complaint as required by 28 U.S.C. § 1915, the Court will grant Plaintiff's Motion to Proceed in Forma Pauperis, and the Court will dismiss this action with prejudice.

I. FACTS

On December 16, 2014, pro se Plaintiff Dianne Michele Carter El-Bey filed the instant Complaint, naming the following twenty persons as Defendants: (1) Paul G. Gessner, identified as a judge in Wake County, North Carolina; (2) Forrest Bridges, identified as a "visiting judge" in Mecklenburg County, North Carolina; (3) F. Lane Williamson, identified as a judge in Mecklenburg County, North Carolina; (4) Sylvia B. Cherry, identified as a magistrate in Mecklenburg County, North Carolina; (5) Donald Cureton, identified as a judge in Mecklenburg County, North Carolina; (6) Matthew J. Osman, identified as a judge in Mecklenburg County, North Carolina; (7) Rebecca Tin, identified as a judge at Mecklenburg County, North Carolina; (8) Regan M. Miller, identified as a judge in Mecklenburg County, North Carolina; (9) John Lynch, identified as a notary agent with the North Carolina Secretary of State in Raleigh, North Carolina; (10) R. Andrew Murray, identified as a district attorney in Mecklenburg County, North Carolina; (11) Frederick R. Benson, identified as an assistant clerk with the Mecklenburg County Superior Court; (12) Irwin Carmichael, identified as the Sheriff of the Mecklenburg County Sheriff's Office; (13) Marilyn Porter, identified as the managing attorney with the Mecklenburg County Sheriff's Office; (14) Phillip Moody, identified as a sheriff sergeant with the Mecklenburg County Sheriff's Office; (15) Sylvia M. Deese, identified as a deputy sheriff with the Mecklenburg County Sheriff's Office; (16) C. Shannon, identified as a deputy sheriff with the Mecklenburg County Sheriff's Office; (17) W.J. Van Allen, identified as a deputy sheriff with the Mecklenburg County Sheriff's Office; (18) Charles E. Lyons, identified as an attorney with the law firm of Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A.; (19) Michael S. Hunter, identified as an attorney with the law firm of Horack, Talley, Pharr & Lowndes, P.A.; and (20) R. Keith Johnson, identified as a bankruptcy attorney.

The caption of the Complaint identifies Plaintiff's action as one brought under "Title II of the ADA for Violations of Due Process of Law." (Doc. No. 1 at 1). Furthermore, Plaintiff states that jurisdiction is proper under 28 U.S.C. § 1331, 28 U.S.C. § 1332, and 42 U.S.C. § 12101. Plaintiff also states that she is bringing her claims against all Defendants in their individual and official capacities, and that most of the Defendants are alleged to have acted under color of state law at the time the alleged claims arose. The allegations that certain Defendants were acting "under color of state law" suggest that Plaintiff is also attempting to bring this action under 42 U.S.C. § 1983.

In her eighteen-page complaint, Plaintiff, who appears to identify herself as a member of the Moorish Holy Temple of Science, alleges that the named Defendants violated her due process rights, among other things. Plaintiff appears to be complaining about various criminal and civil actions brought against her in North Carolina state court, including traffic infractions, a residential foreclosure, and the repossession of an automobile. The Court takes judicial notice that on March 17, 2014, Plaintiff filed Chapter 13 bankruptcy in this Court. See (No. 14cv30410 (Bankr. W.D. N.C. )). The Court also takes judicial notice that a Westlaw search of Plaintiff's criminal records in North Carolina shows numerous criminal charges against Plaintiff, some of which have been dismissed or otherwise disposed of, including performing notarial acts when not commissioned, as well as traffic infractions for driving without insurance, driving without registration, using a fictional registration car or license tag, and fleeing to elude arrest. The public records also show various liens, including a federal tax lien, filed against Plaintiff, as well as two civil lawsuits against Plaintiff in Mecklenburg County, with one civil judgment against Plaintiff in Mecklenburg County Superior Court.

Plaintiff's Complaint enumerates three claims, or "Counts" brought against the named Defendants: (1) "Violations of Due Process of Law" (Count One); (2) "Conspiracy against Rights, 18 U.S.C. § 241" (Count Two); and "Deprivation of Right under Color of Law, 18 U.S.C. § 242" (Count Three). (Doc. No. 1 at 8; 15). Plaintiff alleges that the Defendant state court judges and magistrates violated her due process rights by issuing arrest warrants against Plaintiff, by entering numerous criminal judgments against her traffic citations and other unspecified state crimes, and by entering preliminary injunctions against her and cancelling UCC liens in various state civil cases. Plaintiff alleges that Defendant Andrew Murray violated Plaintiff's due process rights by prosecuting a "frivolous" criminal case against Plaintiff. (Id. at 11). Plaintiff alleges that the Defendant sheriffs and deputy sheriffs violated Plaintiff's due process and other rights when Plaintiff was arrested and detained for various criminal infractions, when Plaintiff's automobile was auctioned and sold, and when, in August 2014, Defendant Hunter took possession of a house belonging to the Moorish Holy Temple of Science/Moorish Science Temple of America and administered by Plaintiff as trustee. (Id. at 12; 13; 14). Plaintiff alleges that Defendant Benson violated Plaintiff's due process and First Amendment rights when "ruling over case 10-SP-3378 on June 3, 2010, when Benson refused to allow[] Petitioner, as trustee, to speak on behalf of the Moorish Holy Temple of Science." (Id. at 12). Plaintiff alleges that Defendant Lynch "violated due process of law in 2011 when he signed a warrant claiming 2 counts of felony, knowing such to be false, which caused Petitioner to be arrested and imprisoned for 6 days." (Id. at 11). Plaintiff alleges that Defendant Porter violated Plaintiff's due process rights from December 22, 2011, through January 5, 2012, by conspiring with Defendant Hunter to retain Petitioner in jail for fourteen days past the date Plaintiff should have been released. (Id. at 13).

Plaintiff also alleges in the Complaint that Defendants violated Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Plaintiff alleges that the various private attorneys violated the federal Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq., by refusing, in a state foreclosure action, to provide the "names of the real party in interest and [by failing] to validate [Plaintiff's] purported debt." (Id. at 14). Plaintiff states that she previously "sought informal administrative relief regarding the acts complained of in this Complaint in the form of tort claims and bankruptcy filing." (Id. at 16). Plaintiff states that, as relief, she seeks compensatory damages against the named Defendants. (Id.).

The Court first addresses Plaintiff's Motion to Proceed in Forma Pauperis. In support of the motion, Plaintiff states that she had an average monthly income of $1000 during the past twelve months and that she expects to receive the same income next month. See (Doc. No. 2 at 2). Plaintiff further attests that she has no cash and no funds in any financial institutions. (Id.). Plaintiff reports monthly expenses totaling $897. (Id. at 3). Because the Court finds that Plaintiff lacks sufficient funds with which to pay the filing fee, the Court will grant Plaintiff's Motion to Proceed in Forma Pauperis.

II. STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "frivolous or malicious [or] fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial review of a "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, " and the court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.

In its frivolity review, this Court must determine whether the 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 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

This action will be dismissed on numerous grounds. First, to the extent that Plaintiff is attempting to seek review by this federal court of the North Carolina state court decisions to which she refers in the Complaint, her action is barred by the Rooker-Feldman doctrine, which bars federal courts from sitting "in direct review of state court decisions." District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482-84 (1983). See also Curley v. Adams Creek Assocs., 409 Fed.App'x 678, 680 (4th Cir. 2011) (holding that Rooker-Feldman precluded subject matter jurisdiction over plaintiff's claim that the state court violated her due process rights by failing to give her notice before disposing of real property owned by her). Similarly, Plaintiff may not ...


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