Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Polidi v. Truax

United States District Court, M.D. North Carolina

March 10, 2017

RICHARD POLIDI, Plaintiff,
v.
WAYNE TRUAX, in each of his official and individual capacities, Defendant.

          MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         This case comes before the Court on Plaintiff's Application to Proceed In Forma Pauperis (Docket Entry 1), in conjunction with his pro se Complaint (Docket Entry 2), as well as on Plaintiff's Request that Proceedings Be Stayed (Docket Entry 5). For the reasons that follow, the Court will deny Plaintiff's Request that Proceedings Be Stayed, and will grant Plaintiff's Application to Proceed In Forma Pauperis for the limited purpose of recommending dismissal of his federal claims under 28 U.S.C. § 1915(e)(2) as frivolous and for failing to state a claim and dismissal without prejudice of his state claims under 28 U.S.C. § 1367(c).

         LEGAL STANDARD

         “The federal in forma pauperis statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts solely because his poverty makes it impossible for him to pay or secure the costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (internal quotation marks omitted). “Dispensing with filing fees, however, [is] not without its problems. . . . In particular, litigants suing in forma pauperis d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit.” Nagy v. FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this concern, the in forma pauperis statute provides that “the [C]ourt shall dismiss the case at any time if the [C]ourt determines . . . the action . . . is frivolous . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2).

         “[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition. . . . The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy, 376 F.3d at 256-57 (some internal quotation marks omitted). In determining frivolousness, the Court may “apply common sense.” Nasim, 64 F.3d at 954.

         Alternatively, a plaintiff “fails to state a claim on which relief may be granted, ” 28 U.S.C. § 1915(e)(2)(B)(ii), 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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (quoting Twombly, 550 U.S. at 557). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.[1]

         BACKGROUND

         This action constitutes one of many lawsuits that Plaintiff has filed in federal court in connection with the 2014 surrender of his North Carolina law license. See Polidi v. Bannon, __F.Supp.3d__, __, 2016 WL 8135476, at *2 (E.D. Va. Dec. 28, 2016) (“This case is the fifth lawsuit that [P]laintiff, a disbarred attorney, has filed in this district in connection with his disbarment by the North Carolina State Bar . . . or the United States Patent and Trademark Office . . . .”). As a neighboring district court noted in dismissing one such suit, Plaintiff filed an affidavit of surrender (the “Affidavit of Surrender”) in a North Carolina state court, and that court entered a consent order of disbarment (the “Consent Order”) in relation to Plaintiff's surrender of his North Carolina law license. See id.; see also Disciplinary Orders, North Carolina State Bar, https://www.ncbar.gov/handlers/DisciplinaryOr derHandler.ashx?url=\Polidi, %20Richard%20Order%20of%20Disbarment. pdf&keyword= (last visited Mar. 9, 2017) (providing copy of the Affidavit of Surrender (cited herein as (Aff. ¶ __) or (Aff. at)) and Consent Order (cited herein as (Consent Ord. at))).[2]In the Affidavit of Surrender, Plaintiff affirmed the following:

1. I desire to resign and hereby tender my license to practice law in North Carolina.
2. My resignation is freely and voluntarily rendered, and is not the result of coercion or duress. I am fully aware of the implications of submitting my resignation.
3. I am aware that there is a pending investigation by the North Carolina State Bar [(the “Bar”)] regarding allegations that I used approximately $16, 000.00 of funds received in connection with the representation of a client [(the “Client”)] for the benefit of myself and the [C]lient, when the [C]lient had assigned the right to those entrusted funds to a third party.
4. I acknowledge that the material facts upon which the investigation referenced above is predicated are true.
5. I am submitting my resignation because I know that if disciplinary charges were predicated upon the misconduct under investigation, I could not successfully defend against them.

(Aff. ¶¶ 1-5 (emphasis added).) The corresponding Consent Order provides, inter alia, that:

In September 2012, [Plaintiff] received approximately $16, 000.00 in connection with the representation of [the] [C]lient. At the time he received the funds, [Plaintiff] was aware that [the] [C]lient had assigned the right to those funds to a third party. [Plaintiff] used the funds for the benefit of himself and the [C]lient without the third party's authorization. [Plaintiff] ultimately transferred to the [C]lient an amount at least equal to the entrusted funds he had received in connection with the case.
[Plaintiff]'s unauthorized use of entrusted funds for personal benefit or the benefit of third parties was in violation of Rule 1.15-2(j) and Rule 8.4(c) of the Rules of Professional Conduct.
. . . [Plaintiff]'s misconduct constitutes grounds for discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2).
[Plaintiff] has engaged in professional misconduct warranting disbarment.
[Plaintiff] is DISBARRED from the practice of law in North Carolina.

(Consent Ord. at 1-2.) Plaintiff signed and notarized the Affidavit of Surrender (Aff. at 1), and he and his attorney signed the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.