United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Patrick Auld United States Magistrate Judge
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. §
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. §
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
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,
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.”
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,
%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))).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
(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
. . . [Plaintiff]'s misconduct constitutes grounds for
discipline pursuant to N.C. Gen. Stat. § 84-28(b)(2).
[Plaintiff] has engaged in professional misconduct warranting
[Plaintiff] is DISBARRED from the practice of law in North
(Consent Ord. at 1-2.) Plaintiff signed and notarized the
Affidavit of Surrender (Aff. at 1), and he and his attorney
signed the ...