United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on an initial review of
Plaintiff's Complaint, (Doc. No. 1), on Plaintiff's
Motion to Proceed in Forma Pauperis, (Doc. No. 2), and on
Plaintiff's “Motion for Stay of Execution, ”
(Doc. No. 3).
Plaintiff, a resident of Charlotte, North Carolina, filed
this action on March 20, 2017, purportedly to challenge
tenant eviction proceedings pending against her in North
Carolina small claims court in Mecklenburg County, North
Carolina. Plaintiff has named the following as Defendants:
(1) the State of North Carolina; (2) Elisa Chinn-Gary,
identified as the Clerk of small claims court in Mecklenburg
County; (3) W. Robert Bell, identified as a superior court
judge in Mecklenburg County; and (4) Thomas L. Avery,
identified as a magistrate judge in Mecklenburg County.
Plaintiff alleges the following:
On March 4, 2017, I found a summons for summary ejectment
lying on the ground near my front door. Since the manner of
service was not performed in the manner stipulated by N.C.
G.S. 1A-1 Rule 4-North Carolina General Assembly there has
been no proper service and there is no proof otherwise.
Additionally, the North Carolina State Constitution, Article
1, Section 5, states: Every citizen of this State owes
paramount allegiance to the Constitution and government of
the United States, and no low or ordinance of the State in
contractive or subversions thereof can have any binding
force.” Therefore under FRCP Rule 4(e)(2)(A) and (B) I
was not served properly.
(Id. at 4). As relief, Plaintiff seeks “actual
damages caused by the stress I suffered due to
Defendants' failure to obey the law in the amount of $1,
000 and punitive damages in the amount of $3, 000 for a total
of $4, 000.” (Id.). Along with her Complaint,
Plaintiff also filed a motion for stay of execution, in which
she states that “[a] judgment was entered by the State
of North Carolina District Court without proper service of
process to Plaintiff. This is a violation of FRCP Rule 4
regarding proper service to a natural person.” (Doc.
No. 3 at 1). In the motion to stay, Plaintiff seeks an order
from this Court “stay[ing] execution of the [state
court] order until [the] Federal Court has reviewed the
II. STANDARD OF REVIEW
Plaintiff seeks to proceed 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,
Secion 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.
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).
Court will dismiss this action for several reasons. First,
because it is not the province of the federal courts to
interfere with ongoing state proceedings, the Court will
abstain from addressing Plaintiff's claims in this
lawsuit as to the state court eviction proceedings against
her.See Younger v. Harris, 401 U.S. 37
(1971). Furthermore, to the extent that Plaintiff seeks an
order from this Court reviewing an order by the state court
in the state court eviction proceedings, this action is
barred by the Rooker-Feldman doctrine, which bars
federal courts from sitting “in direct review of state
court decisions.” District of Columbia Court 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).
to the extent that Plaintiff is attempting to sue the
individual court clerk, magistrate, or judge who presided
over Plaintiff's state court action, these officials are
entitled to absolute judicial (or quasi-judicial) immunity.
See Imbler v. Pachtman, 424 U.S. 409, 419 (1976)
(stating that judicial “immunity applies even when the
judge is accused of acting maliciously and corruptly, and it
is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose
interest it is that the judges should be at liberty to
exercise their functions with independence and without fear
of consequences”) (internal quotations omitted);
Jackson v. Houck, 181 Fed. App'x 372, 373 (4th
Cir. 2006) (The doctrine of judicial immunity “attaches
even if the act in question was in excess of [the
judge's] authority.”) (citing Mireles v.
Waco, 502 U.S. 9, 12-13 (1991)); Imbler, 424
U.S. at 431.
for the reasons stated herein, the Court will dismiss this
action without prejudice.