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Quirk v. Stephens

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

June 2, 2017

JAMES E. QUIRK, Plaintiff,
v.
DONALD W. STEPHENS, et al., Defendants.

          ORDER

          W. Earl Britt Senior U.S. District Judge.

         This matter is before the court on the motion to amend and supplement complaint filed by plaintiff James E. Quirk. (DE # 23.) Also before the court is the motion to dismiss filed by the Honorable Donald W. Stephens, North Carolina Superior Court Judge; the Honorable Paul Gessner, former North Carolina Superior Court Judge; the Honorable Kendra D. Hill, North Carolina Special Superior Court Judge; Kellie Z. Myers; Lisa Tucker; and Teresa B. Fuller (collectively “state judicial defendants”). (DE # 24.) No defendants filed a response to plaintiff's motion to amend and supplement the complaint. Plaintiff, however, filed a response in opposition to the motion to dismiss. (DE # 37.) In this posture, the issues raised are ripe for disposition.

         I. FACTS

         This action arises out of several state court proceedings initiated by plaintiff in North Carolina Superior Court, Wake County, which plaintiff claims the state court wrongfully dismissed. Plaintiff challenges various actions that were taken by state judicial defendants, who were at all relevant times to this action state superior court judges or state court administrators, during the prior state court proceedings.

         The first state proceeding concerned an action filed by plaintiff on 16 January 2014, asserting a personal injury claim against Victor Sequera, Sr. (Compl., DE # 1, at 6 ¶ 1.) Plaintiff filed and gave notice of voluntary dismissal without prejudice on 18 August 2015. (Id. at 6 ¶ 5.) Plaintiff alleges that his voluntary entry of dismissal “clos[ed] that case file forever, and divest[ed] the [c]ourt of jurisdiction.” (Id.) According to plaintiff, on 4 September 2015, Judge Stephens entered an order that “changed a case that was already dismissed without prejudice to a dismissal with prejudice.” (Id. at 6 ¶ 8.) Plaintiff therefore claims that Judge Stephens, in dismissing this case, “altered court records” in a closed case and “entered an unauthorized judgment . . . when he had no jurisdiction” to do so. (Id.)

         The second state proceeding concerned an action filed by plaintiff on 11 February 2015, asserting a personal injury claim against Victor Sequera, Jr. (Id. at 6 ¶ 3.) On 24 August 2015, plaintiff filed and gave notice of voluntary dismissal without prejudice, which he claims “clos[ed] that case file forever, and divest[ed] the [c]ourt of jurisdiction.” (Id. at 6 ¶ 6.) Plaintiff alleges that the following day, on 25 August 2015, Judge Gessner entered an order that “changed a case that was already dismissed without prejudice to a dismissal with prejudice.” (Id. at 6 ¶ 7.) He therefore claims that Judge Gessner, in dismissing his case, “altered court records” in a closed case and “entered an unauthorized judgment . . . when he had no jurisdiction” to do so. (Id.)

         The third state proceeding concerned an action filed by plaintiff on 1 February 2016, asserting a personal injury claim against both Sequera, Sr. and Sequera, Jr. (Id. at 6 ¶ 9.) According to plaintiff, Judge Hill “(without cause) capriciously and arbitrarily removed all of plaintiff's motions from the calendar . . ., while simultaneously hearing defendants' 12(b)(6) motions to dismiss.” (Id. at 7 ¶ 11.) After hearing the motions, Judge Hill dismissed plaintiff's complaint pursuant to Rule 12(b)(6). (Id.) Plaintiff claims that Judge Hill wrongly dismissed his complaint based “on the two post hoc unlawful/illegal unauthorized judgment/orders in the two underlying cases” presided over by Judge Stephens and Judge Gessner. (Id.)

         On 22 August 2016, plaintiff commenced this action by filing a pro se complaint pursuant to 42 U.S.C. § 1983. (DE # 1.) Plaintiff named the following state court officials, both in their individual and official capacities as defendants: Judge Stephens, Judge Gessner, Judge Hill, Myers, Tucker, and Fuller. (Id. at 1.) Plaintiff also named as defendants Sequera, Sr., Sequera, Jr., and two individuals who assisted in Sequera, Sr.'s legal defense. (Id.) Plaintiff asserts that by working in conjunction with Sequera, Sr. and Sequera, Jr., state judicial defendants committed fraud when they denied, and conspired to deny, plaintiff of his constitutional rights to due process, equal protection, and access to the courts in violation of § 1983. (Id. at 3.) Plaintiff seeks declaratory and injunctive relief and monetary damages on his claims. (Id. at 8.)

         The other named defendants filed answers to plaintiff's complaint on 16 September 2016. (DE ## 15, 17, 18, 21.) On 26 September 2016, plaintiff filed a motion to amend and supplement the complaint pursuant to Federal Rule of Civil Procedure 15. (DE # 23.) State judicial defendants subsequently moved for dismissal of the complaint on 17 October 2016. (DE # 24.)

         II. ANALYSIS

         A. Motion to Amend and Supplement Complaint

         Plaintiff first seeks leave of court to amend his complaint pursuant to Federal Rule of Civil Procedure 15(a), so that he can add former Governor McCrory as an additional defendant. (Pl.'s Mem. Supp. Mot. Am., DE # 23-1, at 1.) Based upon a review of the proposed amended complaint, (DE # 23-4), it appears that plaintiff seeks to name Governor McCrory as a defendant in both his individual and official capacities, and to assert a supervisory liability claim against him.

         Pursuant to Rule 15(a), “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, a party may only amend a pleading by leave of the court or by written consent of the defendant. Fed.R.Civ.P. 15(a)(2). Where a party does not assert an entitlement to amend as of right, but instead asks the court for leave to amend, leave to amend should be freely given when justice so requires. Jonson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 124-25 (2d Cir. 2011) (citing Fed.R.Civ.P. 15(a)(2)). Notwithstanding this rule, a court can deny leave to amend when the amendment would be futile. United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000).

         An amendment is futile where it would fail to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim. Wolfenden v. Long, No. 5:09-CV-00536-BR, 2010 WL 2998804, at *7 (E.D. N.C. July 26, 2010) (citing Syngenta Crop Prot. v. United States EPA, 222 F.R.D. 271, 278 (M.D. N.C. 2004)). To survive a Rule 12(b)(6) motion to dismiss, a complaint must 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While the court must construe pro se complaints liberally, Laber v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006), the allegations in the complaint must be enough to raise the right to relief above the speculative level, Twombly, 550 U.S. at 555. However, “the Fourth Circuit has held that ‘[l]eave to amend . . . should only be ...


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