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Ragland v. NC State Board of Education

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

July 11, 2017

KIMARLO ANTONIO RAGLAND, Plaintiff,
v.
NC STATE BOARD OF EDUCATION; WILLIAM COBEY; AL COLLINS; DAN FOREST; JANET COWELL; REBECCA TAYLOR; REGINALD KENAN; KEVIN HOWELL; OLIVIA HOLMES OXENDINE; GREGORY ALCORN; WAYNE MCDEVITT; PATRICIA WILLOUGHBY; ERIC DAVIS; and DR. JUNE ATKINSON Superintendent, Defendants.

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter comes before the court on frivolity review of plaintiff's pro se complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Kimberly A. Swank entered a memorandum and recommendation (“M&R”), wherein it is recommended that the court dismiss in part plaintiff's claims and allow plaintiff's claim for injunctive relief to proceed. Plaintiff timely filed objections to the M&R, accompanied by a motion for appointment of counsel. (DE 5). In this posture, the issues raised are ripe for ruling. For the reasons stated herein, the court denies plaintiff's motion for counsel, adopts in part and rejects in part the M&R, and dismisses the action in its entirety.

         BACKGROUND

         Plaintiff filed motion for leave to proceed in forma pauperis on May 25, 2016, accompanied by proposed complaint and proposed revised complaint, asserting that defendants committed constitutional and statutory violations, as well as state law torts, in terminating him from a public school teaching position and in taking adverse action against plaintiff's teaching license. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief in the form of removal of charges from his personnel file and reinstatement or plaintiff's teaching license. The court incorporates herein the background description of the case set forth in the M&R. (DE 4 at 2-4).

         In M&R entered May 10, 2017, the magistrate judge recommends dismissal of all federal claims for monetary relief on the basis of immunity and for failure to state a claim upon which relief can be granted. The magistrate judge recommends allowing plaintiff's claim for injunctive relief against the North Carolina State Board of Education to proceed, while declining to exercise supplemental jurisdiction over remaining state law claims. Plaintiff filed objections to the M&R on May 23, 2017, seeking appointment of counsel and challenging the magistrate judge's determinations as to immunity, federal claims, and state law claims.

         DISCUSSION

         A. Standard of Review

         The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for “clear error, ” and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 1915(e)(2), the court may dismiss an action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.

         A complaint may be found frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Additionally, a complaint fails to state a claim if it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” sufficient to “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). In evaluating whether a claim has been stated, “[the] court accepts all well-pled facts as true and construes those facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement [, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         1. Motion to Appoint Counsel

         There is no constitutional right to counsel in civil cases, and courts should exercise their discretion to appoint counsel for pro se civil litigants “only in exceptional cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The existence of exceptional circumstances justifying appointment of counsel depends upon “the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) (quotations omitted); see also Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (“If it is apparent . . . that a pro se litigant has a colorable claim but lacks capacity to present it, the district court should appoint counsel to assist him.”). Plaintiff's claim is not complex, and plaintiff has failed to demonstrate that his case is one in which exceptional circumstances merit appointment of counsel. Thus, plaintiff's motion to appoint counsel (DE 5) is DENIED.

         2. Frivolity Review

         a. Claims for ...


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