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Vets-Help.Org-NC, Inc. v. Stein

United States District Court, W.D. North Carolina, Statesville Division

July 28, 2017

JOSH STEIN, [1]Defendant.



         THIS MATTER IS BEFORE THE COURT on Defendant Josh Stein's Motion to Dismiss (Doc. 6) and Plaintiff Craig Northacker's Motion to Proceed in forma pauperis (Doc. 2). The Court filed a Roseboro[2] order notifying Plaintiff of his right to file a response to Defendant's Motion to Dismiss, (Doc. 7), and the Plaintiff timely filed a response (Doc. 8). Stein has not filed a reply to Plaintiff's response and the time to do so has elapsed. Accordingly, Plaintiff's Motion to Proceed in forma pauperis and the Defendant's Motion to Dismiss are now ripe for disposition. For the reasons stated below, Plaintiff's Motion to Proceed in forma pauperis (Doc. 2) is DENIED, Defendant's Motion to Dismiss (Doc. 6) is GRANTED, and Plaintiff's Complaint (Doc. 1) is DISMISSED.

         I. BACKGROUND

         Plaintiff Craig Northacker, proceeding pro se, commenced this action by filing a complaint that raises two claims under 42 U.S.C. § 1983. (Doc. 1). In his complaint, Plaintiff Northacker claims he is a victim of two frauds and that he repeatedly attempted to file felony theft and unlawful conversion charges, but the Attorney General, Roy Cooper, never pursued criminal charges against the offenders. (Doc. 1 at 2). Plaintiff alleges Cooper, serving in his official capacity as North Carolina Attorney General, instead covered up the fraud to gain a political benefit. Id. at 2. Based on these allegations, Plaintiff's Complaint raises two separate claims based on the alleged denial of his First Amendment right to petition the government for a redress of grievances. (See Doc. 1 at 2-5 (first claim), 5-11 (second claim)).

         Plaintiff's first claim relates to his creation and operation of, Inc (“Vets-Help”). Vets-Help is a non-profit corporation designed to help veterans and their families integrate back into their respective communities following service abroad. Id. at 2. In 2011, Plaintiff alleges he borrowed $150, 000 and collaborated with a business partner in order to set up Vets-Help in North Carolina. Id. at 3. Later, Plaintiff completed a background check on his business partner and discovered thirty aliases associated with the partner's name. Id. Plaintiff alleges his business partner engaged in fraudulent activities that harmed him and Vets-Help. (See generally Id. at 2- 5).

         Plaintiff presented his concerns regarding his business partner to the Rowan County Sheriff, the Rowan County Magistrate, and the Rowan County District Attorney. Id. at 4. However, each Rowan County official refused to accept his complaint. Id. Plaintiff then sent a letter to Cooper detailing the wrongs against him and Vets-Help; however, Cooper did not respond to Plaintiff's letter and instead focused on his 2012 election campaign.[3] Id. at 5. Plaintiff alleges that the refusal of Cooper to take action on his complaint by bringing charges against his business partner amounts to a violation of his First Amendment right to petition the government for a redress of grievances. (See generally Id. at 2-5).

         Plaintiff Northacker's second claim relates to his attempted purchase of the Rockingham Speedway on behalf of Vets-Help. (See generally Id. at 5-11). In 2014, Plaintiff hired counsel and sought to purchase the Rockingham Speedway. Id. at 6. Plaintiff alleges he obtained a court order allowing him to purchase a bank note for the Rockingham Speedway; however, the bank never presented Plaintiff with the option to purchase the note. Id. Plaintiff began investigating the bank and claims to have discovered that the bank had too many non-performing loans against the required capital and was close to violating federal standards. Id.

         Plaintiff then petitioned Cooper regarding Plaintiff's discoveries about the bank. Id. Cooper forwarded Plaintiff's complaint to the Banking Commissioner and the Banking Commissioner sent a letter to the bank.[4] Id. Plaintiff alleges the bank interfered with his attempted purchase of Rockingham Speedway by raising the purchase price from $2.7 million to $2.95 million, and he asserts the increase of the purchase price amounts to bank fraud. Id. at 8-9. Plaintiff contacted the Richmond County Attorney and the Richmond County Sheriff, and then petitioned Cooper again to review the alleged facts that Plaintiff believed demonstrated fraud. Id. at 9-10.

         After petitioning Cooper, Plaintiff did not immediately receive any response. Id. Approximately three months after petitioning Cooper, Plaintiff reached out to the Attorney General's office to check on the status of his petition. Id. Two days later, the Attorney General's office emailed Plaintiff explaining they received his petition, but that the Attorney General's office had decided not to pursue the case because the alleged bank fraud “did not impact a larger group of constituents.” Id. at 10.

         Plaintiff contends Cooper buried his petition and, in doing so, violated his First Amendment right to petition the government for a redress of grievances. Id. Plaintiff further alleges that by not pursuing an investigation, Cooper protected his electoral base in Richmond County and received the benefit of their votes in the 2016 North Carolina Gubernatorial election. Id.

         Plaintiff seeks monetary compensation in the form of “restitution of losses, nontaxable compensation for emotional and physical duress, loss of profits and funding opportunities, penalties.” Id. at 13. Plaintiff also seeks sanctions against Cooper, in his capacity as Attorney General, and prospective relief in the form of an “[o]rder to force police compliance with the First Amendment and other similar laws of the land.” Id.

         Plaintiff filed a Motion to Proceed in forma pauperis. (Doc. 2). While his Motion to Proceed in forma pauperis remained pending before this Court, Plaintiff attempted to complete service of process on Cooper. (Doc. 5-1); but see 28 U.S.C. § 1915(d) (“The officers of the Court shall issue and serve all process and perform all duties in [cases proceeding in forma pauperis].”). Defendant moved to dismiss Northacker's complaint, citing Fed.R.Civ.P. 12(b)(1), (b)(2), (b)(6) and Fed.R.Civ.P. 8, and raising defenses including sovereign immunity and failure to state a claim upon which relief may be granted. (Doc. 6). In response, Plaintiff acknowledges defendant's arguments but neither provides salient counterarguments nor additional factual allegations.[5] (Doc. 8).


         A. Standard of Review[6]

         Rule 12(b)(6) provides for the dismissal of a claim based upon a plaintiff's “failure to state a claim upon which relief can be granted.”[7] Fed.R.Civ.P. 12(b)(6). A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In evaluating a motion to dismiss, a court “must accept as true all well-pleaded allegations” and must construe the complaint's factual allegations “in the light most favorable to the plaintiff.” Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). A court, however, “need not accept the legal conclusions drawn from the facts, ...

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