United States District Court, M.D. North Carolina
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Patrick Auld, United States Magistrate Judge
matter comes before the undersigned United States Magistrate
Judge on the Application to Proceed in District Court Without
Prepaying Fees or Costs (the “Application”)
(Docket Entry 1) filed by Erica Lindiment (the
“Plaintiff”) in conjunction with her pro se
Complaint (Docket Entry 2) against (i) the Rockingham County
Child Protective Services (the “Rockingham County
CPS”), Marry [sic] Harris, Martha Meadows,
Andre Chambers, Michael S. Mitchell DM, Jennifer Watkins
(collectively, the “Original Defendants”), (ii)
James E. Reaves (“Reaves”), Felissa H. Ferrell
LCSW/Director, Stephanie Harriet, “My kids G.A.L. name
unknown at this time” (id. at 2),
Lori Priddy, Bridgett Jones (“Jones”),
“Rockingham Co. Court System” (id. at
6), Judge Christine Strayer (collectively, the
“Additional Defendants”), and (iii) Beverly Smith
(“Smith, ” and collectively with Original
Defendants and Additional Defendants, the
“Defendants”). The undersigned will grant the
Application for the limited purpose of recommending dismissal
of this action.
FORMA PAUPERIS PRINCIPLES
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, [i]s 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 court shall dismiss
the case at any time if the court determines that . . . the
action . . . (i) is frivolous or . . . (ii) fails to state a
claim on which relief may be granted.” 28 U.S.C. §
the first of these grounds, “a 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 954.
the second ground, 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. (internal quotation marks omitted). 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.”
federal courts possess limited jurisdiction, such that they
may “exercise only the authority conferred by Article
III of the Constitution and affirmatively granted by federal
statute.” In re Bulldog Trucking, Inc., 147
F.3d 347, 352 (4th Cir. 1998). No presumption of jurisdiction
applies, Pinkley, Inc. v. City of Frederick, Md.,
191 F.3d 394, 399 (4th Cir. 1999); instead, federal courts
must determine if a valid jurisdictional basis exists and
“dismiss the action if no such ground appears, ”
Bulldog Trucking, 147 F.3d at 352; see also
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 480 (4th Cir. 2005) (“A
federal court has an independent obligation to assess its
subject-matter jurisdiction, and it will ‘raise a lack
of subject-matter jurisdiction on its own
motion.'”); Fed.R.Civ.P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
Generally, federal courts possess jurisdiction over
“actions arising under the Constitution, laws, or
treaties of the United States, ” 28 U.S.C. § 1331,
and actions involving citizens of different states, 28 U.S.C.
§ 1332. Facts supporting jurisdiction must appear in the
complaint, Pinkley, 191 F.3d at 399, and the party
asserting federal jurisdiction bears the burden of
“show[ing] that jurisdiction does, in fact, exist,
” Davis v. Pak, 856 F.2d 648, 650 (4th Cir.
1988) (internal quotation marks omitted). The Court may
consider subject-matter jurisdiction in assessing frivolity
under § 1915. See Cummings v. Rahmati, No.
1:17cv196, 2017 WL 1194364, at *1 (M.D. N.C. Mar. 30, 2017),
recommendation adopted, slip op. (M.D. N.C. Apr. 20,
October 2016, Plaintiff initiated a lawsuit (the
“Original Suit”) raising substantially the same
claims against Smith and Original Defendants. See
Lindiment v. Smith, No. 1:16-cv-1269, Docket Entry 2
(the “Original Complaint”) (M.D. N.C. Oct. 28,
2016). The Court (per United States Magistrate Judge Joi
Elizabeth Peake) recommended dismissing the Original Suit
“for being frivolous and for failing to state a claim
upon which relief may be granted.” Lindiment v.
Smith, No. 1:16-cv-1269, Docket Entry 5 (the
“Recommendation”) at 6 (M.D. N.C. Nov. 25, 2016).
More specifically, the Recommendation advised that the
domestic relations exception to federal jurisdiction,
id. at 2-3, the Younger abstention
doctrine, id. at 3, and the Rooker-Feldman
doctrine, id., rendered frivolous Plaintiff's
Original Complaint. It further concluded that, “[i]n
addition to th[o]se bases for dismissal, a review of the
specific allegations that Plaintiff makes as to each
[d]efendant shows that she has failed to state a claim upon
which relief may be granted.” Id. at 4. At the
conclusion of this analysis, the Recommendation observed that
the dismissal should occur “without prejudice to
Plaintiff pursuing whatever state law claims she may
have.” Id. at 6.
“Response to Recommendation, ” Plaintiff
presented certain new claims and asked for time to
“rewrite and reenter these Court proceedings and the
latest happenings in this suit.” Lindiment v.
Smith, No. 1:16-cv-1269, Docket Entry 7 (the
“Objections”) at 1-2 (M.D. N.C. Dec. 12, 2016).
Thereafter, the Court (per United States District Judge
Loretta C. Biggs) adopted the Recommendation and dismissed
the Original Suit. Lindiment v. Smith, No.
1:16-cv-1269, Docket Entry 8 (the “Dismissal
Order”) at 1-2 (M.D. N.C. Dec. 28, 2016). In so doing,
the Dismissal Order stated:
To the extent that Plaintiff attempts to summarily assert new
claims in her [O]bjections and then asks for more time to
“rewrite and reenter” the new claims, the Court
notes that this case is being dismissed without prejudice to
Plaintiff filing her new claims on the proper forms
correcting the problems noted in the Recommendation.
Id. at 1. The Court cautioned, however, that the
claims against Smith, Jones, and the specified Original
Defendants expressed in the Objections “fail for the
same reasons set out in the Recommendation.”
2, 2017, Plaintiff filed the Application and Complaint.
(See Docket Entries 1, 2.) The following week,
Plaintiff filed a “Corrections to Defendants List,
” which states that “Ms Felissa H. Ferrell LCSW
may or may not be the person that sent the police away. I
[sic] may be Philis Conus.” (Docket Entry 5
(the “Correction”) at 1.) On June 20, 2017,
Plaintiff filed a supplement to the Complaint, which
includes, inter alia, emails dated as of June 19,
2017, regarding Plaintiff's ongoing child custody
proceedings. (See Docket Entry 6 (the
“Supplement”) at 58-59.) The Complaint,
Correction, and Supplement collectively present the claims
expressed in the Original Suit against Original Defendants
and Smith as well as claims against Additional Defendants and
Smith related to developments in Plaintiff's child
custody dispute since she filed the Original Suit. As relief
for her claims, Plaintiff requests that “all files
filed in Roc[kingham] Co. from the date of Sept 5 2016 to now
to be dismissed. . . & or [her] kids to be removed from
Roc[kingham] Co[unty] CPS to ambulance co. where no conflict
is.” (Docket Entry 2 at 15.) Plaintiff further requests
“[her] case to be moved from Roc[kingham] Co. &
stop [sic] all court filing they have in place . . .
& to put in place writs of habeas corpus returning all
kids to [her].” (Id.)
exists regarding the identity of the purported plaintiff(s)
in this action. To begin with, the Complaint's caption
identifies only Erica Lindiment as a plaintiff. (See
Id. at 1 (listing “Erica Lindiment”);
see also Docket Entry 1 at 1 (listing “Erica
Sample Lindiment” in the Application's
caption).)Meanwhile, the Correction bears the caption
“Lindiment v. Jones eta” (Docket Entry 5 at 1),
and the Supplement identifies “Erica &
Lindiments” as “Plaintiffs, ” but
classifies “[her] kids” as “the
witnesses” (Docket Entry 6 at 1). Finally, two sections
of the Complaint identify Plaintiff's minor children as
plaintiffs. (See Docket Entry 2 at 1, 7; see
also Docket Entry 1 at 3 (listing minors' ages and
relationship).) Under these circumstances, it remains unclear
whether Plaintiff attempts to pursue claims on behalf of her
minor children. To the extent, though, that Plaintiff seeks
to present such claims, they necessarily fail.
to this Court's Local Rules, minors may sue “only
by their general or testamentary guardians within this state
or by guardians ad litem appointed by this Court.” M.D.
N.C. LR 17.1(a).Plaintiff does not contend that she
qualifies either as a general or testamentary guardian or as
a court-appointed guardian ad litem for the minors.
(See Docket Entries 2, 2-1, 5, 6.) Moreover, the
record reveals no appointment of Plaintiff as the minors'
guardian. (See Docket Entries dated June 2, 2017, to
present.) In addition, by naming “[her] kids
G.A.L.” as a defendant (Docket Entry 2 at 2), Plaintiff
tacitly acknowledges that the North Carolina courts have
appointed someone else the minors' guardian ad litem.
Finally, Plaintiff's allegations and exhibits regarding
ongoing child custody proceedings (see, e.g.,
id. at 10, 13; Docket Entry 6 at 58-60) establish
that North Carolina officials have not appointed her as
general guardian of the minors. See Corbett v.
Lynch, 795 S.E.2d 564 ( N.C. Ct. App. 2016) (examining
relationship between guardianship and custody proceedings and
concluding that appointment of general guardian mooted child
custody proceeding); McKoy v. McKoy, 202 N.C.App.
509, 515, 689 S.E.2d 590, 594 (2010) (explaining that
“the clerk of superior court has exclusive jurisdiction
over guardianship matters, ” including any custody
matters arising after the guardian's appointment (citing
decision involving “abuse, dependency, and neglect
the minors do not qualify as parties to this action, and (pro
se) Plaintiff cannot assert any claims on their behalf.
See M.D. N.C. LR 17.1(a); see also Shepherd v.
Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002)
(explaining that “parents cannot appear pro se
on behalf of their minor children because a minor's
personal cause of action is her own and does not belong to
her parent or representative” and affirming dismissal
of minor's 42 U.S.C. § 1983 claim). Thus only
Plaintiff's individual claims remain before the Court.
Complaint asserts both diversity jurisdiction, pursuant to 28
U.S.C. § 1332, and federal question jurisdiction,
pursuant to 28 U.S.C. § 1331. (See Docket Entry
2 at 6.) According to the Complaint, Plaintiff and all
Defendants qualify as citizens of North Carolina. (See
id. at 6, 8-9; see also id. at 1, 3-5.) Under
Section 1332(a), “jurisdiction does not exist unless
each defendant is a citizen of a different State
from each plaintiff.” Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original). Because Plaintiff and Defendants do
not satisfy this standard, the Court lacks diversity
jurisdiction over this matter.
regard to federal question jurisdiction, the Complaint
states: “The moorish science treaties/I challenged
jurisdiction 14 Amendment” (Docket Entry 2 at 6).
(See also id. at 9 (detailing “Statement of
Claim” as “When I challenged jurisdiction they
did not stop to prove they had jurisdiction in my case. &
they are hurting my kids”), 10 (alleging that a
defendant “violated our rights by . . . calling CPS . .
. where he had no jurisdiction of Moorish
Americans”).) The statutory basis for federal claims
involving constitutional violations by state actors appears
in 42 U.S.C. § 1983. See id.; see also
Cummings, 2017 WL 1194364, at *2 n.3. “To state a
claim for relief in an action brought under § 1983,
[Plaintiff] must establish that [she] w[as] deprived of a
right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under
color of state law.” American Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49-50 (1999). As a general
matter, “Section 1983 provides no remedy for common law
torts, ” Bailey v. Prince George's Cty.,
34 F.Supp.2d 1025, 1027 (D. Md. 1999) (citing Street v.
Surdyka, 492 F.2d 368, 371 (4th Cir. 1974)), or for
conduct by state agencies, see Will v. Michigan Dep't
of State Police, 491 U.S. 58, 70-71 (1989).
Res Judicata ...