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Kebort v. Stiehl

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

May 17, 2018

Nancy Kebort, et al., Plaintiff,
v.
Robert Stiehl, et al., Defendants.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         The court previously allowed Plaintiff Nancy Kebort to proceed without paying the required filing fee or other costs normally associated with a civil lawsuit (otherwise known as proceeding “in forma pauperis” or “IFP”). D.E. 9. Given her indigent status, federal law requires that the court examine the viability of Ms. Kebort's claims. The court must dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary damages from a party who is immune from such relief. 28 U.S.C. § 1915(e). After reviewing Ms. Kebort's Complaint, the undersigned magistrate judge recommends that the Complaint be dismissed without prejudice.

         I. Background

         Ms. Kebort, proceeding pro se, filed this action on behalf of herself and her minor son, BHK, against six defendants: James Cooke, her attorney; Gerald Kebort, her ex-husband, and Margit Hicks, Mr. Kebort's attorney; Judges Robert Stiehl and Clark Reaves, who participated in her divorce and child custody hearings; and Judge Elizabeth (Beth) Keever, a retired judge who presided over a mediation between Ms. Kebort and her ex-husband.

         In June 2013, Ms. Kebort saw an attorney, Randy Gregory, to discuss divorce from Mr. Kebort, child custody, and possible alimony. Compl. 31, D.E. 1-2. Mr. Kebort learned of Ms. Kebort's meeting by happenstance. Id. He apparently hired his own lawyer shortly thereafter, because in September he asked for and received an ex parte order granting him custody of BHK, the child he had with Ms. Kebort. Id. at 40.

         The decoupling pair had various appearances in North Carolina state court, primarily before Judge Stiehl. Ms. Kebort alleges that during one hearing, Judge Stiehl pounded his fist on his desk, threw papers up into the air, and yelled at her, prompting those in the gallery to come up to her afterwards and give their name and phone number so they could testify on her behalf to what happened. Id. at 13.

         In part because Ms. Kebort regularly had seizures, id. at 12, 22, 26, 32, and in part because Mr. Kebort accused her of being bipolar, id. at 125, Judge Stiehl ordered her to be evaluated by a psychiatrist and prevented her from seeing her son until the court was satisfied that her son would be safe in her presence. See Id. at 36-37. Judge Stiehl set a trial date in February 2016 to address issues related to their divorce, child custody, alimony, and division of assets. See Id. at 37.

         Ms. Kebort claims that throughout these proceedings, her ex-husband's attorney, Ms. Hicks, lied to the court on numerous occasions about Mr. Kebort's assets and about Ms. Kebort's fitness to care for BHK. See, e.g., Id. at 42, 69-70, 95-98. Her claims range from an allegation that Ms. Hicks misdated paperwork, id. at 98, to an allegation that Ms. Hicks told the court that Ms. Kebort slapped her son, when really she only “pop[ped]” him in the mouth for starting to curse, id. at 69.

         After two other attorneys withdrew from representing Ms. Kebort and another refused to take her on as a client, James Cooke agreed to represent her in October 2014. Id. at 121. Seven months later, he, too, asked the court to allow him to withdraw. Id. The court did not grant his request until early December 2015, and he told Ms. Kebort his withdrawal would be effective January 19, 2016, a couple weeks before her trial. Id. Ms. Kebort alleges that Cooke inadequately assisted her throughout his representation of her and that leaving her so soon before trial violated the Rules of Professional Conduct. Id. at 14.

         After he requested leave to withdraw but before the court granted his motion, Mr. Cooke represented Ms. Kebort in a mediation with Mr. Kebort and Ms. Hicks before Judge Keever, acting as a private mediator. Id. at 100. At the end of her mediation, Mr. Cooke asked Ms. Kebort to sign the second page of a yellow legal pad. Id. at 101. After she received a copy of the first and second pages in the mail, she says that the first page did not represent what they had talked about and that she would not have signed to the terms written on the first page. Id.

         Ms. Kebort asked for her own ex parte order from Judge Reaves in August 2014, about one year after Judge Stiehl granted Mr. Kebort an ex parte order. Id. at 36. Judge Reaves denied her request. Id. Mr. Kebort seems to have filed an emergency ex parte motion to further restrict Ms. Kebort's access to BHK the same day, which Judge Stiehl granted. See id.

         II. Analysis

         As noted above, the court must analyze the viability of the claims contained in Ms. Kebort's Complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. Specifically, the court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. at § 1915(e)(2)(B).

         A complaint fails to state a claim upon which relief may be granted if it 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). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Ms. Kebort's pro se status relaxes, but does not eliminate, the requirement that her Complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, ...


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