United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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, ...