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Fullard v. Horne

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

July 5, 2018

REGINALD FULLARD, Plaintiff,
v.
DANIEL M. HORNE, JR., MICHAEL R. MORGAN, J. BRYAN BOYD, and M.C. HACKNEY, Defendants.[[1]]

          ORDER

          LOUISE W. FLANAGAN United States District Judge

         This matter is before the court on defendants' motion to dismiss (DE 21) pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (5), and (6), and motion to stay discovery pending resolution of the motion to dismiss (DE 30). The matter is also before the court on the following motions filed by plaintiff: 1) to appoint counsel (DE 25); 2) for summary judgment (DE 27); 3) for extension of time to file additional materials (DE 35); 4) for continuance (DE 36); 5) to accept filings as timely filed (DE 38); 6) to appoint counsel (DE 39); 7) for new trial (DE 40); and 8) to proceed (DE 41). The issues raised are ripe for adjudication. For the following reasons, the court grants defendants' motion to dismiss and plaintiff's motions for extension of time to file additional materials and to accept filings as timely filed, and denies all remaining motions as moot.

         STATEMENT OF THE CASE

         On June 21, 2017, plaintiff, a state inmate, filed this civil rights action pro se pursuant to 42 U.S.C. § 1983, alleging defendants denied him access to the courts in violation of the First Amendment to the United States Constitution. The court conducted a frivolity review of plaintiff's complaint on July 25, 2017, and allowed the matter to proceed. On July 26, 2017, the court issued summonses for defendants and forwarded them to the United States Marshal's Service for service. The United States Marshal's Service mailed the summonses and complaint by certified mail, return receipt requested, to each defendant at their places of employment. The summonses were returned executed on August 9, 2017, but the return receipts were not signed by the individual defendants.

         On September 25, 2017, defendants filed the instant motion to dismiss pursuant to Rules 12(b)(1), (2), (5), and (6), arguing that plaintiff failed to effect service of process on defendants, that plaintiff's claims are barred by sovereign and judicial immunity principles, that the complaint fails to state a claim on which relief can be granted, and that the court lacks jurisdiction over the claims pursuant to the Rooker-Feldman doctrine. Plaintiff filed multiple responses to the motion to dismiss. Plaintiff's first response to the motion to dismiss, filed on October 16, 2017, included a 25-page memorandum and over 100 pages of exhibits. Plaintiff filed his second response to the motion to dismiss on February 26, 2018. The court also construes plaintiff's “motion to proceed, ” filed on February 8, 2018, as a response to defendants' motion to dismiss.[2]

         Plaintiff filed his first set of interrogatories and requests for production of documents on October 16, 2017. Defendants responded by filing the instant motion to stay discovery pending resolution of their motion to dismiss.

         As noted, plaintiff has also filed the following pending motions: 1) first motion to appoint counsel (filed on October 16, 2017); 2) for summary judgment (filed on October 16, 2017); 3) for extension of time to file additional materials (filed on November 29, 2017); 4) for continuance (filed on January 2, 2018); 5) to accept filings as timely filed (filed on February 8, 2018); 6) second motion to appoint counsel (filed on February 8, 2018); 7) for a new trial (filed on February 8, 2018); and 8) to proceed (filed on February 8, 2018).

         STATEMENT OF FACTS

         On November 1, 2013, plaintiff was found guilty after a jury trial of assault with a deadly weapon with intent to kill inflicting serious injury and possession of a firearm by a convicted felon. See State v. Fullard, No. COA15-93, 2015 WL 4620523, at *1 ( N.C. Ct. App. Aug. 4, 2015).[3]Plaintiff, represented by appointed counsel, appealed his conviction. Id. The North Carolina Court of Appeals concluded there was no error in plaintiff's trial and affirmed his convictions. See id. at *5. Plaintiff, still represented by counsel, petitioned the North Carolina Supreme Court for discretionary review, but the petition was summarily denied. State v. Fullard, 783 S.E.2d 201 ( N.C. 2016).

         Thereafter, plaintiff, acting pro se, filed a number of petitions for further review of his convictions in the North Carolina Court of Appeals and the North Carolina Supreme Court. Plaintiff filed one such petition on April 17, 2017, in the North Carolina Supreme Court. (Compl. Ex.1 (DE 1-1) at 2). On June 12, 2017, Defendant Morgan, writing for the North Carolina Supreme Court, entered an order summarily dismissing the April 17, 2017, petition. (Id.) The supreme court did not issue a written opinion or otherwise explain its reasons for denying the petition. (Id.) The letter from the supreme court transmitting the order was signed by defendant Hackney, an assistant clerk of court for the North Carolina Supreme Court, and also identified defendant Boyd as the clerk of court. (Id.)

         On May 17, 2017, plaintiff, acting pro se, filed a petition for writ of habeas corpus in the North Carolina Court of Appeals. (Id. at 1). The court of appeals entered an order summarily denying the petition on May 19, 2017, and did not explain its re asons for the denial. (Id.) The letter transmitting the court of appeals' order was signed by defendant Horne, the clerk of court for the North Carolina Court of Appeals. (Id.)

         Plaintiff's complaint alleges that these rulings denied him due process and “access to the appeals process” because the courts did not issue written opinions explaining their decisions to deny his petitions. (See Compl. (DE 1) at 5). Plaintiff further alleges that defendants “prevented the address of tainted evidence and falsified evidence from misconduct and abuse of office powers related to false affidavits etc. to which review is owed.” (Id.) According to plaintiff, because the courts did not explain their reasons for denying his petitions, he is “not able to address a judicial opinion based upon the merits and facts of the case(s) to include the procedure and disclosure denied.” (See id. at 7). Plaintiff's complaint also contains additional conclusory and rambling allegations, such as the following:

clerk of court obstructions [sic] to judicial review for opinion of nonfrivolous arguments of falsified police filings, ineffective or denied court appearance presence - no counsel, ineffective appeal counsel. Deliberate indifference by deliberately denying my rights by the actions and acts rendered resulting in my received injury or and [sic] worsen them.

(Id. at 6). As relief, plaintiff requests: 1) “to be heard on all the cases shown along with all the issues of each case”; 2) “total dismissal and espongement [sic] of the records of all the case [sic]”; 3) “monetary damages of $350, 000.00 for each case listed and impeded violations of rights associated with each case”; 4) “punitive damage[s] award of one million . . . dollars or more as decided by jury”; and 5) “punitive award of the individual ...


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