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McDaniel v. Bailey

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

July 11, 2018

TIGRESS SYDNEY ACUTE McDANIEL, [1] Plaintiff,
v.
MICHELLE FEIMSTER BAILEY, et al., Defendants.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on initial review of the Complaint, (Doc. No. 1), Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, (Doc. No. 2), Plaintiff's “Renewed Motion for Recusal of Judge Conrad, Jr., ” (Doc. No. 3), a Motion to Dismiss filed by Defendants American Reliable Insurance Company and Assurant Specialty Property, (Doc. No. 4), and Plaintiff's Motion for Extension to Respond to Defendants' Premature Motion to Dismiss or Alternatively Defendants' Procedural Preservation for Such, (Doc. No. 6).

         I. BACKGROUND

         Pro se Plaintiff, a resident of Charlotte, has filed this action pursuant to 42 U.S.C. § 1983 and 1985, the Uniform Commercial Code (“UCC”), and North Carolina law. She has named as Defendants individuals and businesses who were in some way connected to her 2006 criminal prosecution and 2016 civil action in the North Carolina courts. She alleges that her bail bondsman in the 2006 criminal matter destroyed her automobile which had been taken as security on the criminal bond. She allegedly won a $5, 000 judgment against the bail bondsman for the damage in 2006 but was unable to collect it, and ultimately instituted a collection action in State court in 2016 which is pending on appeal. She alleges that the various Defendants conspired to prevent her from collecting the judgment in 2006, and are obstructing the 2016 collections matter. She seeks $10, 000 to reimburse her for the damage to her vehicle plus interest, punitive damages, a formal written apology, and all other forms of relief deemed appropriate by the court (Doc. No. 1 at 13).

         II. MOTION FOR RECUSAL

         Any federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). To warrant recusal, “[t]he nature of the judge's bias must be personal and not judicial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987).

         Plaintiff's motion for recusal is based on the Court's dismissal of a similar prior action as frivolous, which involved similar allegations and the same Defendants, case number 3:17-cv-448-RJC. She also sought the Court's recusal in that case, which was denied, and which the Fourth Circuit affirmed on appeal. See McDaniel v. Bailey, 710 Fed.Appx. 604 (4th Cir. 2018). She claims that the Court's bias is being repeated here.

         The Court's adverse judicial ruling in another case provides no basis for the Court's recusal. Accordingly, Plaintiff's Renewed Motion for Recusal will be denied.

         III. STANDARD OF REVIEW

         Because Plaintiff seeks to proceed in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). The Court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The statement of the claim does not require specific facts; instead, it “need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, the statement must assert more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.

         A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the pleadings is particularly appropriate where … there is a pro se complaint raising civil rights issues.”). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in the complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         IV. DISCUSSION

         (1) Unnamed Defendants

         The Federal Rules of Civil Procedure provide that, “[i]n the complaint the title of the action shall include the names of all the parties.” Fed.R.Civ.P. 10(a); see Myles v. United States, 416 F.3d 551 (7th Cir. 2005) (“to make someone a party the plaintiff must specify him in the caption and arrange for service of process.”). Although pro se litigants are entitled to have their pleadings liberally construed, Haines, 404 U.S. at 520, “[d]istrict judges have no obligation to act as counsel or paralegal to pro se litigants, ” Pliler v. Ford, 542 U.S. 225 (2004).

         The body of the Complaint contains allegations against individuals who are not named as defendants in the caption as required by Rule 10(a). See, e.g., (Doc. No. 1 at 304) (referring to P.Y. Pate, D.A. Whitley, George A. Wilhelm, and C.J. Cauble of the Rowan County Sheriff's Department). This failure renders Plaintiff's allegations against them nullities. See, e.g., Londeree v. Crutchfield Corp., 68 F.Supp.2d 718 (W.D. Va. Sept. 29, 1999) (granting motion to dismiss for individuals who were not named as defendants in the compliant but who were served).

         (2) John and Janes Does

         John Doe suits are permissible only against “real, but unidentified, defendants.” Schiff v. Kennedy, 691 F.2d 196, 197 (4th Cir. 1982). The designation of a John Doe defendant “is generally not favored in federal courts; it is appropriate only when the identity of the alleged defendant is not known at the time the complaint is filed and the plaintiff is likely to be able to identify the defendant after further discovery.” Njoku v. Unknown Special Unit Staff, 217 F.3d 840, 840 (4thCir. 2000). “[I]f it does not appear that the true identity of an unnamed party can be discovered through discovery or through intervention by the court, the court could dismiss the action without prejudice.” Schiff, 691 F.2d at 197-98 (because it appeared that John Doe was an actual person, it was error for the district court to conclude that, under appropriate circumstances, this type of case would not be permitted).

         Plaintiff names in the Complaint's caption “John and Jane Does 1-30, ” however, she makes no effort to identify these individuals and does not allege any facts against them that would state a plausible claim for relief under any legal theory. Fed.R.Civ.P. 8(a)(2) (short and plain statement is required); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations, unsupported by specific allegations of material fact are not sufficient). Therefore, Plaintiff's claims against John and Jane Does 1-30 are dismissed.

         (3)Judges

         “[J]udges are absolutely immune from suit for a deprivation of civil rights” for actions taken within their jurisdiction. King v. Myers, 973 F.2d 354, 356 (4th Cir. 1992). For immunity to apply, the act in question must be a “judicial act, ” that is, a “function [that is] normally performed by a judge, and [for which] the parties dealt with the judge in his or her judicial capacity.” Id. A judge will not be deprived of immunity “because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); see Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (two ...


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