United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
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.
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
MOTION FOR RECUSAL
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).
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.
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.
STANDARD OF REVIEW
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).
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.
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).
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.
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).
John and Janes Does
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).
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.
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 ...