United States District Court, E.D. North Carolina, Eastern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiffs application to
proceed in forma pauperis [DE-1] and for frivolity
review of the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). Plaintiff has demonstrated appropriate
evidence of inability to pay the required court costs, and
the application to proceed in forma pauperis is
allowed. However, because Defendants are immune from suit, it
is recommended that the complaint be dismissed.
STANDARD OF REVIEW
to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss
the complaint if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks money
damages from a defendant immune from such recovery. 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted
predecessor statute 28 U.S.C. § 1915(d) "to prevent
abuse of the judicial system by parties who bear none of the
ordinary financial disincentives to filing meritless
claims"). A case is frivolous if it lacks an arguable
basis in either law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); McLean v. United
States, 566 F'.3d 391, 399 (4th Cir. 2009)
("Examples of frivolous claims include those whose
factual allegations are 'so nutty,'
'delusional,' or 'wholly fanciful' as to be
simply 'unbelievable.'"). A claim lacks an
arguable basis in law when it is "based on an
indisputably meritless legal theory." Neitzke,
490 U.S. at 327. A claim lacks an arguable basis in fact when
it describes "fantastic or delusional scenarios."
Id. at 327-28.
determining whether a complaint is frivolous, "a court
is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the
truth of the Plaintiffs allegations." Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Rather, the court
may' find a complaint factually frivolous "when the
facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially
noticeable facts available to contradict them."
Id. "The word 'frivolous' is inherently
elastic and not susceptible to categorical definition The
term's capaciousness directs lower courts to conduct a
flexible analysis, in light of the totality of the
circumstances, of all factors bearing upon the frivolity of a
claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d
252, 256-57 (4th Cir. 2004) (some internal quotation marks
omitted). In making its frivolity determination, the court
may "apply common sense." Nasim v. Warden., Md.
House of Corr., 64 F.3d 951, 954 (4th Cir. 1995).
order to state a claim on which relief may be granted,
"a complaint must 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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .'" Twombly,
550 U.S. at 555. While a complaint need not contain detailed
factual allegations, the plaintiff must allege more than
labels and conclusions. Id. In the present case,
Plaintiff is proceeding pro se and pleadings drafted
by a pro se litigant are held to a less stringent
standard than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). The court is charged
with liberally construing a pleading filed by a pro
se litigant to allow for the development of a
potentially meritorious claim. See id.; Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However,
the principles requiring generous construction of pro
se complaints are not without limits; the district
courts are not required "to conjure up questions never
squarely presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
alleges his due process rights under the United States
Constitution were violated when Wake County Superior Court
Judge R. Allen Baddour erroneously dismissed Plaintiff's
case against the North Carolina Department of Revenue and
failed to rule on Plaintiff's motion for reconsideration
filed December 19, 2017, effectively denying Plaintiff his
right to appeal the dismissal. Corripl. [DE-1-1] at 4; Mem.
[1-2] at 4. Plaintiff also alleges he filed a notice of
appeal with the Clerk of the Superior Court of Wake County on
October 15, 2018, but received no -response. Id.
Plaintiff seeks $160 million in damages from the State of
North Carolina and Judge Baddour. Compl. [DE-1-1] at 4-5.
acts of which Plaintiff complains-erroneously dismissing
Plaintiff's case and not timely ruling on a motion-are
"judicial'acts" for which judges are entitled
to absolute immunity. See Dove v. Pate, No.
5:15-CT-3132-BO, 2016 WL 7655777, at *2 (E.D. N.C. Jan. 12,
2016), aff'd, 651 Fed.Appx. 188 (4th Cir. 2016).
Much of Plaintiff's memorandum addresses the merits of
the underlying state court case, presumably in order to
demonstrate Judge Baddour erroneously dismissed the case.
Mem. [DE-1-2] at 5-19. However, "judges of courts of
superior or general jurisdiction are not liable to civil
actions for their judicial acts, even when such acts are in
excess of their jurisdiction, and are alleged to have been
done maliciously or corruptly." Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978); see also Dean
v. Shiver, 547 F.2d 227, 231 (4th Cir. 1976) (concluding
a judge may not be attacked for exercising judicial authority
even if done improperly); Green v. North Carolina,
No. 4:08-CV-135-H, 2010 WL 3743767, at *3 (E.D. N.C. Sept.
21, 2010) (concluding claims against a North Carolina
Superior Court Judge and/or clerk of court within their
capacities as judicial officers are barred by doctrine of
judicial immunity). "Judges are subject to civil
liability for judicial acts only where they act in 'clear
absence of all jurisdiction.'" Fullard v.
Home, No. 5:17-CT-3159-FL, 2018 WL 3302732, at *3 (E.D.
N.C. July 5, 2018) (quoting Stump, 435 U.S. at 357),
aff'd, No. 18-6896, 2019 WL 117113 (4th Cir.
Jan. 7, 2019). Plaintiff has not alleged that Judge Baddour
acted without jurisdiction. Accordingly, judicial immunity
bars Plaintiffs claims against Judge Baddour.
also alleges he filed a notice of appeal with the Clerk of
the Superior Court of Wake County on October 15, 2018, but
received no response. Mem. [1-2] at 4. The Superior Court of
Wake County and the State of North Carolina are protected by
sovereign immunity under the Eleventh Amendment. See
Dillon v. Mills, No. 4:16-CV-3-FL, 2016 WL 3102015, at
*2 (E.D. N.C. June 2, 2016) (dismissing claims against the
North Carolina Judicial System because state agencies are
immune from suits by private citizens in federal court absent
waiver of immunity by the state); Philips v. N.C.
State, No. 5:15-CV-95-F, 2015 WL 9462095, at *6 (E.D.
N.C. Dec. 28, 2015) (dismissing claims against state
defendants, including the North Carolina Court System and the
State of North Carolina, as barred by sovereign immunity). As
the Supreme Court has stated, "[t]he ultimate guarantee
of the Eleventh Amendment is that nonconsenting States may
not be sued by private individuals in federal court."
Bd. of Trs. of the Univ. of Ala. v. Garrett, 531
U.S. 356, 363 (2001). This immunity from suit applies not
only to the State itself, but also to claims against state
agencies and state officials acting in an official capacity.
See Myers v. North Carolina, No. 5:12-CV-714-D, 2013
WL 4456848, at *3 (E.D. N.C. Aug. 16, 2013) ("State
agencies and state officials acting in their official
capacities also are protected against a claim for damages
because a suit against a state office is no different from a
suit against the state itself.") (citations omitted).
However, sovereign immunity may be waived or abrogated where
the state agency has waived its immunity or where Congress
has overridden that immunity. Philips, 2015 WL
9462095, at *6 (citing Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66 (1989)). Plaintiff has not
alleged any facts from which the court could find that
sovereign immunity has been waived or abrogated. Accordingly,
it is recommended that the complaint be dismissed because all
Defendants are immune from suit.
reasons stated herein, Plaintiffs application to proceed
in forma pauperis is ALLOWED, and it is RECOMMENDED
that the complaint be dismissed.
DIRECTED that a copy of this Memorandum and Recommendation be
served on Plaintiff. You shall have until January 31,
2019, to file written objections to the Memorandum
and Recommendation. The presiding district judge must conduct
his or her own review (that is, make a de novo determination)
of those portions of the Memorandum and Recommendation to
which objection is properly made and may accept, reject, or
modify the determinations in the Memorandum and
Recommendation; receive further evidence; or return the
matter to the magistrate judge with instructions. See, e.g.,
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ.
R. 1.1 (permitting modification of deadlines specified in
local rules), 72.4(b), E.D.N.C.
do not file written objections to the Memorandum and
Recommendation by the foregoing deadline, you will be giving
up the right to review of the Memorandum and Recommendation
by the presiding district judge as described above, and the
presiding district judge may enter an order or judgment based
on the Memorandum and Recommendation without such review. In
addition, your failure to file written objections by the
foregoing deadline will bar you from appealing to the Court
of Appeals from an order or judgment ...