United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on the Memorandum and
Recommendation (“M&R”) of United States
Magistrate Judge Robert B. Jones, Jr., regarding
plaintiff's motion to proceed in forma pauperis and
frivolity review of plaintiff's complaint. The magistrate
judge recommends that this court allow plaintiff to proceed
in forma pauperis but dismiss plaintiff's claims as
frivolous in that plaintiff's claims are barred by
judicial immunity and sovereign immunity. Plaintiff filed
timely objection to the M&R, and this matter is ripe for
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. 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.
court is required to dismiss an in forma pauperis action that
is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2). A case is “frivolous” if it lacks an
arguable basis in either law or fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989). The court construes
a pro se pleading liberally in engaging in a frivolity
determination, but must not accept a pleading that fails to
allege with specificity facts that support the
plaintiff's claim. See White v. White, 886 F.2d
721, 724 (4th Cir.1989).
the court agrees with the magistrate judge that
plaintiff's claims against Judge Baddour are barred by
judicial immunity. See, e.g., Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978)
(“'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”); Fullard v. Horne, No.
5:17-CT-3159-FL, 2018 WL 3302732, at *3 (E.D. N.C. July 5,
2018) (“Judges are subject to civil liability for
judicial acts only where they act in ‘clear absence of
all jurisdiction.'”). Additionally, claims against
the clerk of court and the state of North Carolina are barred
by sovereign immunity. See, e.g., Bd. of Trs. of
the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)
(“[t]he ultimate guarantee of the Eleventh Amendment is
that nonconsenting States may not be sued by private
individuals in federal court”); 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).
plaintiff argues immunity has been waived by Congress, cases
cited by plaintiff are inapposite. See O'Conner, v.
Donaldson, 422 U.S. 563, 576 (1975) (“a State
cannot constitutionally confine without more a nondangerous
individual who is capable of surviving safely in freedom by
himself or with the help of willing and responsible family
members or friends”); United States v.
Georgia, 546 U.S. 151, 158-59 (2006) (holding Title II
of the Americans With Disabilities Act (ADA) validly
abrogates state sovereign immunity insofar as it creates a
private cause of action for damages against the States for
conduct that actually violates the Fourteenth Amendment);
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)
(holding the Eleventh Amendment and the principle of state
sovereignty which it embodies are necessarily limited by the
enforcement provisions of the Fourteenth Amendment and that,
accordingly, back pay and attorney fee awards under the Civil
Rights Act, whereby Congress exercised its powers under such
enforcement provision, were not precluded by the Eleventh
Amendment). That there are examples where Congress has
abrogated states' Eleventh Amendment immunity in some
instances pursuant to certain statutes does not mean that
such abrogation occurred here. See Bd. of Trustees of
Univ. of Alabama, 531 U.S. at 363 (“We have
recognized, however, that Congress may abrogate the
States' Eleventh Amendment immunity when it . . .
unequivocally intends to do so . . . .”).
court additionally rejects plaintiffs argument that the State
of North Carolina has waived immunity in this action by
receipt of federal benefits from, for example, Medicare.
See Edelman v. Jordan, 415 U.S. 651, 673 (1974)
(“The mere fact that a State participates in a program
through which the Federal Government provides assistance for
the operation by the State of a system of public aid is not
sufficient to establish consent on the part of the State to
be sued in the federal courts.”).
foregoing reasons, the court ADOPTS the M&R of the
magistrate judge. Plaintiff s claims are DISMISSED pursuant
to 28 U.S.C. § ...