United States District Court, W.D. North Carolina, Asheville Division
ORDER OF DISMISSAL WITHOUT PREJUDICE
MAX O.
COGBURN JR. UNITED STATES DISTRICT JUDGE
THIS
MATTER is before the Court on plaintiff's
Application to Proceed Without Prepayment of Fees and
Affidavit (#2). The Court has carefully considered this
plaintiff's affidavit in conjunction with the Health
and Human Services Poverty Guidelines and determines
that this plaintiff is unable to pay the filing fee and costs
associated with service of process. See Health
and Human Services Poverty Guidelines, U.S. Dep't of
Health and Human Servs. (Jan. 11, 2019),
https://aspe.hhs.gov/poverty-guidelines. The Court
has accepted plaintiffs' assertions in the Application
that he has no funds with which to pay the filing fee and
will GRANT the in forma pauperis motion and allow plaintiff
to file this action without paying the required filing fee.
However, for the reasons explained below, process will not
issue as the proposed action appears the Court lacks subject
matter jurisdiction over these claims and that otherwise
cognizable claims have not been stated in the Complaint
against this defendant. 28 U.S.C. § 1915(e)(2)
FINDINGS
AND CONCLUSIONS
I.
Section 1915 Review
Pursuant
to 28 U.S.C. § 1915(e)(2), a district court must dismiss
a case at any time if it determines that the action is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from suit. Id. A finding
that a Complaint is frivolous does not, however, necessarily
mean that the Court finds that plaintiff's claims are not
sincere, only that the claims are non-justiciable in this
Court as alleged.
In
determining whether a claim has been stated, a pro se
plaintiff's allegations in a complaint are to be
liberally construed, and a court should not dismiss an action
for failure to state a claim “unless after accepting
all well-pleaded allegations in the plaintiff's complaint
as true and drawing all reasonable factual inferences from
those facts in the plaintiff's favor, it appears certain
that the plaintiff cannot prove any set of facts in support
of his claim entitling him to relief.” De'Lonta
v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Pro
se filings “however unskillfully pleaded, must be
liberally construed.” Noble v. Barnett, 24
F.3d 582, 587 n. 6 (4th Cir. 1994).
In this
case, the claims submitted by plaintiff suffers under two
Section 1915(e)(2) categories, as some are frivolous and some
fail to state cognizable claims. Moreover, this Court lacks
subject-matter jurisdiction over the central claims plaintiff
has asserted.
II.
Plaintiff's Contentions
The
Court has closely considered the substantive allegations of
the Complaint. Reading the allegations in a light most
favorable to plaintiff, the Court cannot find that
jurisdiction is properly laid in federal court.
Plaintiff's complaint was filed on January 14, 2019 by
Michael Kenneth Morris. Though plaintiff indicates that he is
appearing on behalf of others, the other names listed appear
to be versions of his own name; for example, Michael K.
Morris. From what can be discerned from plaintiff's
handwritten Complaint, it appears that Morris was represented
by attorney Richard Theokas, as retained counsel, in one or
more criminal cases in North Carolina State Court in
Cleveland County, which resulted in convictions. The filing
appears to be an attempt to make a negligence/malpractice
claim of sorts against plaintiff's former criminal
defense lawyer, rather than a claim filed pursuant to 28
U.S.C § 2254. There is nothing to indicate that this was
intended to be a habeas action as plaintiff neither
alleges that he is imprisoned nor does he state that he
remains under any post-conviction restraints; instead, he
seeks relief in the form of monetary damages for alleged
professional malpractice by his counsel.
In
addition, plaintiff appears to be attempting to bring a
federal criminal charge against his former counsel by
alleging a violation of 18 U.S.C. § 1346 for devising a
“scheme or artifice to defraud” plaintiff,
stating: “Defendants in a scheme and act of artifice,
knowing or should have known the law failed to timely and
properly demand and serve notices for trial by jury. Did
these failures constitute an intangible right of honest
service of legal representation?” See Compl.
at 2. Plaintiff also cites to several Federal Rules of Civil
Procedure. See Compl. at 1-3 (citing Rules 1, 2, 3,
7(a), 8(a), 9(a), 12(a)(1)(b), 18(a), 38(a)(b)(c), and
39(a)). While citing the Federal Rules of Civil Procedure,
plaintiff quotes various excerpts from the North Carolina
Rules of Civil Procedure without further explanation or
allegations. Finally, plaintiff makes a fleeting reference
the United States Constitution in connection with his breach
of contract claim. But plaintiff provides no facts about this
purported contract, breach, or injury.
Finally,
it is readily apparent from the face of the pleading that
both the plaintiff and the defendant are residents of the
State of North Carolina.
III.
Discussion
Pursuant
to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss an
in forma pauperis complaint if “the action . .
. (i) is frivolous or malicious” or if the action
“(ii) fails to state a claim upon which relief may be
granted.” A complaint is frivolous “where it
lacks an arguable basis in either law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Frivolousness “embraces not only the inarguable legal
conclusion, but also the fanciful factual allegation.”
Id. Section 1915(e) gives judges “the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless, ” for instance where
the claim describes “fantastic or delusional
scenarios.” Id. at 327-28.
In
conducting the frivolousness analysis, the Court of Appeals
for the Fourth Circuit instructs that courts should
“conduct a flexible analysis, in light of the totality
of the circumstances, of all factors bearing upon the
frivolity of a claim.” Nagy v. Federal Med. ...