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Morris v. Theokas

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

February 4, 2019

MICHAEL KENNETH MORRIS, Plaintiffs,
v.
RICHARD THEOKAS, Defendants.

          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. ...


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