United States District Court, W.D. North Carolina, Asheville Division
Reidinger, United States District Judge.
MATTER is before the Court on the Plaintiff's
Application to Proceed without Prepayment of Fees or Costs
[Doc. 2] and the Plaintiff's “Petition for
Enforcement of Olmstead Act, and Community Based Health
Care” [Doc. 3].
FACTUAL AND PROCEDURAL BACKGROUND
the fourth lawsuit brought by the Plaintiff Carl Womack
related to state court proceedings in which his mother, Ruth
Womack, was placed in protective custody with the Rutherford
County Department of Social Services and ultimately declared
to be incompetent. In the first action, the Plaintiff and
Ruth Womack asserted claims under 42 U.S.C. § 1983 and
other federal civil rights statutes against the Rutherford
County Clerk of Court and employees of the Rutherford County
Department of Social Services. [Civil No.
1:17-cv-00173-MR-DLH, Doc. 1]. The Court dismissed the
Plaintiff's claims asserted in that action on the grounds
of lack of subject matter jurisdiction, and the Fourth
Circuit Court of Appeals affirmed. [Id. at Docs. 3,
second action, the Plaintiff asserted claims under 42 U.S.C.
§ 1983 and 18 U.S.C. § 242 against the guardian of
his mother's estate, Merrimon Oxley. [Civil No.
1:18-cv-00266-MR-DLH, Doc. 1]. The Court dismissed the
Plaintiff's claims as frivolous. [Id. at Doc.
third action, the Plaintiff asserted claims against the
Cleveland County Clerk of Court, Carrie Howell; guardian
ad litem Karen Wright; and the Shelby Police
Department under 42 U.S.C. § 1983, 18 U.S.C. § 241,
and 42 U.S.C. § 1985. [Civil No. 1:18-cv-00352-MR-WCM,
Doc. 1]. The Court dismissed this action for failing to state
a claim and for lack of subject matter jurisdiction.
[Id. at Doc. 4]. The Court further warned the
Plaintiff that future frivolous filings would result in the
imposition of a pre-filing system. [Id.].
Plaintiff now returns to this Court, asserting claims under
42 U.S.C. § 1983 against the Assistant Clerk of Court
for the Superior Court for Buncombe County, Johanna
Finkelstein. Specifically, the Plaintiff alleges that the
Defendant violated his First Amendment right to petition the
Government for a redress of grievances and committed
obstruction of justice by failing to schedule a hearing on a
motion filed by the Plaintiff for the removal of his
mother's guardian. [Doc. 1 at 4, 6-7]. The Plaintiff
further alleges that the Defendant violated his
constitutional rights by denying a number of his motions
during proceedings related to the restoration of his
mother's competency. [Id. at 7]. Finally, while
conceding that such does not constitute a violation of his
civil rights, the Plaintiff alleges that the Defendant
conspired with his mother's guardian and others to commit
Medicaid fraud. [Id. at 4]. The Plaintiff alleges
that he was discriminated against on the basis of his class,
as the Defendant and others involved in the restoration
proceeding were lawyers. [Id. at 7-8].
addition to his Complaint, the Plaintiff also has filed a
Petition seeking release of his mother from the nursing home
where she resides as a well as an award of damages. [Doc. 3].
In this Petition, the Plaintiff notes that he has appealed
the state court rulings that have been made against him to
the North Carolina Court of Appeals. [Id. at 10].
STANDARD OF REVIEW
the Plaintiff, who is proceeding pro se, seeks to
proceed in forma pauperis, the Court must examine the
pleadings to determine whether this Court has jurisdiction
and to ensure that the action is not frivolous or malicious
and states a claim upon which relief can be granted.
See 28 U.S.C. § 1915(e)(2)(B)(i) and (ii);
see also Michau v. Charleston County, S.C., 434 F.3d
725, 728 (4th Cir. 2006) (noting that § 1915(e)
“governs IFP filings in addition to complaints filed by
prisoners”). A complaint is deemed frivolous
“where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). The Fourth Circuit has offered the following
guidance to a court tasked with determining whether a
complaint is frivolous under § 1915(e):
The district court need not look beyond the complaint's
allegations in making such a determination. It must, however,
hold the pro se complaint to less stringent
standards than pleadings drafted by attorneys and must read
the complaint liberally. Trial courts, however, are granted
broad discretion in determining whether a suit is frivolous
White v. White, 886 F.2d 721, 722-23 (4th Cir.
1989). While the complaint must be construed liberally, the
Court may “pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless, ” including such
claims that describe “fantastic or delusional
scenarios.” Neitzke, 490 U.S. at 327, 328.
of the Federal Rules of Civil Procedure provides that
“[a] pleading states a claim for relief must contain
(1) a short and plain statement of the grounds for the
court's jurisdiction ... [and] (2) a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(1), (2). A complaint
fails to state a claim where it offers merely “labels
and conclusions, ” “a formulaic recitation of the
elements of a cause of action, ” or “naked
assertion[s]” devoid of “further factual
enhancement.” See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal quotation marks omitted)).