United States District Court, E.D. North Carolina, Northern Division
DESPINA N.A. LUCAS, dba ALL THINGS, Plaintiff,
COUNTY OF DARE, NORTH CAROLINA; COUNTY OF PAMLICO, NORTH CAROLINA; COURT DISTRICT 3B, NORTH CAROLINA; CITY OF NAGS HEAD, NORTH CAROLINA; CITY OF KILL DEVIL HILLS, NORTH CAROLINA; CITY OF KITTY HAWK, NORTH CAROLINA; STATE OF NORTH CAROLINA; CITY COUNTY OF NEWPORT NEWS, VIRGINIA; CITY COUNTY OF HAMPTON, VIRGINIA; COMMONWEALTH OF VIRGINIA; CHRISTOPHER NEWPORT UNIVERSITY; and UNITED STATES OF AMERICA, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
pro se case is before the court on the motion to proceed
in forma pauperis under 28 U.S.C. § 1915(a)(1)
(D.E. 1) by plaintiff and for a frivolity review pursuant to
28 U.S.C. § 1915(e)(2)(B). These matters were referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), respectively. See D.E.
dated 2 May 2019.
ON IN FORMA PAUPERIS MOTION
qualify for in forma pauperis status, a person must
show that he "cannot because of his poverty pay or give
security for the costs . . . and still be able to provide
himself and dependents with the necessities of life."
See Adkins v. E.I. DuPont de Nemours & Co., 335
U.S. 331, 339 (1948) (internal quotation marks omitted). The
court finds that plaintiff has adequately demonstrated her
inability to prepay the required court costs. Her motion to
proceed in forma pauperis is therefore ALLOWED.
AND RECOMMENDATION ON FRIVOLITY REVIEW
found that plaintiff is financially eligible to proceed
in forma pauperis, the court must now undertake a
frivolity review of this case, pursuant to 28 U.S.C. §
1915(e)(2)(B). See Denton v. Hernandez, 504 U.S. 25,
27 (1992) (standard for frivolousness). Based on this review
and for the reasons stated below, it will be recommended that
plaintiffs purported claims be dismissed.
PLAINTIFF'S ALLEGATIONS AND PURPORTED CLAIMS
proposed complaint, plaintiff names as defendants the United
States, the Commonwealth of Virginia, the State of North
Carolina, a number of cities and counties in Virginia and
North Carolina, a North Carolina state court, and a
university in Virginia, Christopher Newport University.
Compl. (D.E. 1-1) 2-6 § I.B. Plaintiff alleges that she
was wrongfully cited multiple times and convicted three or
four times for failure to have her old and "ratty"
RV (or camper) inspected in Virginia based on the lack of a
decal on the RV showing inspection. Id. at 8, 10,
§ III. A. The convictions were allegedly wrongful, in
part, because plaintiff had, in fact, had the RV inspected
and the RV lacked a decal showing inspection only because
Virginia did not issue such decals for RVs. Id. at 8
§ III.A. The convictions were also allegedly improper
because plaintiff was not offered a public defender despite
qualifying for one and she was denied continuances to enable
her to obtain proof of the inspections. Id. at 10
§ III. A.; 7, 9 § III.B. In two instances,
plaintiff was allegedly apprehended by officers who lacked
jurisdiction to do so. Id. at 10 § III.A.
also complains that she was wrongfully directed not to return
to or appear in any courthouse in the United States for
parking her car in front of the Hampton County Courthouse
with the RV attached. Id. at 10-11 § III.A. She
alleges that this directive has resulted in dismissal of
cases brought by her in North Carolina Court District 3B
("North Carolina Judicial District 3B") and Dare
County. Id. at 11 ¶ III. A.
further claims that she has been wrongfully cited 15 times,
and convicted so far on 2 such citations, for driving without
a North Carolina driver's license when, in fact, she is
permitted to drive by the National Driver Registry.
Id. at 12 § III.A. She was allegedly convicted
on one such charge based on perjured testimony. Id.
In this or the other case resulting in conviction, she was
allegedly jailed and forced to retract her request for an
appeal and pay the $230 fine to obtain her release from jail.
Id. Plaintiff claims she was denied defense counsel
in both cases in which she was convicted. Id.
liberally, as they must be, plaintiffs purported claims arise
under 42 U.S.C. § 1983 ("§ 1983"), though
she does not cite that statute or identify any basis for the
court's jurisdiction in her proposed complaint, which is
on a preprinted form for negligence cases. Her civil cover
sheet indicates that she is alleging violations of her Fifth
Amendment, Sixth Amendment, and Fourteenth Amendment rights
resulting from wrongful traffic citations, wrongful
convictions, negligence, and harassment. Civ. Cover Sheet
(D.E. 1-4) § VI. Plaintiff seeks $50 million in damages
for "mental anguish, financial harm, background damage,
harassment, Online business retailer reputation damage,
[being] stolen from, credibility as a Private Investigator
and Geological Engineer [being] damaged and [being] made a
fool of." Id. at 12 § III.A; see also
Id. at 3, 7 § II.C.
APPLICABLE LEGAL STANDARDS
Standards for Frivolity Review
allowing a party to proceed in forma pauperis, as
here, the court must conduct a frivolity review of the case
pursuant to 28 U.S.C. § 1915(e)(2)(B). The court must
determine whether the action is frivolous or malicious, fails
to state a claim upon which relief can be granted, or seeks
monetary relief from an immune defendant, and is thereby
subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see
Denton, 504 U.S. at 27 (standard for frivolousness).
Although in evaluating frivolity a pro se plaintiffs
pleadings are held to "less stringent standards"
than those drafted by attorneys, White v. White, 886
F.2d 721, 722-23 (4th Cir. 1989), the court is not required
to accept a pro se plaintiffs contentions as true,
Denton, 504 U.S. at 32. Instead, the court is
permitted to "pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless." Neitzke, 490
U.S. at 327. Such baseless claims include those that describe
"fantastic or delusional scenarios." Id.
at 328. Provided that the plaintiffs claims are not clearly
baseless, the court must weigh the plaintiffs factual
allegations in his favor in its frivolity analysis.
Denton, 504 U.S. at 32. The court must read the
complaint carefully to determine if the plaintiff has alleged
specific facts sufficient to support his claims.
White, 886 F.2d at 724.
Rule 8 of the Federal Rules of Civil Procedure, a pleading
that states a claim for relief must contain "a short and
plain statement of the grounds for the court's
jurisdiction ... [and] a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual
allegations in the complaint must create more than a mere
possibility of misconduct. Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Likewise, a complaint is insufficient if 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." Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks omitted)).
may consider subject matter jurisdiction as part of the
frivolity review. See Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999) (holding that "[determining the
question of subject matter jurisdiction at the outset of the
litigation is often the most efficient procedure");
Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL
397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of
diversity jurisdiction during frivolity review as a basis for
dismissal). "Federal courts are courts of limited
jurisdiction and are empowered to act only in those specific
situations authorized by Congress." Bowman v.
White,388 F.2d 756, 760 (4th Cir. 1968). The
presumption is that a federal court lacks jurisdiction in a
particular case unless it is demonstrated that jurisdiction
exists. Lehigh Min. & Mfg. Co. v. Kelly, 160
U.S. 327, 336 (1895). The burden of establishing subject
matter jurisdiction rests on the party invoking jurisdiction,
here plaintiff. Adams v. Bain,697 F.2d 1213, 1219
(4th Cir. 1982) ("The burden of proving subject matter
jurisdiction ... is on the plaintiff, ...