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Lucas v. County of Dare

United States District Court, E.D. North Carolina, Northern Division

June 11, 2019

DESPINA N.A. LUCAS, dba ALL THINGS, Plaintiff,
v.
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

          James E. Gates United States Magistrate Judge

         This 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.

         ORDER ON IN FORMA PAUPERIS MOTION

         To 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.

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         Having 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.

         I. PLAINTIFF'S ALLEGATIONS AND PURPORTED CLAIMS

         In her 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.[1] 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, [2] 11 § 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.

         Plaintiff 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.[3] 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.

         Plaintiff 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.

         Read 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.

         II. APPLICABLE LEGAL STANDARDS

         A. Standards for Frivolity Review

         After 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.

         Under 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)).

         A court 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, ...


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