United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
matter comes before the court on frivolity review of
plaintiff's pro se complaint, pursuant to 28
U.S.C. § 1915(e)(2)(B). Pursuant to 28 U.S.C. §
636(b)(1)(B) and Federal Rule of Civil Procedure 72(b),
United States Magistrate Judge Robert T. Numbers, II, entered
a memorandum and recommendation (“M&R”),
wherein it is recommended that the court dismiss in part
plaintiff's claims. (DE 4). Plaintiff filed objections to
the M&R (DE 6). In this posture, the issues raised are
ripe for ruling. For the following reasons, the court adopts
in part and rejects in part the M&R as set forth herein,
and dismisses plaintiff's federal claims with prejudice
and declines to exercise jurisdiction on plaintiff's
state law claims.
commenced this action with a motion for leave to proceed in
forma pauperis on December 28, 2018, accompanied by proposed
complaint, asserting state law claims based upon legal
malpractice against an attorney and law firm that represented
plaintiff in state court proceedings related to
plaintiff's employment as a prison security guard with
the North Carolina Department of Public Safety
(NCDPS). Plaintiff also asserts claims under the
United States Constitution and the federal Racketeer
Influenced and Corrupt Organizations Act
(“RICO”). Plaintiff seeks return by defendants of
fees paid by the “Southern States Benevolent
Association” on behalf of plaintiff in the underlying
litigation, as well as $25, 006, 099.00 in compensatory
damages and $75, 000, 000.00 in punitive damages. (Compl. (DE
5) at 21).
M&R, the magistrate judge recommends that the district
court should dismiss “most of” plaintiff's
complaint for four reasons: “First, many of
[plaintiff's] state law claims are barred by the statute
of limitations. Second, a portion of [plaintiff's]
common-law negligence claim related to his whistleblower
lawsuit is not yet ripe. Third, [plaintiff's] civil
conspiracy claim is barred by the intercorporate conspiracy
doctrine. And [fourth], [plaintiff's] constitutional
claims and his RICO claim fail to state claims upon which
relief may be granted.” (M&R (DE 4) at 1).
filed objections to the M&R, totaling 62 pages of
materials, including photographs and excerpts of the record
in underlying proceedings involving plaintiff, which are
described in further detail in the statement of facts herein.
court incorporates herein below the summary of factual
allegations set forth in the M&R, for ease of reference:
Brown worked for [NCDPS] in a correctional facility in 2012
and 2013. Compl. passim, D.E. 1-1. In early April 2012, an
inmate told Brown that several officers assaulted him.
Id. at 2:47. Brown claims that shortly after he
reported the inmate's assault, his supervisors began
investigating him for hiring an attorney for the allegedly
assaulted inmate and failing to immediately report the
possible use of excessive force. Id. at 2:66-72.
Brown also claims that his employer retaliated against him
for reporting the incident by making false accusations
against him, denying him promotions, and giving him a
negative employment reference. Id. at 2:47-85;
3:104-4:107. Finally, Brown alleges in his Complaint that his
supervisors investigated him based on false allegations that
he was sleeping on the job in July 2013. Id. at
3:86-94. At some point, Brown lost his job with NCDPS.
[Defendant] Philbeck filed a whistleblower lawsuit on
Brown's behalf against NCDPS in December 2013.
Id. at 6:185-87. But in July 2015, shortly before a
hearing on NCDPS's motion to dismiss for lack of subject
matter jurisdiction, Philbeck filed a notice voluntarily
dismissing Brown's case. Id. at 6:192-194.
According to Brown, Philbeck improperly filed the action in
Superior Court when he should have filed it in the North
Carolina Office of Administrative Hearings [NCOAH].
Id. at 192-97.
After trying to consult with Philbeck by email and receiving
no response, Brown filed a pro se petition for a contested
case hearing before NCOAH challenging his termination from
NCDPS. Id. at 7:242-244; 14:469-472. Philbeck also
filed a petition for contested case hearing on Brown's
behalf. Id. at 244-246. NCOAH consolidated the two
cases and eventually held a trial, which Brown alleges
Philbeck did not know about until a couple of hours before it
was scheduled to begin. Id. at 7:245-246;
14:457-464. Brown claims that during the trial, Philbeck did
no more than briefly cross-examine the state's witnesses,
refused to subpoena any of the witnesses Brown suggested, and
would not let Brown testify about what he thought were
dispositive issues. Id. at 7:246-8:253. The
Complaint also alleges that Philbeck missed the deadline to
file a proposed decision with NCOAH. Id. at
The Administrative Law Judge (“ALJ”) presiding
over the case found that Brown had presented no evidence in
his favor and ruled for NCDPS. Id. at 9:287-292. The
ALJ's decision explained that Brown could seek review of
the decision from the North Carolina Court of Appeals.
Id. at 9:293-295. Even so, Philbeck filed a petition
for judicial review in Superior Court instead of the North
Carolina Court of Appeals. Id. at 9:293-300.
Brown asserts that is likely that the petition has been
dismissed. Id. at 9:291-292. But the court has
reviewed the file maintained by the Wake County Clerk of
Court and determined that this action is still pending.
See Brown v. N.C. Dep't of Pub. Safety, No.
15-CV-005404 ( N.C. Sup. Ct. Wake Cty. filed Apr. 23, 2015).
Filed with the petition for judicial review is the Final
Decision of the ALJ, which was issued on March 24, 2015.
After Brown lost his job at the prison, he filed for
unemployment benefits. Id. at 10:323. NCDPS
countered that he was terminated for misconduct (sleeping on
the job) and was thus not entitled to unemployment benefits.
Id. at 10:323-325. Ultimately, NCDPS prevailed and
Philbeck filed a petition for judicial review on Brown's
behalf in Superior Court in Wake County. Id. at
10:348-349. NCDPS moved to dismiss the petition for improper
venue. Id. at 11:350-352. The Superior Court agreed
with NCDPS and dismissed the petition on September 14, 2015.
Id. at 11:353-355. Brown claims that Philbeck should
have filed the petition for judicial review in Pitt County,
where Brown lived, instead of Wake County. Id. at
10:347-11:355. Philbeck did not appeal the dismissal order.
Id. at 11:359-360.
In December 2015, Philbeck called to check in with Brown.
Id. at 19:629-630. Brown alleges that this phone
call was a ploy by Philbeck to discover his current employer
so that Dennis Daniels, Brown's former boss at the