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Brown v. Philbeck

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

July 1, 2019

LENTON CREDELLE BROWN, Plaintiff,
v.
HEDYT PHYLBECK; and BAILEY AND DIXON, LLP, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         Plaintiff 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).[1] 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).

         In the 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).

         Plaintiff 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.

         STATEMENT OF FACTS

         The 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.[2] 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. Id. passim.
[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 9:283-287.
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. Id.
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 prison, ...

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