United States District Court, E.D. North Carolina, Eastern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
B. JONES, JR., UNITED STATES MAGISTRATE JUDGE
matter is before the court on Plaintiff's application to
proceed in forma pauperis [DE-1, -5] and for
frivolity review of the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B). Plaintiff has demonstrated appropriate
evidence of inability to pay the required court costs, and
the application to proceed in forma pauperis is
allowed. However, because Defendant is immune from suit, it
is recommended that the complaint be dismissed.
STANDARD OF REVIEW
to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss
the complaint if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks money
damages from a defendant immune from such recovery. 28 U.S.C.
§ 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40
F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted
predecessor statute 28 U.S.C. § 1915(d) "to prevent
abuse of the judicial system by parties who bear none of the
ordinary financial disincentives to filing meritless
claims"). A case is frivolous if it lacks an arguable
basis in either law or fact. See Neitzke v.
Williams, 490 U.S. 319, 325 (1989); McLean v. United
States, 566 F.3d 391, 399 (4th Cir. 2009)
("Examples of frivolous claims include those whose
factual allegations are 'so nutty,'
'delusional,' or 'wholly fanciful' as to be
simply 'unbelievable.'"). A claim lacks an
arguable basis in law when it is "based on an
indisputably meritless legal theory." Neitzke,
490 U.S. at 327. A claim lacks an arguable basis in fact when
it describes "fantastic or delusional scenarios."
Id. at 327-28.
determining whether a complaint is frivolous, "a court
is not bound, as it usually is when making a determination
based solely on the pleadings, to accept without question the
truth of the Plaintiffs allegations." Denton v.
Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may
find a complaint factually frivolous "when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them." Id.
"The word 'frivolous' is inherently elastic and
not susceptible to categorical definition....The term's
capaciousness directs lower courts to conduct a flexible
analysis, in light of the totality of the circumstances, of
all factors bearing upon the frivolity of a claim."
Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57
(4th Cir. 2004) (some internal quotation marks omitted). In
making its frivolity determination, the court may "apply
common sense." Nasim v. Warden., Md. House of
Corr, 64 F.3d 951, 954 (4th Cir. 1995).
order to state a claim on which relief may be granted,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell All. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Factual
allegations must be enough to raise a right to relief above
the speculative level . . . .'" Twombly,
550 U.S. at 555. While a complaint need not contain detailed
factual allegations, the plaintiff must allege more than
labels and conclusions. Id. In the present case,
Plaintiff is proceeding pro se and pleadings drafted
by a pro se litigant are held to a less stringent
standard than those drafted by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). The court is charged
with liberally construing a pleading filed by a pro
se litigant to allow for the development of a
potentially meritorious claim. See id; Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Noble v.
Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However,
the principles requiring generous construction of pro
se complaints are not without limits; the district
courts are not required "to conjure up questions never
squarely presented to them." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
alleges his due process rights under the North Carolina and
United States Constitutions and North Carolina General
Statutes §§ 1-277(b) and 14-230 were violated when
Jennifer Knox, the Clerk of Court, Superior Court of Wake
County, did not acknowledge his notice of appeal filed on
October 18, 2018. Compl. [DE-1-1] at 2-3. Brown contends that
Knox, "[in her individual capacity] under the color of
her authority, failed to exercise the duties and
responsibilities of the office, when [she] did not
acknowledge the Notice of Appeal" and that her conduct
was in bad faith and may rise to the level of "wanton,
malicious, or reckless" due to the length of delay in
handling his Notice of Appeal. Id. at 2-3, 5. Brown
seeks $160 million in damages, including punitive damages, to
deter such conduct in the future. Id. at 7-8.
attempted to bring a claim against Knox for the same conduct
in a prior case in this court, Brown v. Superior Court of
Wake Cty., Court Admin. ("Brown 7"), No.
4:18-CV-199-FL (E.D.N.C). In Brown I, he alleged
that his due process rights under the United States
Constitution were violated when Wake County Superior Court
Judge R. Allen Baddour erroneously dismissed Brown's case
against the North Carolina Department of Revenue and failed
to rule on Brown's motion for reconsideration,
effectively denying Brown his right to appeal the dismissal.
Brown I, 2019 WL 1495259, at *1 (E.D. N.C. Apr. 4,
2019). Brown also alleged he filed a notice of appeal of his
case with the Clerk of the Superior Court of Wake County but
received no response. Id. The court dismissed
Brown's claims initially, denied leave to proceed against
the Clerk of Court on reconsideration because she was
entitled to derivative absolute judicial immunity, and denied
subsequent motions for reconsideration. See Id.
(citing Hamilton v. Murray, 648 Fed.Appx. 344, 345
(4th Cir. 2016) (citing McCray v. Maryland, 456 F.2d
1, 5 (4th Cir. 1972) ("court clerks enjoy derivative
absolute judicial immunity when they act in obedience to a
judicial order or under the court's direction")).
now argues that this case is related to but different than
Brown I and that Knox as Clerk is not entitled to
qualified immunity or judicial immunity. Compl. [DE-1-1] at
3-4. Specifically, Brown contends Knox is not entitled to
immunity because she was not carrying out an order of the
court when she failed to acknowledge his appeal and her
actions were ministerial rather than judicial in nature.
Id. [DE-1-1] at 6-7. Brown made these arguments in
Brown I, and the court rejected them. See Brown
I, Mot. for Recon. [DE-12] (seeking to proceed against
the Clerk of Superior Court of Wake County and arguing that
the Clerk was performing a ministerial function not a
judicial act in mishandling his appeal). The court ruled that
"plaintiff has not alleged the actions complained of
were not taken in the discharge of the lawful duties of the
clerk, where plaintiff has alleged that Judge Baddour
effectively denied his right to appeal and that the clerk did
not respond, thereafter, to plaintiffs notice of
appeal." Brown I, 2019 WL 1495259, at *1
(citing McCray, 456 F.2d at 4 ("In Brown v.
Dunne and Rhodes v. Meyer (supra note 1), cited
by the District Court, the defendant was held not liable
because the actions complained of were taken in the discharge
of his lawful duties as court clerk-not in neglect or
violation of those duties.")). Brown sought
reconsideration of the court's ruling, which was denied,
and that decision was affirmed on appeal. See Brown
I, Mot. for Recon. [DE-14], Order [DE-15]; Brown v.
Superior Court of Wake Cty., Court Admin., No. 19-1500,
2019 WL 3239670 (4th Cir. July 18, 2019) (per curiam)
(affirming the district court's order denying his fourth
motion for reconsideration of the court's prior order
dismissing his complaint). The court, consistent with its
prior rulings, should apply derivative absolute judicial
immunity and dismiss Brown's claim against Knox.
the fact that Brown asserts his claim against Knox in her
individual capacity does not preclude application of
derivative absolute judicial immunity. See Dalenko v.
Stephens, 917 F.Supp.2d 535, 552 (E.D. N.C. 2013)
(dismissing individual capacity claim against Assistant Clerk
of Court for Wake County on the basis of quasi-judicial
immunity); Hedgepeth v. Wilkes C, No.
3:12-CV-262-RJC, 2012 WL 2092853, at *6 (W.D. N.C. June 11,
2012) (dismissing based on quasi-judicial immunity the
individual and official capacity claims against a Clerk of
Superior Court for alleged failure to ensure affidavit was
completed and filed in the public record in violation of her
duties under state law), aff'd sub nom. Hedgepeth v.
Wilkes, 489 Fed.Appx. 728 (4th Cir. 2012).
Brown argues, citing Garrett v. Elko, 120 F.3d 261
(4th Cir. 1997), that his complaint may only be dismissed on
frivolity review if he can prove no set of facts that could
state a claim, that he has satisfied the pleading standard of
Fed.R.Civ.P. 8, and that he has stated a plausible claim
under Twombly. Compl. [DE-1-1] at 4. The Supreme
Court in Twombly explained that the "no set of
facts" language was "best forgotten as an
incomplete, negative gloss on an accepted pleading standard:
once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations
in the complaint." Twombly, 550 U.S. at 563.
Interpreting Brown's pro se complaint liberally
and taking his allegations as true, Knox is entitled to
derivative absolute judicial immunity. The essence of
Brown's complaint remains that Judge Baddour effectively
denied Brown's right to appeal and that the Clerk did not
respond, thereafter, to Brown's notice of appeal. As
explained above, the court previously determined that the
Clerk was entitled to derivative absolute judicial immunity
under these facts. Brown I, 2019 WL 1495259, at *1.
Brown's attempt to avoid dismissal by adding conclusory
allegations-that Knox failed to exercise the duties and
responsibilities of the office; that her conduct was in bad
faith and may rise to the level of wanton, malicious, or
reckless; and that she was not carrying out an order of the
court-does not change the result. See Twombly, 550
U.S. at 555 (explaining that labels and conclusions are
insufficient to satisfy the pleading standard of Fed.R.Civ.P.
8). Accordingly, it is recommended that the case be dismissed
because Knox is entitled to derivative absolute judicial
reasons stated herein, Plaintiffs application to proceed
in forma pauperis is ALLOWED, and it is ...