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Allen v. Mine

United States District Court, M.D. North Carolina

December 4, 2019

DERRICK ALLEN, Plaintiff,
v.
ALICE NEECE MINE, et al., Defendants.

          MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld, United States Magistrate Judge

         This case comes before the Court on Plaintiff's Application to Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed in conjunction with his pro se Complaint (Docket Entry 2). For the reasons that follow, the Court will grant Plaintiff's instant Application for the limited purpose of recommending dismissal of this action under 28 U.S.C. § 1915(e)(2).

         LEGAL STANDARD

         “The federal in forma pauperis [‘IFP'] statute, first enacted in 1892 [and now codified at 28 U.S.C. § 1915], is intended to guarantee that no citizen shall be denied access to the courts ‘solely because his poverty makes it impossible for him to pay or secure the costs.'” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with filing fees, however, [is] not without its problems. Parties proceeding under the statute d[o] not face the same financial constraints as ordinary litigants. In particular, litigants suing [IFP] d[o] not need to balance the prospects of successfully obtaining relief against the administrative costs of bringing suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004).

         To address this concern, the IFP statute provides, in relevant part, that “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or . . . (ii) fails to state a claim on which relief may be granted . . . .” 28 U.S.C. § 1915(e)(2)(B). Under the latter provision, the Court must dismiss any complaint that “does not “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) (emphasis added) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. In other words, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.[1]

         Alternatively, “a complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “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, 376 F.3d at 256-57 (some internal quotation marks omitted). In determining frivolousness, the Court may “apply common sense.” Nasim, 64 F.3d at 954.

         BACKGROUND

         Asserting claims under “42 U.S.C. § 1983” pursuant to “[t]he sixth clause of the First Amendment [to petition the government of a[] redress of grievances], the 14th [A]mendment[, ] section [o]ne, [] the 8th [A]mendment, third clause [cruel and unusual punishment], and the last clause of the [S]ixth [A]mendment . . ., ” Plaintiff initiated this action against five defendants: (1) “Alice Neece Mine” (“Defendant Mine”); (2) “Peter Bolac” (“Defendant Bolac”); (3) “Joe Cerone” (“Defendant Cerone”); (4) “Brian Oten” (“Defendant Oten”); and (5) “[t]he North Carolina State Bar.” (Docket Entry 2 at 1-3 (some brackets in original).) The Complaint states the following as the basis for asserting claims under Section 1983:

[Plaintiff's c]onstitutional [r]ights were violated, because of the stigma attached to [his] name due to being categorized as a sex offender/child murderer when charges were dismissed. [Plaintiff] was not allowed to have competent legal representation, or petition the government for a redress of grievances when attorney(s) continuously denied [him] representation or intentionally made it w[h]ere [Plaintiff] could not afford [their] representation.[ F]urthermore, every issue [Plaintiff] contacted the [North Carolina S]tate [B]ar abou[]t [ ] w[as] disregarded and resolved in favor of the said attorney. Because of this[, Plaintiff] ha[s] been subjected to homelessness, employment discrimination, slan[]der[, ] libel[, ] and [ ] housing discrimination.

(Id. at 4.) The Complaint's “Statement of Claim” states that “there are three separate occasions [that Plaintiff is] making reference to[]” and explains those instances as follows:

(1) 02/8/2017 [Plaintiff] faxed a[] Grievance to the North Carolina Bar Association regarding the contract [Plaintiff] signed with representatives of the Richardson [L]aw Firm[, p]articularly[] Attorney Kris Reed Pope [file # 17C0127]. . . .
(2) The district attorney['s] office[, ] particularly, Mr. Roger Echols and Mr. Luke Bumm[, ] committed what[']s known as legal malpractice and [Plaintiff's] efforts to file a[] grievance f[e]ll short and [he] never heard or was informed r[e]garding the investigation with Mr. Stephen C. [F]reedman.
(3) Every [a]ttorney['s] name and address [Plaintiff] got from the attorney referral service f[ell] short in the department of actually hiring an attorney to represent [Plaintiff ] because they either made their prices too high or they had an opinion regarding [Plaintiff's] actual innocence or guilt.

(Id. at 5.) The Complaint requests “compensat[ion] for [] mental anguish and punitive damages [in] the amount of $250, 000.00.” (Id. at 6.) It also incorporates numerous attachments (see Id. at 8-80), which include, inter alia, letters and grievance paperwork sent to and from the North Carolina State Bar (id. at 8-11, 19-21, 29-34, 37-39, 46-47, 52-57), state ...


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