United States District Court, W.D. North Carolina, Charlotte Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff Dianne Michele
Carter's (“Carter”) pro se Complaint,
construed as one pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). ECF No. 1. Carter alleges violations of
her constitutional rights when Deputy United States Marshals
arrested her on an outstanding bench warrant at a house she
claims belongs to the Moorish Holy Temple of Science.
Defendants filed a motion to dismiss, or in the alternative,
for summary judgment. ECF No. 12. Because Carter is
proceeding pro se, the Magistrate Judge entered an order
pursuant to Roseboro v. Garrison, 528 F.2d
309 (4th Cir. 1975), advising her of the importance of the
motion and the need to file an adequate response. ECF No. 13.
Carter filed a response in opposition (ECF No. 15),
Defendants filed a reply (ECF No. 16), and Carter filed a
sur-reply (ECF No. 17). Carter also filed a motion to amend
her Complaint. ECF No. 20.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Shiva V. Hodges for pre-trial
proceedings and a Report and Recommendation
(“Report”). On November 6, 2019, the Magistrate
Judge issued a Report recommending Defendants' motion to
dismiss be granted and Carter's motion to amend be denied
as futile. ECF No. 21. The Magistrate Judge advised Carter of
the procedures and requirements for filing objections to the
Report and the serious consequences if she failed to do so.
Carter filed objections to the Report on November 20, 2019.
ECF No. 22.
was a tax preparer who operated Carter Sensible Tax Service.
United States v. Dianne M. Carter, 3:16-cv-673 (W.D.
N.C. Sept. 14, 2018) (ECF No. 12-2 at 1) (“Carter
I”). In 2014, the Internal Revenue Service
(“IRS”) reviewed sixty-three tax returns prepared
by Carter between 2011 and 2014 and concluded thirty of these
returns had evidence of improper conduct. Id. at 2.
Twenty-five of the returns were federal income tax returns
prepared for inmates at Nash Corrections Institution.
Id. at 4. The returns were allegedly based on
entirely fabricated incomes and withholdings, Id. at
6, and claimed refunds ranging from $7, 924 to $19, 996.
Id. at 3; see, e.g., ECF No. 12-3 at 2. Five of the
returns reviewed by the IRS were prepared on behalf of
purported trusts. ECF No. 12-2 at 3. These returns listed no
income for the “trusts, ” Id. at 5, yet
claimed refunds ranging from $750, 000 to $8, 035, 560.
Id. at 3.
rejected refunds in all but one of these tax returns.
Id. at 12. However, the IRS mistakenly issued a
$750, 000 refund to one of the purported trusts. Id.
at 11-12. To recover this refund, the IRS brought a
collections action against the fiduciary of the trust and was
able to recover $749, 949.10. Id. at 12. As a
consequence of investigating Carter's activities, the IRS
accrued at least $23, 000 in administrative costs.
Id. On September 16, 2016, the United States filed a
Complaint primarily seeking an injunction to stop Carter from
acting as a tax preparer and filing any other tax returns on
behalf of others. ECF No. 1.
United States moved for summary judgment, requesting a
permanent injunction and other equitable relief. ECF No. 12.
After full briefing, the court granted the United States'
motion for summary judgment and issued an Injunction on
October 2, 2017 ordering Carter to permanently cease acting
as a federal income tax return preparer in any capacity; to
notify, by November 1, 2017, all persons for whom she
prepared, or assisted in preparing, federal tax returns to
inform them of the permanent injunction entered against her;
and to provide counsel for the United States, by November 1,
2017, a list of all persons for whom Carter had prepared a
federal income tax return, amended return, or refund claim
since January 1, 2010. Finally, Carter was ordered to file
with the Clerk of the Court in North Carolina a sworn
certificate of compliance by December 1, 2017. See ECF No.
16. The docket reflects this Order and the Judgment were
served on Carter by U.S. mail.
after the entry of the Order, on October 12, 2017, Carter
filed a document docketed as a “Pro se Response re
Order on Motion for Summary Judgment” and entitled
“Objection to Order and Jurisdictional Challenge,
” which challenged the court's jurisdiction based
on sovereign citizen type arguments. ECF No. 18. About six
weeks later, on November 28, 2017 she filed a notice of
appeal, which included a request to stay the case until the
Fourth Circuit ruled on her appeal. ECF No. 19. No. stay was
granted. On December 14, 2017, the United States filed a
motion for Order to Show Cause why Carter should not be held
in contempt for failing to comply with the court's Order
and Injunction. ECF No. 24. The court entered an Order on
December 21, 2017 setting a January 5, 2018 hearing for
Carter to show cause why she had not complied with the
court's October 2017 Order and why she should not be held
in contempt for non-compliance. ECF No. 25. The court ordered
Carter to be served in accordance with Rule 4(e) of the
Federal Rules of Civil Procedure. Id. at 2. This
Order also denied Defendant's motion to stay pending
appeal as moot. Id. On December 22, 2017, Carter
filed a motion to dismiss the motion to show cause,
contending the district court did not have jurisdiction
because the case was on appeal. ECF No. 27. The court denied
this motion by text order the next day, holding “no
court has issued a stay of the implementation of the subject
order in this case. Therefore the court retains jurisdiction
to enforce the subject order.”
show cause hearing was held on January 5, 2018. Carter did
not appear. The minute entry on the docket reveals “the
AUSA informed the court of all attempts to serve [Carter]
with the Show Cause Order. Court issued a bench warrant for
failure to comply with the court's October 2, 2017
Order.” The bench warrant showed the offense as
“contempt of court for failure to comply with the
Court's October 2, 2017 Order.” ECF No. 28. On
January 17, 2018, the United States a motion for an Order
authorizing all necessary actions to execute the bench
warrant. ECF No. 29. The Government stated Carter appeared to
be attempting “to evade arrest by refusing to leave her
home.” ECF No. 29-1 at 1. On January 25, 2018,
the court issued an Order authorizing all necessary actions
to execute the bench warrant. ECF No. 30. The Fourth Circuit
denied a stay and affirmed the district court's grant of
summary judgment on February 16, 2018. ECF No. 31.
was arrested pursuant to the bench warrant on February 26,
2018. ECF No. 34. The same day, a contempt hearing was held.
The court indicated it would release Carter from custody when
she complied with the October 2, 2017 Order. ECF No. 36
(hearing transcript). She represented she was not at home
when the Marshal came to arrest her, and she
“didn't know why they couldn't find me.”
Id. at 11, 15. However, the court stated “You
were informed by show cause orders and other things you
weren't in compliance, ” and Carter replied
“[t]hat's true.” Id. at 41. Carter
told the court she would comply with its Order, but the
required information was in her files at her home. The court
decided she could not be released from custody before
complying, and the Government was ordered to find an officer
to accompany Carter to her home and supervise while she
retrieved the information.
August 14, 2018, Carter filed a pro se motion to vacate the
show cause order, bench warrant, and order authorizing all
necessary actions to effect bench warrant. ECF No. 37. She
argued the show cause order was not properly served on her,
and therefore the court's orders and warrant were void.
Id. The court construed her motion as one for relief
from judgment under Rule 60 and denied it on September 14,
2018. ECF No. 38. On September 24, 2018, Carter filed a pro
se motion requesting another judge rehear the motion to
vacate. ECF No. 39. The court construed this as a motion to
recuse and denied it on September 25, 2018. Carter filed a
notice of appeal of the Order denying her motion to vacate on
November 6, 2018. She then filed a motion for relief
captioned as a “Jurisdiction Challenge” the
following day. ECF No. 40. Her motion argued there was
insufficient service of process and the court acted in excess
of jurisdiction, and requested the “judgments reversed
as void and a nullity.” Id. at 1. On November
14, 2018, the court denied her motion and held its exercise
of jurisdiction proper. ECF No. 41. Carter was also put on
notice in that Order her filings were frivolous and sanctions
would be considered if she continued to make frivolous
filings. Id. Finally, on April 8, 2019, the Fourth
Circuit affirmed the district court's decision on
Carter's post judgment motion. ECF No. 46.
has now filed the instant case alleging Defendants broke into
a house where she resides and arrested her without lawful
authority to do so. 3:19-cv-00104 at ECF No. 1. She alleges
constitutional and non-constitutional grounds for relief,
including claims under the Americans with Disabilities Act
(“ADA”) and 42 U.S.C. § 1983. Id.
She requests actual and punitive damages for her false arrest
and imprisonment. Id. at 9.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the ...