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Carter v. Pellicane

United States District Court, W.D. North Carolina, Charlotte Division

December 19, 2019

Dianne Michele Carter, Plaintiff
Thomas Pellicane, SOUSM, U.S. Marshals Service W/NC; Barbara Yates, DUSM- U.S. Marshals Service W/NC; and Gregory Allyn Forest, U.S. Marshal, Defendants.



         This 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).[1] 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.

         In 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”).[2] 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.

         I. Background

         Carter 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)[3] (“Carter I”).[4] 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.

         The IRS 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.

         The 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.

         Shortly 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.”

         The 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.”[5] 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.”[6] 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.

         Carter 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.[7]

         On 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.

         Carter 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.

         II. Standard

         The 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 ...

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