Opinion
No. 4:19-CV-108-FL
08-08-2019
CALVIN EARL BROWN, Plaintiff, v. JENNIFER KNOX, CLERK OF SUPERIOR COURT OF WAKE COUNTY, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
This 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.
I. STANDARD OF REVIEW
Pursuant 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.
In 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 Plaintiff's 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).
In 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 Atl. 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).
II. DISCUSSION
Brown 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.
Brown 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 I"), 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 F. App'x 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")).
Brown 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 plaintiff's 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.
Additionally, 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 F. App'x 728 (4th Cir. 2012).
Finally, 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 immunity.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until August 22, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 8th day of August 2019.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge