ORDER and MEMORANDUM & RECOMMENDATION
This pro se case is before the court on the application [DE #1] by Plaintiff Brandon Williams to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), the matter having been referred to the undersigned by the Honorable James C. Dever III, United States District Judge. For the reasons set forth below, Plaintiff's application to proceed in forma pauperis is allowed, the motions filed by the parties are stricken, and it is recommended that Plaintiff's claims against Defendants be dismissed.
The standard for determining in forma pauperis status is whether "one cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on the information contained in Plaintiff's affidavit, the court finds that Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs. Thus, Plaintiff's application to proceed in forma pauperis is ALLOWED.
Plaintiff seeks to sue the State of North Carolina, Office of the Governor, and the Commissioner of the North Carolina Division of Motor Vehicles under 42 U.S.C. §§ 1983, 1985, and 1986. (Id. at 2, 10.) Plaintiff also cites to 18 U.S.C. § 241 (Conspiracy against rights) and 42 U.S.C. § 242 (id. at 2), which the court construes as a citation to 18 U.S.C. § 242 (Deprivation of rights under color of law).
42 U.S.C. § 242 concerns studies and investigations conducted by the Secretary for the Department of Health and Human Services on the use and misuse of narcotic drugs and other drugs.
Plaintiff alleges he was "arrested, imprisoned, brutalized by the police, taken from his home to Mecklenburg County Jail and was made to pay excessive bail" without a warrant or Miranda warnings. (Prop. Compl. at 2-3.) Plaintiff appeared before North Carolina state judges in Mecklenburg and Cabarrus Counties and asserts his "constitutionally protected rights were violated" in court proceedings. (Id. at 4.) Plaintiff alleges he was also stopped in warrantless traffic stops with no probable cause. (Id. at 6.) Plaintiff seeks to sue the Commissioner of the North Carolina Division of Motor Vehicles over the suspension of his driver's license for failure to appear in Guilford County and failure to pay a fine in Cabarrus County. Plaintiff asserts the "Commissioner is acting as a debt collector for both counties." (Id. at 8.) Plaintiff requests compensatory damages of $20,000,000 and "other just compensation the Court deems fair and reasonable under the circumstances." (Id. at 11.)
II. Motions & Notice of Appeal
Since the fling of his application to proceed in forma pauperis, Plaintiff has submitted various filings [DE ## 5, 6, 7, 8, 9, 10, 17, 18, 19], including motions to enjoin criminal proceedings instituted against him in Guilford and Cabarrus Counties.
On October 14, 2019, Defendant Commissioner filed a Motion to Dismiss [DE #12] to which Plaintiff responded in opposition on October 23, 2019 [DE #15].
The motions filed by Plaintiff and Defendant are premature as they were filed prior to the court's determination of Plaintiff's application to proceed in forma pauperis and frivolity review under 28 U.S.C. § 1915. Accordingly, these filings should be stricken.
On January 13, 2020, Plaintiff also filed a notice purporting to appeal to the Fourth Circuit from a judgment or order entered in this action on January 10, 2020. "Ordinarily, 'a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance'" and generally divests the district court of jurisdiction over those matters involved in the appeal. 16A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. § 3949.1 (5th ed.). Here, however, there was no judgment or order entered on January 10, 2020, and Plaintiff's notice of appeal therefore has no effect on the court's authority to act in this matter.
III. Standard for Frivolity Review
Notwithstanding the determination that Plaintiff is entitled to in forma pauperisstatus, the court is required to dismiss all or part of an action found to be frivolous or malicious, which fails to state a claim on which relief can be granted, or which seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2); Michau v. Charleston County, 434 F.3d 725, 728 (4th Cir. 2006). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Pro se complaints are entitled to a more liberal treatment than pleadings drafted by lawyers. See White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to give a "short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. The statement must give a defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff must offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant." Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001); see also White, 886 F.2d at 723 (affirming district court's dismissal of plaintiff's suit as frivolous where plaintiff's complaint "failed to contain any factual allegations tending to support his bare assertion"). While the court must read the complaint carefully to determine if the plaintiff has alleged facts sufficient to support his claims, White, 886 F.2d at 724, the court is not required to act as the pro se plaintiff's advocate or to parse through volumes of documents or discursive arguments in an attempt to discern the plaintiff's unexpressed intent, Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
IV. Eleventh Amendment Immunity
The Eleventh Amendment provides a state and its agents and instrumentalities immunity from suits brought by citizens of the state. Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997); see U.S. CONST. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."). "Under the Eleventh Amendment, . . . neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent." Gamache v. Cavanaugh, 82 F.3d 410, 1996 WL 174623, at *1 (4th Cir. 1996).
Plaintiff's proposed complaint names as defendants the State of North Carolina, Office of the Governor, and the Commissioner of the North Carolina Department of Motor Vehicles. Both defendants are entitled to Eleventh Amendment immunity. Therefore, Plaintiff may pursue his claims only if "(1) the state has clearly and unambiguously waived sovereign immunity; (2) the case fits within the doctrine of Ex parte Young, 209 U.S. 123 (1908), which permits certain private suits against state officers; or (3) Congress has validly abrogated the immunity." Teague v. N. Carolina Dep't of Transp., No. 5:07-CV-45-F, 2007 WL 2898707, at *2 (E.D.N.C. Sept. 28, 2007).
Plaintiff has not included any allegations from which it may be inferred that the State of North Carolina has waived its immunity with respect to the claims Plaintiff alleges. Nor does Plaintiff invoke a federal statute that abrogates the state's sovereign immunity. See, e.g., Quern v. Jordan, 440 U.S. 332, 345 (1979) (concluding that § 1983 does not abrogate sovereign immunity); 15 U.S.C. § 1692a(6)(C) (exempting from coverage under the Fair Debt Collection Practices Act "any officer or employee of . . . any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties."). Moreover, Plaintiff is not seeking prospective relief against a state official so as to fall within the Ex parte Young exception. As such, Plaintiff's claims are barred by the Eleventh Amendment.
For the reasons stated above, Plaintiff's application to proceed in forma pauperis is ALLOWED, the motions filed by Plaintiff and the Commissioner are hereby STRICKEN, and it is RECOMMENDED that Plaintiff's claims against Defendants be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties or their counsel of record. Each party shall have until February 10, 2020, 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 may 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).
This 23rd day of January 2020.
KIMBERLY A. SWANK
United States Magistrate Judge