Justice v. Nelson

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Civil Action No. 5:22-cv-00350-M

THEODORE JUSTICE,

Plaintiff,

ORDER

UNITED STATES OF AMERICA,

Defendant.

These matters come before the court on the Memorandum and Recommendation (“M&R”)

issued by United States Magistrate Judge Robert T. Numbers, II [DE 5], Plaintiff’s “Affidavit of

Prejudice” pursuant to 28 U.S.C. § 144 (DE 7), and Plaintiff's Motion to Change Venue [DE 9].

Judge Numbers recommends that the Complaint, filed by the Plaintiff pro se, be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B). On December 8, 2022, Plaintiff filed an objection to the

M&R that is dated November 28, 2022 (DE 8); notably, an attachment to the filing is dated

December 6, 2022 (see DE 8-3). Nevertheless, pursuant to Fed. R. Civ. P. 6(a) and 6(d), the court

finds the objection is timely. After a de novo review in this case, the court sustains in part and

overrules in part Plaintiff's objections to the M&R and accepts in substantial part the M&R’s

recommended rulings. The court orders that the Plaintiff file an Amended Complaint, in

accordance with this order, on or before August 4, 2023. In addition, the court liberally construes

Plaintiff's affidavit as a motion and refers it to Judge Numbers. Finally, the court finds an

insufficient basis for transferring this case to another venue and, thus, Plaintiff's motion to change

venue is denied.

I. Recommendation for Dismissal

A. Standard of Review

A magistrate judge’s recommendation carries no presumptive weight. The court “may

accept, reject, or modify, in whole or in part, the. .. recommendation[ ] . . . receive further evidence

or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1); accord

Mathews v. Weber, 423 U.S. 261, 271 (1976). The court “shall make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which objection

is made.” Jd. § 636(b)(1). Without timely objection, de novo review is unnecessary, and a district

court need only check for clear error on the face of the record to accept the magistrate judge’s

recommendation. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.

2005) (citing 28 U.S.C. § 636(b)(1)). Upon careful review of the record, “the court may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1).

In light of Plaintiff's IFP status, the court must also evaluate the viability of the claims in

his complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate claims that

unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss

any portion of the complaint that is frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief from a defendant who is immune from such relief. Jd. §

1915(e)(2)(B). “Although a pro se litigant’s pleadings are to be construed liberally, [his] complaint

must contain factual allegations sufficient ‘to raise a right to relief above the speculative level”

and that “state a claim to relief that is plausible on its face.’” Adkins v. Whole Foods Mkt. Grp.,

Inc., No. 22-2141, 2023 WL 315276, at *1 (4th Cir. Jan. 19, 2023), cert. denied sub nom. Adkins

v. Whole Foods Mkt. Grp., No. 22-1024, 2023 WL 4163243 (U.S. June 26, 2023) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) and citing Gordon v. Leeke, 574 F.2d 1147,

1151 (4th Cir. 1978)). This “plausibility standard requires a plaintiff to demonstrate more than a

sheer possibility that a defendant has acted unlawfully.” /d. (quoting Francis y. Giacomelli, 588

F.3d 186, 193 (4th Cir. 2009)). The plaintiff “must articulate facts that, when accepted as true,

demonstrate [he] has stated a claim entitling [him] to relief.” Jd.

B. Analysis

Judge Numbers recommends that Plaintiff's Complaint be dismissed based on the doctrine

of res judicata, or “claim preclusion.” Specifically, Judge Numbers contends that the operative

Complaint in this case is substantially the same as an Amended Complaint reviewed and dismissed

by the Honorable Louise W. Flanagan in a previous case and, thus, Plaintiff is precluded from

raising the same claims in this case.! See Justice v. NCDHHS, No. 5:18-CV-00187, DE 71

(E.D.N.C. May 20, 2020). Judge Flanagan’s order was affirmed by the Fourth Circuit Court of

Appeals on January 5, 2022. /d., DE 81. Plaintiff objects and counters that the Complaint in this

case is different, because it “adds two Defendants[,] a fresh detailed narrative[,] and request/s]

money damages.” DE 8 at 2.

Typically, claim preclusion is an affirmative defense that must be pleaded. Georgia Pac.

Consumer Prod., LP v. Von Drehle Corp., 710 F.3d 527, 533 (4th Cir. 2013). However, “[a] court

may raise sua sponte an affirmative defense based on preclusion only in ‘special circumstances.’”

Id. at 535 (citing Arizona y. California, 530 U.S. 392, 412 (2000)). The Supreme Court has

identified the following circumstances as “special”: when “‘a court is on notice that it has

1 Judge Numbers essentially relies on his Memorandum & Recommendation issued in Justice v.

NCDHHS, No. 5:22-CV-00025-M, in which he makes the same argument with respect to the

“substantially similar’ pleading filed in that case. See id., DE 6. Plaintiff voluntarily dismissed

that case before the court ruled on the M&R. /d., DE 10.

previously decided the issue presented” and its order is “based on the avoidance of unnecessary

judicial waste.” Arizona, 530 U.S. at 412; see also Clodfelter v. Republic of Sudan, 720 F.3d 199,

209 (4th Cir. 2013) (affirming sua sponte consideration of claim preclusion where “the district

court here has expended significant judicial resources on determining whether the plaintiffs are

entitled to relief’). The court finds that this case’s procedural history constitutes special

circumstances: no party disputes that judicial resources in this district have been spent on the

resolution of the same or similar issues raised in this case. See Justice v. NCDHHS, No. 5:18-CV-

00187, DE 71. Accordingly, the court will proceed to consider whether Plaintiff's claims are

precluded.

As a general matter, “[t]he preclusive effect of a federal-court judgment is determined by

federal common law.” Taylor v. Sturgell, 553 U.S. 880, 891 (2008). The Fourth Circuit instructs,

“The rules of claim preclusion provide that if the later litigation arises from the same cause of

action as the first, then the judgment in the prior action bars litigation ‘not only of every matter

actually adjudicated in the earlier case, but also of every claim that might have been presented.’”’

Orca Yachts, L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002) (citing /n re Varat Enters.,

Inc., 81 F.3d 1310, 1315 (4th Cir. 1996)). Thus, under the doctrine of claim preclusion, a final

judgment forecloses “successive litigation of the very same claim, whether or not relitigation of

the claim raises the same issues as the earlier suit.” Zaylor, 553 U.S. at 891 (quoting New

Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In other words, “while [the doctrine of] issue

preclusion applies only when an issue has been actually litigated, claim preclusion requires only a

valid and final judgment.” Orca Yachts, 287 F.3d at 318.

In the Fourth Circuit, whether res judicata precludes a subsequent action “turns on the

existence of three factors: (1) a final judgment on the merits in a prior suit; (2) an identity of the

cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in

the two suits.” U.S. ex rel. May v. Purdue Pharma L.P., 737 F.3d 908, 912 (4th Cir. 2013) (citing

Clodfelter, 720 F.3d at 210). Applying these factors to the instant case, this court finds that

Plaintiff is precluded from raising his claims again and the Complaint should be dismissed.

With respect to the first factor, in the previous case, Judge Flanagan dismissed Plaintiff's

claims on June 18, 2020. See Justice v. NCDHHS, No. 5:18-CV-00187-FL, DE 78. The Fourth

Circuit characterized Judge Flanagan’s order as a “‘final order” that “dismissed the case for failure

to comply with a court order.” /d. DE 81 at 4. The appellate court did not identify the applicable

tule (see id.), but Rule 41(b) of the Federal Rules of Civil Procedure governs “involuntary

dismissals” for a plaintiffs failure to comply with a court order. See Fed. R. Civ. P. 41(b). Ina

separate case, the Fourth Circuit precluded an appeal based on the same facts underlying a

counterclaim that was previously adjudicated by a state court saying, “[a]lthough Rule 41 Fed. R.

Civ. P. was not mentioned in the order, this was plainly an involuntary dismissal for violation of

the rules or an order of the district court under Fed. R. Civ. P. 41(b) and, as such, is an adjudication

on the merits.” Orca Yachts, 287 F.3d at 319. The court concluded that the plaintiff could □□□

longer maintain [the] appeal founded upon identical grounds as those in its Florida counterclaim

because such an action is barred by the doctrine of res judicata.” Jd.

In the present Complaint, Plaintiff recites his understanding of the procedural history in

5:18-cv-187-FL saying that, after an earlier dismissal order by the Honorable Terrence W. Boyle

was reversed on appeal (see id., DE 30, 37), “[t]he District Court regardless ignored the opinion

of the Court of Appeals and [did] not allow the complaint to be contested but dismissed it without

prejudice[.] Plaintiff appealed a second time[;] however the appeal was denied without prejudice

which would leave plaintiff the option to refile.’ Compl. 2, DE 6. Plaintiff is incorrect in

material respects. While Judge Flanagan dismissed the operative Amended Complaint without

prejudice on May 22, 2020, she also ordered Plaintiff to file a motion to amend, together with a

proposed second amended complaint, on or before June 12, 2020. See 5:18-cv-187-FL, DE 71.

Judge Flanagan warned Plaintiff that, if he failed to file the motion and proposed pleading, the

case would be closed without further court order. See id. When Plaintiff failed to comply with

the order, the Clerk of the Court entered Judgment against Plaintiff, noted that the defendants’

motions to dismiss were granted and Plaintiffs claims were “dismissed,” and closed the case (/d.,

DE 78). Contrary to Plaintiff's assertions, the Fourth Circuit found Judge Flanagan’s order and

judgment to be a “final” order “dismiss[ing] the case for failure to comply with a court order” (DE

81),” which, under Rule 41(b), “operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b).

The second factor requires that the court determine whether the cause of action in the

previous case is the same as the cause of action pled in the instant case. The Fourth Circuit follows

the “transactional” approach when considering whether causes of action are identical: “As long as

the second suit ‘arises out of the same transaction or series of transactions as the claim resolved

by the prior judgment,’ the first suit will have preclusive effect.” Clodfelter, 720 F.3d at 210

(quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)).

“Under this transactional approach, res judicata will bar a ‘newly articulated claim[ ]’ if it is based

on the same underlying transaction and could have been brought in the earlier action.” Jd. (quoting

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008)).

Plaintiff's reference to and recitation of the procedural history in 5:18-CW-00187-FL

reveals his misunderstanding of his ability to “refile” his claims concerning the alleged deprivation

2 On appeal, Plaintiff argued that his Complaint was sufficient and the district court should not

have ordered him to file an amended pleading. DE 81 at 4. However, the Fourth Circuit ruled

that, because Plaintiff did not raise this argument before the district court, the issue was not

properly before the appellate court. /d.

of benefits under the Supplemental Nutrition Assistance Program (“SNAP”). He describes his

claims, both in the instant Complaint and in the previous Amended Complaint, as follows:

“Specifically, plaintiff claims that he has been deprived of ‘medical travel expense reductions,’ to

which he is ‘entitled’ under the Supplemental Nutrition Assistance Program (“SNAP”). See

Compl. at 4.” DE 6 at 2; 5:18-CV-00187-FL, DE 27 at 1-2. The court has performed a side-by-

side comparison of the previous Amended Complaint and the Complaint in the instant case, and

agrees with Judge Numbers that they are substantially the same. The only differences are that

Plaintiff has added three individually named defendants and requests for compensatory and

punitive damages, changed the word “process” to “revisit” in his request for injunctive relief under

28 U.S.C. § 2202, and no longer asks the State to provide him “food stamps on an expedited basis.”

Compare id.

This court concludes that the causes of action asserted against the NCDHHS Secretary, the

Granville County Board of Commissioners, and Social Worker Denice Nelson are identical for

purposes of a claim preclusion analysis. The claims for relief articulated in the current Complaint

are the same as those in the prior Amended Complaint and are based on the same underlying set

of facts, and the claim against Ms. Nelson could have been brought in the earlier case: the new

allegations in the Second Claim of the current Complaint simply clarify that it was Ms. Nelson

who “rejected” “recogniz[ing] plaintiff[’s] child as a member of the household so the plaintiff

would not enjoy ... higher SNAP benefits.” Compare DE 6 at 12 with 5:18-CV-00187-FL, DE 27

at 9-10. The court also adopts Judge Numbers’ recommendation to accept the rationale of his

analysis in his M&R issued in Justice v. NCDHHS, 5:22-cv-25-M, that Ms. Nelson is sued in her

official capacity and is in privity with Granville County for res judicata purposes. Id., DE 6 at 4.

However, the court also finds that liberal application of the second and third factors to

Plaintiffs claims against Defendants Travis Knight and Pam Polak, as well as what appears to be

anew claim against Ms. Nelson, demonstrates that the claims are not identical. Judge Numbers is

correct that adding new Defendants will not automatically revive Plaintiffs prior claims; however,

the court does not agree that Knight and Polak (as characterized by Plaintiff) “‘are so closely aligned

to the prior parties as to be indistinguishable for purposes of res judicata.” See DE 5 at 4-5. With

respect to Defendants Nelson, Knight, and Polak, Plaintiff makes the following allegations, which

do not appear in the prior Amended Complaint:

4. ... Denice Nelson initiated a fraud investigation and hearings resulted in an

overpayment due to (Agency Error).

5. The appeal process is infinite regardless if either side losses they can appeal and

have another hearing. This back and forth hearing went on for some time and it

appeared the defendants nor plaintiff would either prevail so a compromise was

agreed, that plaintiff pay back $994.00 at $10.00 month food stamp allotment and

if for any reason I do not receive food stamps I would call and set up payments in

cash.

6. Plaintiff was disqualified for food stamps for one year in 2022, and defendants

Knight and Polak demand plaintiff sign a new agreement and pay $25.00 to $50.00

a month in cash or money order until the full amount is paid. Plaintiff has sent

money orders to Granville County Department of Social Service in the amount of

$10.00. The defendants want $25.00 to $50.00 which plaintiff is unable to afford.

7. Plaintiff requested a waiver since it was not his fault regarding the overpayment

and defendant Knight suggested plaintiff submit a hardship letter which he was to

submit to Polak and others. The letter was rejected as untimely which plaintiff

demises the Knight known or should have known if hardship letters were not being

accepted until and after September 2022.

Compl., DE 6 at 3-4. Judge Numbers recognizes these “new” claims but recommends that this

court refrain from involving itself in what appears to be a contract dispute. This court agrees that

the allegations may support a simple contract claim; however, construing this pleading liberally,

the court recognizes that the Plaintiff invokes 42 U.S.C. § 1983 “to redress deprivations of the

plaintiffs’ [sic] federal statutory and regulatory rights.” DE 6 at 7. As such, the court finds that

Plaintiff's Complaint may state non-frivolous claims for relief against Defendants Nelson, Knight,

and Polak.

That said, the court also finds that the Complaint currently alleges both precluded and new

claims, and is somewhat vague and difficult to discern. Therefore, in accordance with 28 U.S.C.

§ 1915 and Rule 8(a) of the Federal Rules of Civil Procedure, the court will order the Plaintiff to

file an Amended Complaint in accordance with this order, which clearly and succinctly alleges the

potential new claims against Defendants Nelson, Knight, and Polak, along with the facts that

support the potential new claims.

C. Conclusion

In sum, the court ACCEPTS IN PART AND DECLINES TO ACCEPT IN PART the

M&R, and DISMISSES Plaintiffs claims against Defendants NCDHHS Secretary and Granville

County Board of Commissioners, as well as all claims against Defendants Nelson, Knight, and

Polak other than those potentially supported by the allegations in paragraphs 4 through 7 of the

operative Complaint. The court ORDERS Plaintiff to file an Amended Complaint on or before

August 4, 2023, in accordance with this order, which clearly and succinctly alleges both the facts

set forth in paragraphs 4-7 of the operative Complaint and any potential new claims against

Defendants Nelson, Knight, and Polak (based on the referenced facts), over which this court has

subject-matter jurisdiction. If Plaintiff fails to comply with this order, the court will dismiss all

claims and close the case without further notice.

Il. Affidavit of Prejudice

Plaintiff has filed an “Affidavit of Prejudice ... and Certificate of Good Faith by Counsel

of Record.” DE 7. Plaintiff argues that Magistrate Judge Numbers should recuse based on the

rulings he has made in Plaintiffs case(s). The document does not specifically seek an order of

recusal, but construing the filing liberally as it must, the court interprets the document as a motion

for recusal under 28 U.S.C. § 144. See Harvey v. Landauer, No. 7:18-CV-00097, 2020 WL

1904458, at *2 (W.D. Va. Apr. 17, 2020). Therefore, the court refers the motion to Judge Numbers

for disposition.

II. Motion to Change Venue

Plaintiff asserts that he is “unable to receive any impartiality, detachment, or unbiasedness

in this court and therefore request[s] a change of venue to a federal court that would have

jurisdiction and no influences from this court.” DE 9 at 5. Plaintiff bases his request on his

perception that he has received “biased” rulings in this and previous cases. See id.

Under the relevant statute, “[flor the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any other district or division where it

might have been brought or to any district or division to which all parties have consented.” 28

U.S.C. § 1404(a). “District courts within this circuit consider four factors when deciding whether

to transfer venue: (1) the weight accorded to plaintiff's choice of venue; (2) witness convenience

and access; (3) convenience of the parties; and (4) the interest of justice.” Trustees of the Plumbers

& Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 79\ F.3d 436, 444 (4th Cir. 2015).

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With respect to the first factor, the request here is by the plaintiff, but the court notes that,

despite rulings in previous cases, Plaintiff filed the instant case in this district. In addition, Plaintiff

fails to identify a venue to which he seeks a transfer. Thus, this factor weighs neutrally in

determining whether to change venue.

Furthermore, the parties all appear to be residents of North Carolina, Plaintiff identifies the

individually named Defendants as employees of Granville County, North Carolina, and all events

relevant to the Plaintiff's claims appear to have occurred in this district; accordingly, these factors

weigh against changing venue.

Finally, because the Plaintiff identifies and the court discerns no facts supporting an

adequate basis on which to find that Plaintiff has suffered extrajudicial prejudice or bias in this

case, the court concludes that the interest of justice does not warrant a change of venue. Cf. Liteky

v. United States, 510 U.S. 540, 550 (1994) (defining bias as “a favorable or unfavorable disposition

or opinion that is somehow wrongful or inappropriate, either because it is undeserved, . . . rests

upon knowledge that the subject ought not to possess[,] . . . [or] is excessive in degree... .”); see

also United States v. Johnson, No. 7:10-CR-0093-BR, 2015 WL 10690415, at *1 (E.D.N.C. Jan.

16, 2015) (stating, “judicial rulings alone almost never constitute a valid basis for” demonstrating

bias or partiality) (citing Liteky, 510 U.S. at 555). Accordingly, Plaintiff's motion to change venue

[DE 6] is DENIED.

SO ORDERED this _Z M.., of July, 2023.

| EM yews

RICHARD E. MYERS II

CHIEF UNITED STATES DISTRICT JUDGE

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