Hinton v. Whittenton

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. $:23-CV-98-BO-BM

LARENE HINTON and THE JAMES )

ROGER ELLIOT’S HEIRS, )

Plaintiffs, )

)

Vv. ) ORDER

)

RENEE WHITTENTON, SANDRA )

BROADWELL PAYE, ALFREDIA )

WATERS, DERICK WATERS, and )

CHRISTOPHER CARL, )

Defendants. j

This cause comes before the Court on the memorandum and recommendation of United

States Magistrate Judge Brian S. Meyers. Plaintiff Hinton has responded and the matter is ripe for

ruling. For the reasons that follow, the memorandum and recommendation is adopted in its entirety

and this action is dismissed.

BACKGROUND

Plaintiff Hinton (“plaintiff”) initiated this action pro se on behalf of herself and The James

Roger Elliott’s Heirs. She seeks redress under 42 U.S.C. § 1983 for alleged violations of her civil

rights, including rights provided by the Fourteenth, Eighth, Seventh, and Sixth Amendments to the

United States Constitution. She also appears to allege state law fraud and breach of fiduciary duty

claims. Each of plaintiff's claims arise from the probate her father Leroy Elliott’s estate in 1992

and a partition proceeding regarding real property in Bunnlevel, North Carolina in 2022. Plaintiff

contends that Alfredia Waters, executrix of Mr. Elliott’s estate, along with her husband Derick

Waters and her attorney Christoper Carr', deceived plaintiff and other heirs, preventing them from

receiving their share of the proceeds Mr. Elliott’s estate. Plaintiff further contends that, after Ms.

Waters filed for a partition of Lot 9 on Nutgrass Road in Bunnlevel in 2017, plaintiff was

improperly denied a jury trial as to the partition and that Assistant Clerk of Superior Court Paye

ruled in favor of Ms. Waters by dividing Lot 9 into equal shares between plaintiff and Ms. Waters.

Underlying plaintiff's claims are her assertions that Ms. Waters lied to her and the other

heirs regarding the disposition of Mr. Elliott’s estate and that Ms. Waters became a millionaire as

a result; that the Harnett County Clerk of Superior Court, unnamed county commissioners, and

attorneys assisted Ms. Waters and her husband, Derick Waters, in depriving plaintiff of her share

of Mr. Elliott’s estate; and that orders by the clerk of superior court should have no legal effect

because a superior court judge who is a lawyer should have decided any dispute over the estate or

the ownership of rea! property.

Magistrate Judge Meyers, in a thorough order and memorandum and recommendation

(M&R), addressed myriad motions filed by plaintiff as well as motions and amended motions to

dismiss filed by the defendants. As is relevant to this order, Magistrate Judge Meyers

recommended that the plaintiff The James Roger Eiliott’s Heirs be dismissed because plaintiff,

who proceeds pro se, is not authorized to represent a party other than herself.

The M&R also recommends dismissal of the claims against defendants Clerk of Superior

Court Whittenton and Assistant Clerk of Court Paye for lack of subject matter jurisdiction as barred

by the Eleventh Amendment to the United States Constitution, which “bars suit against non-

consenting states by private individuals in federal court.” Bd. of Trustees of the Univ. of Ala. v.

Garrett, 531 U.S, 356, 363 (2001). This guarantee applies not only to suits against the state itself

| The complaint identifies Christopher “Car!” as a defendant but it appears the correct spelling ts

“Carr.”

but also to suits where “one of [the state’s] agencies or departments is named as the defendant” as

well as state officers who are sued in their official capacities. Pennhurst State Sch. & Hosp. v.

Haiderman, 465 U.S. 89, 100-102 (1984). The M&R further recommends that the claims against

Whittenton and Paye are subject to dismissal due to the quasi-judicial immunity afforded to clerks

of court when they carry out judicial functions pursuant to state law. See, e.g., Arroyo v. Zamora,

No. 3:17-CV-721-FDW-DCK, 2018 WL 1413195, at *4 (W.D.N.C. Mar. 21, 2018).

As to plaintiff's request for injunctive relief, the M&R recommends that such relief would

violate the Rooker-Feldman doctrine because it would, at bottom, require this Court to review and

render ineffectual the state probate and partition orders. The Rooker-Feldman doctrine prevents

federal district courts from exercising jurisdiction over challenges to state court decisions.

Friedman’s, Inc. v. Dunlap, 290 F.3d 191, 196 (4th Cir. 2002). It applies to the review of both

“issues actually decided by the state court” and review of “those claims which are ‘inextricably

intertwined’ with state court decisions.” Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198

(4th Cir. 2000). Claims are “inextricably intertwined” when, for the claims to succeed, the federal

court must determine “that the [state] court judgment was erroneously entered or must take action

that would render the judgment ineffectual.” Jordahl v. Democratic Party of Va,, 122 F.3d 192,

202 (4th Cir. 1997).

The M&R recommends that plaintiff's remaining claims be dismissed for failure to state a

claim pursuant to Rule 12(b)(6). Specifically, the magistrate judge determined that plaintiff cannot

state a 42 U.S.C. § 1983 claim against defendants Alfredia and Derick Waters and Christoper Carr

because she has not alleged that these defendants acted under color of state law. The M&R

addresses plaintiff's myriad claims with respect to the powers of clerks of superior court, requests

for ajury trial in a probate proceeding, request for a full-time judge lawyer for Harnett County and

a police hub in Bunnlevel; and request for an investigation into the circumstances surrounding

Leroy Elliott’s guardianship and the deaths of Mr. Elliott and others and finds them to be without

a basis in law, frivolous, and properly dismissed.

Finally, the M&R recommends that plaintiff's state law claims against defendant Carr be

dismissed as barred by the statute of limitations insofar as they are not barred by the Rooker-

Feldman doctrine and that the state claims against Alfredia and Derick Waters be dismissed for

lack of diversity jurisdiction, the statute of limitations, and for otherwise failing to state a claim.

DISCUSSION

“The Federal Magistrates Act requires a district court to make a de neve determination of

those portions of the magistrate judge’s report or specified proposed findings or recommendations

to which objection is made.” Diamond vy. Colonial Life & Acc. ins. Co., 416 F.3d 310, 315 (4th

Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. 636(b). Absent timely

objection, “a district court need not conduct a de nove review, but instead must only satisfy itself

that there is no clear error on the face of the record in order to accept the recommendation.”

Diamond, 416 F.3d at 315 (quotation omitted). A party’s objections must be made “with sufficient

specificity so as reasonably to alert the district court of the true ground for the objection.” United

States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). “[W]hen reviewing pro se objections to a

magistrate’s recommendation, district courts must review de novo any articulated grounds to

which the litigant appears to take issue.” Elijah v. Dunbar, 66 F 4th 454, 460-61 (4th Cir. 2023).

At the outset, plaintiff does not lodge any objection or take issue with the dismissal of any

claims brought by plaintiff on behalf of The James Roger Elliott’s Heirs or the recommendation

that the motions at DE 9, 32, 39, 46, 50, and 53 be denied as moot.? The Court has reviewed the

2 Two of these motions are motions to dismiss which were amended by defendants. [DE 9, 39].

M&R for clear error as to these matters and finds none. Those portions of the M&R are therefore

adopted.

Plaintiff has, however, lodged specific objections to the recommendation that her claims

against the defendants be dismissed.

A. Eleventh Amendment, powers of the clerk of court, and Rooker-Feldman

The gravamen of plaintiffs objections concerns her arguments, raised before the

magistrate judge and considered de novo here, that North Carolina clerks of superior court do not

or should not have authority to decide probate and real property partition proceedings and that

clerks of superior court are county employees. To that end, plaintiff argues that the Eleventh

Amendment does not shield Renee Whittenton, Sandra Paye, and Hamett County? from being sued

because the Harnett County Clerk of Superior Court is an elected official who works for the county,

not the state. Plaintiff further contends that the clerk and assistant clerk’s probate orders are invalid

because they are not attorneys, and it is illegal to practice law in North Carolina without a license.

Contrary to plaintiff's arguments, in North Carolina the clerk of superior court and her

assistant are granted express authority by the North Carolina General Statutes to decide probate

and certain other matters.

The Superior Court Division of the General Court of Justice consists of the several

superior courts of the State. The clerk of superior court in the exercise of the judicial

power conferred upon him as ex officio judge of probate, and in the exercise of

other judicial powers conferred upon him by law in respect of special proceedings

and the administration of guardianships and trusts, is a judicial officer of the

Superior Court Division, and not a separate court.

N.C. Gen. Stat. § 7A-40. As is relevant here, a clerk of superior court’s judicial power extends to

partition of real property, which is a special proceeding. N.C. Gen. Stat. § 46A-1; Bare v. Atwood,

3 Harnett County is not a named defendant in plaintiff's original complaint nor is it identified as a

defendant in any of her requests to amend or supplement her complaint.

204 N.C. App. 310, 315 (2010). Additionally, assistant clerks of superior court are authorized by

state law to perform all of the duties and functions of the clerk of superior court. N.C. Gen. Stat. §

7A-102. Finally, “[t]he clerk of superior court is a full-time employee of the State[.]” N.C. Gen.

Stat. § 7A-101.

Thus, where a clerk of superior court or her assistant is acting pursuant to her judicial

powers provided by statute, she is a state judicial officer. Whittenton and Paye have been named

in their official capacities as clerk and assistant clerk of superior court, and thus any suit against

them is a suit against the state and is barred by the Eleventh Amendment absent waiver. Alford v.

Mecklenburg Cnty. Clerk of Superior Ct., No. 3:19-CV-156-MOC-DSC, 2019 WL 2881556, at *3

(W.D.N.C. July 2, 2019); Day v. Santaniello, No. 5:15-CV-165-FL, 2015 WL 13735398, at *6

(E.D.N.C. Oct. 7, 2015) (“Eleventh Amendment immunity bars any claims against the defendant

assistant district attorneys, judges, and clerk of court in their official capacities.”), report and

recommendation adopted in part sub nom. Day v. A.T. Santaniello, No. 5:15-CV-165-FL, 2015

WL 7306447 (E.D.N.C. Nov. 19, 2015). Moreover, as the judicial power granted to clerks of

superior court and their assistants is provided by statute, it is of no moment if either defendant

Whittenton or Paye are not licensed attorneys. Finally, plaintiff contends that Rooker-Feldman

does not apply because an order by a clerk of superior court is not a state court order, Again, this

argument fails because a clerk of superior court is empowered by state statute to exercise judicial

powers on behalf of the state superior courts.

B. Under color of state law

Plaintiff also argues that Alfredia Waters’ actions could be considered to have been taken

under state law as she was “a willful participant in joint activity with the State or its agents.”

Dennis v. Sparks, 449 U.S. 24, 27 (1980). Plaintiff contends specifically that Alfredia Waters

worked with the clerk of superior court to deceive the James Roger Elliott heirs and plaintiff. But

to demonstrate that Ms. Waters was a state actor through joint activity, plaintiff must plausibly

allege that Ms. Waters engaged in a conspiracy with a state actor and must therefore “assert facts

from which a conspiratorial agreement can be inferred.” Wiggins v. 1] Kew Garden Ct., 497 F.

App’x 262, 264 (4th Cir. 2012). Plaintiff's bare assertion that Ms. Waters worked with the clerk

of superior court is insufficient to allege that a civil conspiracy was in place. See id. (factual

contentions which show only entering orders or legal decisions are insufficient to plead a

conspiracy). She has failed, therefore, to plausibly allege any state action by Ms. Waters or Mr.

Waters, and her § 1983 claims against them are properly dismissed.

C. Diversity jurisdiction

Plaintiff argues that the Court has diversity jurisdiction over her state law claims because

plaintiff lives in South Carolina, but she fails to object to the magistrate judge's conclusion that

the amount in controversy required for diversity jurisdiction pursuant to 28 U.S.C. §1332 has not

been satisfied.

D. Adding defendant David McRae

Plaintiff argues that attorney David McRae should be added as a defendant because he

should have known that the clerk of superior court has no judicial powers when he was representing

Alfredia Waters in 2022. First, the magistrate judge has denied plaintiffs motion to amend to add

Mr. McRae as a defendant, and it is not a part of his recommendation. Second, to the extent the

Court would construe plaintiff's argument as an appeal of the magistrate judge’s decision, see

Local Civil Rule 72.4(a), her appeal fails because, as discussed above, the clerks of superior court

are granted judicial powers expressly by state statute.

E. Attorney Carr and fraud

Plaintiff argues that Attorney Carr deceived plaintiff by allowing her to pay taxes on land

that had already been paid. She contends that a statute of limitations does not bar her claims

because plaintiff did not learn that the clerk of superior court was practicing law without a license

until this case and “[t]he statute of limitations starts when you find out about the incident.” [DE

64 at 13]. Plaintiff states that there is also no statute of limitations for murder, and plaintiff believes

that her father and his two brothers were murdered. Also, an attorney named James F. Penny was

found dead in his office and plaintiff believes there was foul play because of a promise made to

her father.

As outlined by the magistrate judge, the conduct giving rise to plaintiff's claims against

Mr, Carr occurred in 1992 and the statute of limitations for fraud is three years. N.C. Gen. Stat. §

1-52. Plaintiff was on constructive notice of the deed she alleges Mr. Carr fraudulently obtained

when it was filed as a public record with the Harnett County Register of Deeds. See Sayman v.

Lehman Bros. FSB, No. 3:13-CV-288-RJC-DSC, 2014 WL 868711, at *4 (W.D.N.C. Mar. 5,

2014). Plaintiff's argument regarding the power of the clerk of court to enter judicial orders does

not toll the statute of limitations as it is fundamentally without merit. Finally, whether the

appropriate state authorities should investigate the death of an individual is not cognizable in a

civil action and has no impact on whether plaintiff's claim of fraud against Mr. Carr is time-barred.

In sum, the Court has considered plaintiff's specific objections to the M&R de novo and

reviewed the remaining portions of the M&R for clear error. The M&R contains no clear error and

plaintiff's objections are without merit and overruled. The M&R is adopted in its entirety.

CONCLUSION

For the foregoing reasons, the M&R [DE 61] is ADOPTED in its entirety. The motions to

dismiss at [DE 14, 24, and 41] are GRANTED. Any claims by plaintiff on behalf of The James

Roger Elliott’s Heirs are DISMISSED. All remaining motions [DE 9, 32, 39, 46, 50, 53] are

DENIED AS MOOT. Plaintiff's amended and supplemented complaint is DISMISSED and the

clerk is directed to close the case.

SO ORDERED, thispt day of March 2024.

je W. BOYLE

UNITED STATES DISTRICT JUDGE