ROBINSON v. BROOKS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LEONARD A. ROBINSON, et al. )

)

Plaintiffs, )

)

v. ) 1:20cv47

)

CASSANDRA L. BROOKS, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the undersigned United States

Magistrate Judge on the Applications to Proceed in District Court

Without Prepaying Fees or Costs (the “Applications”) (Docket

Entries 1, 2) filed in conjunction with Plaintiffs’ pro se

“Complaint and Request for Injunction and Stay Order” (Docket Entry

3). The undersigned will grant the Applications for the limited

purpose of recommending dismissal of this action without prejudice

to Plaintiffs filing a new Complaint which corrects the significant

defects of the current Complaint.

LEGAL STANDARD

“The federal in forma pauperis statute, first enacted in 1892

[and now codified at 28 U.S.C. § 1915], is intended to guarantee

that no citizen shall be denied access to the courts solely because

his poverty makes it impossible for him to pay or secure the

costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

Cir. 1995) (en banc) (internal quotation marks omitted).

“Dispensing with filing fees, however, [i]s not without its

problems. . . . In particular, litigants suing in forma pauperis

d[o] not need to balance the prospects of successfully obtaining

relief against the administrative costs of bringing suit.” Nagy v.

FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004). To address this

concern, the in forma pauperis statute provides that “the court

shall dismiss the case at any time if the court determines that

. . . the action . . . (i) is frivolous or . . . (ii) fails to

state a claim on which relief may be granted.” 28 U.S.C.

§ 1915(e)(2)(B).

As to the first of these grounds, “a complaint, containing as

it does both factual allegations and legal conclusions, is

frivolous where it lacks an arguable basis either in law or in

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). “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, 376 F.3d at 256–57 (some internal

quotation marks omitted). In determining frivolousness, the Court

may “apply common sense.” Nasim, 64 F.3d at 954.

Alternatively, a plaintiff “fails to state a claim on which

relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii), when the

complaint does not “contain sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (emphasis added)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between

possibility and plausibility of entitlement to relief.” Id.

(internal quotation marks omitted). This standard “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Id. In other words, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not

suffice.” Id.'

1 Although the United States Supreme Court has reiterated

that “[{a] document filed pro se is to be liberally construed, and

a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation

marks and citation omitted), the United States Court of Appeals for

the Fourth Circuit has “not read Erickson to undermine Twombly’s

requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Office of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint

- . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than

the mere possibility of misconduct.’” (first quoting Erickson, 551

U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).

BACKGROUND

Plaintiffs (proceeding pro se) initiated this action against

eight defendants: (1) “Cassandra L. Brooks” (“Defendant Brooks”),

(2) “Cassidy Professional Counseling, Inc.” (“CPCI”), (3) “Charles

M. Alexander” (“Mr. Alexander”), (4) “Heather R. Alexander” (“Mrs.

Alexander”), (5) “A.L. Collins” (“Attorney Collins”), (6) “William

Walker” (“Attorney Walker”), (7) “Attorney Bryant Thompson”

(“Attorney Thompson”), and (8) “Stafford R. Peebles, Jr., P.C.”

(“Attorney Peebles”). (Docket Entry 3 at 1, 3-5.)° Plaintiffs

claim that the Court’s jurisdiction in this matter is based upon

the existence of diversity of citizenship. (See id. at 6.)°

Presented in a conclusory and sometimes incoherent fashion,

the Complaint’s allegations apparently relate to the mismanagement

of the estate of a relative of the individual Plaintiffs. (See

generally id. at 1-11.) The Complaint alleges that various

Defendants “appear to have formed a criminal enterprise such as

described in [the Racketeer Influenced Corrupt Organizations

(“RICO”)] Statute” (id. at 7 (quotation marks omitted)), and

2 Citations to Docket Entry pages utilize the CM/ECF footer’s

pagination.

3 The Complaint identifies the individual Plaintiffs as

citizens of (and the organizational Plaintiff as a corporation

under the laws of) the state of Louisiana (see Docket Entry 3 at 1-

2; see also id. at 6), and further identifies Defendants as

citizens of (or corporations under the laws of) the states of

Michigan or North Carolina (see id. at 3-5; see also id. at 7-8).

The Complaint also asserts that “[t]he total amount in

contr[o]vers[]y is $4,000,000.00.” (Id. at 8.)

otherwise committed a “criminal act [which] was done by theft, []

fraud[,] and deception” (id. at 9). More specifically, the

Complaint asserts as its “basis for [] claim” the following:

. . . [P]arents of [ P]laintiff [Peggy M. Hairston]

. . . did provide a will with a specific power of

attorney and a predetermination agreement prepared by .

. . counsel . . . . Prepared directives . . . gave . .

. instructions as to how their final affairs should be

concluded and how the widow should be cared for. The

wrongful distribution of assets as alleged continues

after years of fraud by a guardian appointed with no

authority . . . . The Clerk of Court in Forsyth County

. . . appointed a guardian for Ms. Irene Fulton

Hairston’s estate while she was competent. [ W]ithout

probable cause[, the appointed guardian] sold last

surviving parent’s property (homestead), mismanaged

and[/]or wasted away her assets to cover fees and would

not provide her care with adequate funds [that the] last

surviving parent had in place. As a consequence to the

illegal actions of the appointed guardian, having

declared Ms. Irene Fulton Hairston incompetent, when in

fact she was not, [the appointed guardian] did award his

colleagues across interstate lines commerce with ill[-

]gotten gains from the estate of Ms. Hairston and []

caused professional harm and ruin to [] Plaintiff[s . .

. . a]nd forced [] Plaintiff [Hairston] to move her

mother . . . to Louisiana for her safety and care while

assuming total financial responsibility for the same in

[ex]cess of $300,000.00 without repayment from the

estate. . . .

(Id. at 10.)

The Complaint asks the Court to “grant[] injunctive relief

from [the] sale [of] all inherited property wherefore distributed

illegally until all civil, criminal[,] and financial matters have

been resolved . . . .” (Id.) Further, the Complaint claims that

the “total amount in contr[o]vers[]y is $4,000,000.00” (id. at 8),

to include (1) “$500,000.00” for the “[l]oss of professional

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licenses to practice law in state of Louisiana due to interference

of N.C. officials” (id. at 7), (2) “$1,000,000.00” for “[m]ental

[a]nguish” (id.), (3) “$1,000,000.00” for “[d]efamation of

[c]haracter (reputation)” (id.), (4) “$500,000.00” for

“[l]itigation [e]xpense[s]” (id.), and (5) “$1,000,000.00” for

[m]edical expenses; pain and suffering” (id.).

DISCUSSION

As an initial matter, the Complaint fails to allege the

specific dates and places as to the alleged activities. (See id.

at 1-11.) “An allegation of time or place is material when testing

the sufficiency of a pleading.” Fed. R. Civ. P. 9(f). Because of

the materiality of such allegations to the evaluation of the

sufficiency of the Complaint, Plaintiffs have not set forth an

adequate “short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). In

addition,

Rule 9(b) of the Federal Rules of Civil Procedure[ ]

requires that in alleging fraud, a party must state with

particularity the circumstances constituting the fraud.

This requires that a pleading contain the time, place,

and contents of the alleged fraudulent representation, as

well as the identity of each person making the

misrepresentation. While the [C]ourt recognizes that

Plaintiff[s are] prosecuting this action pro se, [they]

must still adequately set forth the critical facts to

support [their] fraud claims.

Bagwell v. Dimon, No. 1:14cv495, 2015 WL 2374614, at *8 (M.D.N.C.

May 18, 2015) (unpublished) (internal citations omitted) (italics

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in original). These patent deficiencies render the Complaint (as

currently pleaded) frivolous.

Further, in this case, the Complaint offers nothing more than

“unadorned, the-defendant-unlawfully-harmed-me accusation[s].”

Iqbal, 556 U.S. at 678. First, beyond naming them as Defendants,

the Complaint does not even so much as mention CPCI, Mr. Alexander,

and/or Mrs. Alexander. (See Docket Entry 3 at 1-11.) Next, the

Complaint’s conclusory allegations that Defendant Brooks committed

a “criminal act . . . [involving] theft[, ] fraud[,] and deception”

by “form[ing] a dummy [corporation] involving immovable property

belonging by inherit[a]nce to her aged uncle and aunt” (id. at 9

(parenthesis omitted)), and that Attorney Thompson, “as guardian of

the [subject e]state” (id. at 9), committed “illegal actions . . .

[and] did award his colleagues across interstate lines commerce

with ill[-]gotten gains from the estate . . . caus[ing]

professional harm and ruin to [] Plaintiff[s]” (id. at 10), fail to

plausibly establish any claim. See Iqbal, 556 U.S. at 678

(mandating that plaintiffs provide “factual matter” to support

claims and ruling “legal conclusions” and “conclusory statements”

insufficient).

Additionally, the Complaint contends that Attorney Collins,

Attorney Walker, Attorney Thompson, and Attorney Peebles “formed a

criminal enterprise such as described in RICO statute.” (Docket

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Entry 3 at 7.)4 To the extent Plaintiffs wish to pursue a federal

RICO claim, “[t]he Supreme Court has explained that a civil RICO

claim has four essential elements: (1) conduct; (2) of an

enterprise; (3) through a pattern; (4) of racketeering activity.”

Whitney, Bradley & Brown, Inc. v. Kammermann, 436 F. App’x 257, 258

(4th Cir. 2011) (citing Sedima, S.P.R.L. v. Imrex Co., Inc., 473

U.S. 479, 496 (1985)). “A plaintiff bringing a civil RICO action

. . . must adequately plead at least two predicate acts of

racketeering that form a ‘pattern of racketeering.’” American

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 233

(4th Cir. 2004) (quoting 18 U.S.C. § 1961(5)). Here, the

Complaint’s lone conclusory RICO-related allegation falls short.

Simply put, the Complaint’s allegations do not “state a claim

to relief that is plausible on its face,” Iqbal, 556 U.S. at 678,

as it does not include sufficient factual allegations to “nudge[]

[its] claims across the line from conceivable to plausible,”

Twombly, 550 U.S. at 570. The Complaint also fails to comply with

pleading requirements set forth in Fed. R. Civ. P. 9(b) and Fed. R.

Civ. P. 9(f). Finally, individual Plaintiffs may not pursue pro se

4 The Complaint does not specify whether it intends to pursue

a claim under the federal RICO statute, 18 U.S.C. § 1961 et seq.,

or the North Carolina RICO statute, N.C. Gen. Stat. § 75D-1 et seq.

(See Docket Entry 3 at 7.) In any event, “the North Carolina RICO

statute mirrors the federal RICO statute,” R.J. Reynolds Tobacco

Co. v. SK Everhart Inc., No. 1:00CV260, 2003 WL 21788858, at *3

n.1 (M.D.N.C. July 31, 2003) (unpublished), and any state RICO

claim fails for the same reasons as does any federal RICO claim.

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litigation (or obtain pauper status) on behalf of the

organizational Plaintiff. See Smith ex rel. K.M.J. Int’l, Inc. v.

U.S. Gov’t, No. 1:10CV673, 2010 WL 3655643, at *1 (M.D.N.C. Sept.

13, 2010) (unpublished), recommendation adopted, 2013 WL 5462387

(Feb. 19, 2013) (unpublished).

CONCLUSION

The Court should dismiss Plaintiffs’ Complaint under 28 U.S.C.

§ 1915(e)(2)(B) for frivolousness and failure to state a claim.

IT IS THEREFORE ORDERED that Plaintiffs’ Applications (Docket

Entries 1, 2) are GRANTED for the limited purpose of considering

this recommendation of dismissal.

IT IS RECOMMENDED that this action be dismissed without

prejudice to Plaintiffs filing a new Complaint which corrects the

significant defects of the current Complaint.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 14, 2020

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