# ROBINSON v. BROOKS

> District Court, M.D. North Carolina · May 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10253452

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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
2
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
6
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

7
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253452. Public record. Not legal advice.