ALLEN v. MINE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

) 1:19cv750

v. )

)

ALICE NEECE MINE, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff’s Application to

Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed

in conjunction with his pro se Complaint (Docket Entry 2). For the

reasons that follow, the Court will grant Plaintiff’s instant

Application for the limited purpose of recommending dismissal of

this action under 28 U.S.C. § 1915(e)(2).

LEGAL STANDARD

“The federal in forma pauperis [‘IFP’] 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) (quoting Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with

filing fees, however, [is] not without its problems. Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants. In particular, litigants suing

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

obtaining relief against the administrative costs of bringing

suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in relevant

part, 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). Under the latter provision,

the Court must dismiss any complaint that “does not “contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (emphasis added) (internal citations omitted)

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

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

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recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id.!

Alternatively, “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.

BACKGROUND

Asserting claims under “42 U.S.C. §$ 1983” pursuant to “[t]he

sixth clause of the First Amendment [to petition the government of

a[] redress of grievances], the 14 [A]mendment[,] section [o]ne,

[] the 8** [A]mendment, third clause [cruel and unusual punishment],

' Although the 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 citations and quotation

marks 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).

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and the last clause of the [S]ixth [A]mendment . . .,” Plaintiff

initiated this action against five defendants: (1) “Alice Neece

Mine” (“Defendant Mine”); (2) “Peter Bolac” (“Defendant Bolac”);

(3) “Joe Cerone” (“Defendant Cerone”); (4) “Brian Oten” (“Defendant

Oten”); and (5) “[t]he North Carolina State Bar.” (Docket Entry 2

at 1-3 (some brackets in original).) The Complaint states the

following as the basis for asserting claims under Section 1983:

[Plaintiff’s c]onstitutional [r]ights were violated,

because of the stigma attached to [his] name due to being

categorized as a sex offender/child murderer when charges

were dismissed. [Plaintiff] was not allowed to have

competent legal representation, or petition the

government for a redress of grievances when attorney(s)

continuously denied [him] representation or intentionally

made it w[h]ere [Plaintiff] could not afford [their]

representation.[ F]urthermore, every issue [Plaintiff]

contacted the [North Carolina S]tate [B]ar abou[]t [ ]

w[as] disregarded and resolved in favor of the said

attorney. Because of this[, Plaintiff] ha[s] been

subjected to homelessness, employment discrimination,

slan[]der[, ] libel[,] and [ ] housing discrimination.

(Id. at 4.) The Complaint’s “Statement of Claim” states that “there

are three separate occasions [that Plaintiff is] making reference

to[]” and explains those instances as follows:

(1) 02/8/2017 [Plaintiff] faxed a[] Grievance to the

North Carolina Bar Association regarding the contract

[Plaintiff] signed with representatives of the Richardson

[L]aw Firm[, p]articularly[] Attorney Kris Reed Pope

[file # 17C0127]. . . .

(2) The district attorney[’s] office[,] particularly, Mr.

Roger Echols and Mr. Luke Bumm[,] committed what[’]s

known as legal malpractice and [Plaintiff’s] efforts to

file a[] grievance f[e]ll short and [he] never heard or

was informed r[e]garding the investigation with Mr.

Stephen C. [F]reedman.

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(3) Every [a]ttorney[’s] name and address [Plaintiff] got

from the attorney referral service fl[ell] short in the

department of actually hiring an attorney to represent

[Plaintiff ] because they either made their prices too

high or they had an opinion regarding [Plaintiff’s]

actual innocence or guilt.

(Id. at 5.) The Complaint requests “compensat[ion] for [] mental

anguish and punitive damages [in] the amount of $250,000.00.” (Id.

at 6.) It also incorporates numerous attachments (see id. at 8-

80), which include, inter alia, letters and grievance paperwork

sent to and from the North Carolina State Bar (id. at 8-11, 19-21,

29-34, 37-39, 46-47, 52-57), state court documents (id. at 12-17,

22-27, 40-45), and various newspaper articles (id. at 58-80).

DISCUSSION

I. The North Carolina State Bar

As an initial matter, the North Carolina State Bar does not

qualify as a “person” subject to suit under 42 U.S.C. § 1983. In

that regard, to state a claim for relief under Section 1983,

Plaintiff must assert “that [he was] deprived of a right secured by

the Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law.” American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) .°

2 Specifically, Section 1983 provides, in pertinent part,

that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

(continued...)

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Pursuant to statute, the North Carolina State Bar was “created

as an agency of the State of North Carolina.” N.C. Gen. Stat. §

84-15 (2018); see also Wolfenden v. Long, 5:09CV536, 2010 WL

2998804, at *6 (E.D.N.C. July 26, 2010) (unpublished) (describing

“[t]he State Bar [a]s an agency of the State of North Carolina”

(citing N.C. Gen. Stat. § 84-15)). “A State is not a person

against whom a [Section] 1983 claim for money damages might be

asserted. This same rule applies to state agencies and officials

acting in their official capacity.” Wolfenden, 2010 WL 2998804, at

*6 (internal citation omitted) (citing Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989)). Therefore, the Court should

dismiss all claims against the North Carolina State Bar.

II. Official Capacity Claims

Next, the Complaint indicates that it asserts official

capacity claims against Defendants Mine, Bolac, Cerone, and Oten.

(See Docket Entry 2 at 2-3.) Those claims fail for the same

reasons that claims fail against the North Carolina State Bar.

Although “state officials literally are persons[, ] a suit against

a state official in his or her official capacity is not a suit

2(...continued)

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

42 U.S.C. § 1983 (emphasis added).

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against the official but rather is a suit against the official’s

office.” Will, 491 U.S. at 71. “Because a state is not a ‘person’

under [Section] 1983, it follows that state officials acting in

their official capacities cannot be sued for damages under the

statute.” Wells v. Northam, No. 3:18CV00040, 2018 WL 2978026, at

*2 (W.D. Va. June 13, 2018) (unpublished) (citing Will, 491 U.S. at

71); accord Wolfenden, 2010 WL 2998804, at *6.

The Complaint states that (i) Defendant Mine serves as

“Executive Director,” (ii) Defendant Bolac serves as “Assistant

[E]xecutive [D]irector,” (iii) Defendant Cerone serves as

“Director,” and (iv) Defendant Oten serves in “Special Programs”

(Docket Entry 2 at 2-3.) The Complaint lists each Defendant’s

address as “217 East Edenton Street, Raleigh, NC 27611” (see id.).

Moreover, attached letters from the North Carolina State Bar list

“217 East Edenton Street, Raleigh, NC 27611” as the address of the

North Carolina State Bar. (See id. at 8, 29, 46, 47.)3 Therefore,

all defendants qualify as state officials and, as such, no claim

lies against them under Section 1983 for damages in their official

capacities.

3 In addition, two of the attached letters from the North

Carolina State Bar identify Defendant Oten as “Deputy Counsel” and

Defendant Bolac as “Trust Account Compliance Counsel.” (Docket

Entry 2 at 8, 29.)

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Accordingly, the Court should dismiss all official capacity

damages claims against Defendant Mine, Defendant Bolac, Defendant

Cerone, and Defendant Oten.

III. Individual Capacity Claims (and Official Capacity Claims for

Injunctive Relief

Beyond naming them as Defendants, the Complaint does not even

so much as mention Defendants Mine, Bolac, Cerone, and Oten. (See

id. at 4-7.) Thus, the Complaint fails to establish a Section 1983

claim against Defendant Mine, Defendant Bolac, Defendant Cerone,

and Defendant Oten due to the lack of factual matter suggesting

that any of those defendants violated Plaintiff’s constitutional

rights. See American Mfrs., 526 U.S. at 49 (requiring allegations

of a “depriv[ation] of a right secured by the Constitution or laws

of the United States” to state a Section 1983 claim); see also

Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir. 2016) (“Section

1983 is not itself a source of substantive rights, but rather

provides a method for vindicating federal constitutional and

statutory rights.”).

Put another way, nothing in the record indicates in any way

that Defendant Mine, Defendant Bolac, Defendant Cerone, and/or

Defendant Oten engaged in any violation of Plaintiff’s

constitutional rights as required to state a plausible Section 1983

claim. See Iqbal, 556 U.S. at 679 (“While legal conclusions can

provide the framework of a complaint, they must be supported by

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factual allegations”). The Court should therefore dismiss all

individual capacity claims alleged against Defendant Mine,

Defendant Bolac, Defendant Cerone, and Defendant Oten, as well as

any official capacity claim against them for injunctive relief, for

failure to state a claim.

IV. Frivolousness

As a final matter, even assuming the Complaint asserted claims

against proper defendants, its claims would ultimately fail as

frivolous. The Complaint appears to base its allegations that

Plaintiff’s “[c]onstitutional [r]ights were violated,” upon

assertions that “every issue [that Plaintiff] contacted the [S]tate

[B]ar abou[]t . . . w[as] disregarded and resolved in favor of the

said attorney.” (Docket Entry 2 at 4.) However, “‘a private

citizen lacks a judicially cognizable interest in the prosecution

or nonprosecution of another.’ This principle applies with equal

force to State Bar disciplinary proceedings.” Ladeairous v.

Goldsmith, No. 3:13cv673, 2015 WL 1787297, at *4 (E.D. Va. Apr. 15,

2015) (unpublished) (quoting Leeke v. Timmerman, 454 U.S. 83, 85-86

(1981) (internal citations omitted)), aff’d, 610 F. App’x 315 (4th

Cir. 2015). The Fourth Circuit has held that “[a plaintiff]

lack[s] any constitutional right to require a State Bar to process

a grievance or conduct an investigation.” Ross v. Baron, 493 F.

App’x 405, 406 (4th Cir. 2012). Further, because the Complaint’s

claims “rest upon an indisputably meritless legal theory,”

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Ladeairous, 2015 WL 1787297, at *4 (internal quotation marks

omitted), and “are without an arguable basis in law,” Ross, 493 F.

App’x at 406, they fail as frivolous.

CONCLUSION

In sum, the North Carolina State Bar does not qualify as a

“person” subject to suit under Section 1983, Plaintiff’s claims for

damages against Defendant Mine, Defendant Bolac, Defendant Cerone,

and Defendant Oten in their official capacities constitute claims

against the State, not a “person” as required under Section 1983,

and Plaintiff has failed to allege a plausible claim for relief

against Defendant Mine, Defendant Bolac, Defendant Cerone, and

Defendant Oten in their individual capacities, or for purposes of

injunctive relief in their official capacities. Even assuming the

Complaint asserted claims against proper defendants, it would

ultimately fail as frivolous for lack of any constitutional right

to require a State Bar to “process a grievance or conduct an

investigation,” Ross, 493 F. App’x at 406.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

IT IS RECOMMENDED that this action be dismissed for failure to

state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), or,

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alternatively, be dismissed as frivolous under 28 U.S.C. §

1915(e)(2)(B)(i).

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 4, 2019

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