PELHAM v. WILSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHAEL PELHAM, )

)

Plaintiff, )

)

v. )

) Case No. 1:22CV155

CHERYL J. WILSON et al., )

)

Defendants. )

ORDER AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on a Complaint and Application for Leave to

Proceed In Forma Pauperis filed by Plaintiff Michael Pelham. For the reasons set out below,

this action should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).

“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 Correction, 64 F.3d 951, 953 (4th Cir. 1995) (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 in forma

pauperis 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 in forma pauperis statute provides that “the court shall

dismiss the case at any time if the court determines that – . . . (B) the action or appeal – (i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

1915(e)(2).

As to the first of these grounds for dismissal, the United States Supreme Court has

explained that “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 (internal quotations omitted).

As to the second grounds for dismissal, 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 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 Atlantic 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 recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id.1 In addition,

the Court may anticipate affirmative defenses which are clear on the face of the complaint.

Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983).

The third ground for dismissal under 28 U.S.C. § 1915(e)(2)(B) generally applies to

situations in which doctrines established by the United States Constitution or at common

law immunize governments and/or government personnel from liability for monetary

damages. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)

(discussing sovereign immunity of states and state officials under Eleventh Amendment);

Pierson v. Ray, 386 U.S. 547 (1967) (describing interrelationship between 42 U.S.C. § 1983

and common-law immunity doctrines, such as judicial, legislative, and prosecutorial

immunity).

In this case, Plaintiff asserts various claims against Judge Cheryl Wilson and Attorney

Del Brown, asserting claims under 42 U.S.C. § 1983 for discrimination, deprivation of rights,

due process, and cruel and unusual punishment. As the basis for this claim, Plaintiff alleges

that:

Cheryl J. Wilson had me put in Jail against my will because I ask for joint

custody of my child. Then Cheryl J. Wilson & State Attorney Del Brown

stated they knew me as a kidnapper in court denying me access to my child.

1 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) (applying Twombly standard in

dismissing pro se complaint).

Plaintiff contends that he was placed in jail for over two hours, and at his next court date the

Judge and State Attorney said he had kidnapped his children. He contends that his other

children were not allowed to accompany him into the courtroom, and that:

The State of Virginia has work with my daughter[‘s] mother [and] orchestrated

lies and slander to keep my child away from me. I have no record but I’m

being treated like a criminal in the Petersburg Courtroom. I have tried

contacted Mrs. Brown for visitation and never received a call back.

He also names Kentra Tatum as a Defendant, but does not identify Ms. Tatum or set out

any facts explaining the basis of his claims against her. As relief, he requests damages from

the City of Petersburg/State of Virginia, and:

Joint Physical & Legal custody

90-120 days quality days with my child (back pay days)

2 week rotation with halfway meet spot in Henderson, NC to pick up & drop off

Rotation on holidays and birthdays

Birthday Xmas & Thanksgiving I should get the next two/3 years since I was denied

To the extent that Plaintiff’s claims can be construed as a challenge to state child

custody determinations, the Court notes that federal courts are courts of limited jurisdiction

and generally abstain from hearing child custody and child support matters under the

domestic relations exception to federal court jurisdiction. Cantor v. Cohen, 442 F.3d 196,

202 (4th Cir. 2006); Cole v. Cole, 633 F.2d 1083, 1088 (4th Cir. 1988); Griessel v. Mobley,

554 F. Supp. 2d 597, 602 (M.D.N.C. 2008) (dismissing child custody and support claims

under the domestic relations exception to federal court jurisdiction set out in Ankenbrandt v.

Richards, 504 U.S. 689 (1992)); Johnson v. Byrd, No. 1:16CV1052, 2016 WL 6839410, at *9-

10 (M.D.N.C. Nov. 21, 2016) appeal dismissed, 693 Fed. App’x 219 (4th Cir. 2017)(per

curiam) (recognizing the domestic relations exception doctrine applies in cases premised on

federal question jurisdiction).

In addition, Plaintiff apparently seeks modification of a state custody order, and to

the extent that there are on-going state proceedings or appeals that may impact Plaintiff’s

custody claims, this Court should abstain from exercising its jurisdiction pursuant to

Younger v. Harris, 401 U.S. 37 (1971). The Younger abstention doctrine provides that

federal court abstention is proper when: (1) there is an on-going state court proceeding; (2)

the proceeding implicates important state interests; and (3) the plaintiff has an adequate

opportunity to present the federal claims in the state proceeding. See Wise v. Mecklenburg

Cty. Dep’t of Soc. Servs., No. 3:14-CV-71, 2014 WL 1091700 (W.D.N.C. Mar. 18, 2014)

(dismissing claims on child custody matters under Younger); C.C.S. v. Child Protective

Servs. of Orange County, No. 1:11CV81, 2011 WL 1325125, (M.D.N.C. Apr. 7, 2011)

(recommending dismissal of Plaintiff’s child custody and visitation claims under Younger).

Plaintiff may appeal to higher state courts and eventually to the United States Supreme Court

to the extent that he believes that his rights are being violated by the lower state courts.

Moreover, to the extent state proceedings have concluded and Plaintiff is asking this

Court to “exercise appellate jurisdiction” over a state court judgment, the Rooker-Feldman

doctrine bars lower federal courts from sitting in direct review of state court decisions.

Thana v. Bd. of License Comm’rs for Charles Cnty., Md., 827 F.3d 314, 321 (4th Cir. 2016)

(internal quotation marks omitted); see District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482-84 (1983). Thus, to the extent that Plaintiff is attempting to appeal or

obtain review of the state court decisions, such state court judgments are not subject to

review in this Court. See Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263

U.S. 413 (1923); Briggman v. Virginia Dep’t of Soc. Servs., 526 F. Supp. 2d 590, 600-01

(W.D. Va. 2007) (claim seeking court review of state court child support order barred by

Rooker-Feldman doctrine).

Finally, to the extent that Plaintiff asserts claims for damages against a judge, the

Court notes that state court judges have absolute judicial immunity for actions taken in their

judicial capacity. See Stump v. Sparkman, 435 U.S. 349 (1978) (state court judges are

absolutely immune from damages for acts performed in their judicial capacities); Pressly v.

Gregory, 831 F.2d 514, 517 (4th Cir.1987); Creed v. Wilson, No. 1:06CV397, 2008 WL

678655 (M.D.N.C. Mar. 12, 2008) (state court magistrate has judicial immunity for setting

bonds). Accordingly, Plaintiff fails to state a claim upon which relief may be with respect to

his claim for damages against Judge Wilson. To the extent Plaintiff asserts claims against

attorney Del Brown, there are no facts alleged that the attorney was acting under color of

state law. To the extent that attorney Brown is a private attorney, he would not be amenable

to suit under § 1983. Deas v. Potts, 547 F.2d 800, 800 (4th Cir. 1976); Hall v. Quillen, 631

F.2d 1154, 1155-56 (4th Cir. 1980). If attorney Brown is a prosecutor or an attorney for the

state, Plaintiff’s claims would be barred by prosecutorial immunity because prosecutors have

absolute immunity for their participation in the judicial process. Buckley v. Fitzsimmons,

509 U.S. 259, 269-70 (1993).

For all of these reasons, the Court concludes that the Complaint should be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B), without prejudice to Plaintiff filing a new claim on the

proper forms that sets out proper claims within the Court’s jurisdiction.

Plaintiff’s request to proceed in forma pauperis shall be granted for the sole purpose of

entering this Order and Recommendation.

IT IS THEREFORE ORDERED that in forma pauperis status be granted for the sole

purpose of entering this Order and Recommendation.

IT IS RECOMMENDED that this action be dismissed without prejudice pursuant to

28 U.S.C. § 1915(e)(2)(B).

This, the 25th day of April, 2022.

/s/ Joi Elizabeth Peake

United States Magistrate Judge