Elmore v. Mecklenburg County Courthouse

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL CASE NO. 3:23-cv-00036-MR

ESTATE OF OCTAVIOUS EDWARD )

ELMORE © and S.J.I., )

)

Plaintiffs, )

)

vs. )

)

MECKLENBURG COUNTY )

COURTHOUSE, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on initial review of the pro se

Complaint.1 [Doc. 1]. Also pending is the Request for Appointment of

Counsel filed by Octavious Edward Elmore.2 [Doc. 5]. Plaintiff Elmore is

proceeding in forma pauperis. [Doc. 9].

1 Plaintiff Elmore neglected to sign the Complaint, although an attached “Affidavit” is

signed. [See Doc. 1 at 18, 20; Doc. 1-1]. Plaintiff Elmore must sign his filings in future;

any filings that are unsigned or otherwise fail to comply with the Court’s orders or the

applicable procedural rules will be stricken. [See, e.g., Doc. 3 (Order of Instructions)].

2 The Request is liberally construed as a Motion. Plaintiff Elmore was previously instructed

that only motions will be ruled on by the Court. [See Doc. 3]. In future, any request for

relief that is not contained in a “Motion” will be disregarded and may be stricken.

I. BACKGROUND

Octavious Edward Elmore is a pretrial detainee at the Mecklenburg

County Jail (MCJ) on multiple criminal charges that are pending in

Mecklenburg County District and Superior Courts including violations of

domestic violence protective orders, interfering with an electronic monitoring

device, felony stalking, breaking or entering with intent to terrorize or injure,

assault on a female, and possession of a firearm by a felon.3 He purports to

file the instant action pursuant to 42 U.S.C. § 1983 and North Carolina law

on behalf of himself as “Estate of Octavious Edward Elmore ©” and his minor

daughter, S.J.I.4 [Doc. 1].

He names as Defendants:5 the Mecklenburg County Courthouse; the

Charlotte Mecklenburg Police Department (CMPD); Johnny Jennings, the

CMPD Chief; Lisa Crump McDaniel, a CMPD deputy; the Mecklenburg

County Sheriff’s Department (MCSD); Gary McFadden, the Mecklenburg

3 See, e.g., Case Nos. 20CRS205530, 20CRS205531, 20CRS5533, 20CR230687,

21CRS002203, 21CRS002204, 22CR349438.

4 Plaintiff Elmore is instructed to refer the child by her initials rather than by her full name.

Any filing that fails to comply with this directive may be stricken. The Court will instruct

the Clerk to redact the documents that have been filed in this case and to replace her

name with the initials S.J.I. in CM-ECF and any other records that are visible to the public.

5 All of the Defendants are named in their official and individual capacities except for the

Charlotte Mecklenburg Police Department, which is sued only in its official capacity; and

Jasmine Ivey, who is sued only in her individual capacity.

County Sheriff; Spencer Merriweather III, the Mecklenburg County District

Attorney; North Carolina Legal Aid;6 Katie McCabee, an attorney for NC

Legal Aid; and Jasmine Alicia Ivey, a “private citizen” and the mother of

Plaintiff’s child who obtained domestic violence protective orders against

him. [Doc. 1 at 4].

He asserts claims for, inter alia: violations of various federal

constitutional rights,7 civil conspiracy, actual and constructive fraud, civil

obstruction of justice, respondeat superior, alienation of affection, and

negligent hiring, retention, and training. The Plaintiff alleges that Ivey

fraudulently obtained restraining orders against him; that various Defendants

conspired to deprive him of obtaining custody of his child; that he was

framed, repeatedly arrested for violating the conditions of his release, and

falsely charged with criminal offenses; that he “eluded” law enforcement for

two or three years; and that while there was a warrant outstanding for his

arrest, he went to Ivey’s house, grabbed and restrained her, and was

arrested. [See id. at 10; Doc. 1-1 at 4]. He also complains about the

6 Plaintiff Elmore also refers to this Defendant as “North Carolina Prison Legal Aid.” [Doc.

1 at 1].

7 Plaintiff Elmore cites the Fourth and Fourteenth Amendments, and refers to inter alia

due process violations, malicious prosecution, and violation of access to the courts.

conditions of his confinement at MCJ.8 [See Doc. 1 at 13 (addressing access

to the courts, etc)]. For injury, he claims irreparable harm and “torture, cruel

& unusual punishment, mental & emotional distress, verbal abuse from state

officials, harassment on jobs, public humiliation & slander, isolation from a

God given right to be in child’s life, manipulation, alienation, deception,

deprived of forming a bond with [his daughter], loss of current and future

employment wages, the threat of constant persecution or even death at the

hands of Defendant McDaniel due to the escalation of events and handicaps

placed on Plaintiff’s life & wellbeing.” [Doc. 1 at 14-15; Doc. 1-1 at 2-4]. He

seeks $14 million in compensatory damages and $6 million in punitive

damage. [Doc. 1 at 17-19].

II. STANDARD OF REVIEW

Because Plaintiff Elmore is proceeding in forma pauperis, the Court

must review the Complaint to determine whether it is subject to dismissal on

the grounds that it is “frivolous or malicious [or] fails to state a claim on which

relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A

the Court must conduct an initial review and identify and dismiss the

8 It appears that it may not be appropriate for all of the Plaintiff’s claims to proceed in a

single lawsuit. See generally Fed. R. Civ. P. 20; George v. Smith, 507 F.3d 605, 607 (7th

Cir. 2007) (“Unrelated claims against different defendants belong in different suits” so as

to prevent prisoners from dodging the fee payment or three-strikes provisions of the

Prison Litigation Reform Act.).

complaint, or any portion of the complaint, if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted; or seeks monetary relief

from a defendant who is immune to such relief. 28 U.S.C. § 1915A.

In its frivolity review, this Court must determine whether a complaint

raises an indisputably meritless legal theory or is founded upon clearly

baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his Complaint which

set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.

Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

Plaintiff Elmore purports to sue on behalf of himself as an “Estate” and

under his own copyrighted name, and on behalf of his minor child.

As a pro se inmate, Plaintiff Elmore is not qualified to prosecute a class

action or assert a claim on behalf of others. See Myers v. Loudoun Cnty.

Pub. Schls., 418 F.3d 395, 400 (4th Cir. 2005) (“An individual unquestionably

has the right to litigate his own claims in federal court.... The right to litigate

for oneself, however, does not create a coordinate right to litigate for others”);

Hummer v. Dalton, 657 F.2d 621, 625 (4th Cir. 1981) (prisoner’s suit is

“confined to redress for violations of his own personal rights and not one by

him as knight-errant for all prisoners”); Oxendine v. Williams, 509 F.2d 1405,

1407 (4th Cir. 1975) (“[I]t is plain error to permit [an] imprisoned litigant who

is unassisted by counsel to represent his fellow inmates in a class action.”).

Therefore, to the extent that Plaintiff Elmore has attempted to assert claims

on behalf of S.J.I., they cannot proceed, and S.J.I. is dismissed as a Plaintiff.

Plaintiff Elmore attempts to sue on his own behalf as an “Estate” and

under his copyrighted name. This appears to be tactics similar to “sovereign

citizen” litigants seeking to challenge the court’s jurisdiction over them and

their criminal convictions. “[S]overeign citizens are a loosely affiliated group

who believe that the state and federal governments lack constitutional

legitimacy and therefore have no authority to regulate their behavior.” United

States v. Ulloa, 511 F. App’x. 105, 106 n.1 (2d Cir. 2013). However, such

sovereign citizen claims lack merit and are frivolous. See United States v.

White, 480 F. App’x 193, 195 (4th Cir. 2012) (finding “no merit in [the] claim

that the district court lacked jurisdiction over his prosecution because his

ancestors had been illegally seized and brought to the United States”);

United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (noting that

“[r]egardless of an individual’s claimed status ... as a ‘sovereign citizen’ ...

that person is not beyond the jurisdiction of the courts. These theories

should be rejected summarily ...”); United States v. Jagim, 978 F.2d 1032,

1036 (8th Cir. 1992) (rejecting defendant’s claim that he was outside the

court’s jurisdiction as “completely without merit” and “patently frivolous”).

Accordingly, to the extent that Plaintiff Elmore attempts to sue on behalf of

his own copyrighted name and/or estate, this action cannot proceed. The

Complaint fails to identify a Plaintiff who can prosecute this action.

Therefore, it fails initial review and it will be dismissed.

The Complaint suffers from additional deficiencies that are too

numerous to separately address at this juncture. For instance, the Complaint

is largely conclusory and contains scattershot, unsupported allegations that

are so vague and conclusory that they fail to satisfy the most basic pleading

requirements. See Fed. R. Civ. P. 8(a)(2) (requiring a “short and plain

statement of the claim showing that the pleader is entitled to relief”); Simpson

v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (conclusory allegations,

unsupported by specific allegations of material fact are not sufficient);

Dickson v. Microsoft Corp., 309 F.3d 193, 201-02 (4th Cir. 2002) (a pleader

must allege facts, directly or indirectly, that support each element of the

claim). Should Plaintiff Elmore choose to amend the Complaint, he must

allege sufficient facts to plausibly state how each Defendant is a “person”

under § 1983 and how each allegedly violated his rights under the color of

state law. See generally Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

49-50 (1999) (to state a claim under § 1983, a plaintiff must allege 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”); DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999) (if the defendant

is not a state actor, there must be a “sufficiently close relationship with state

actors such that a court would conclude that the non-state actor is engaged

in the state’s actions”).

To the extent that Plaintiff Elmore seeks to challenge his pretrial

custody and his pending criminal charges,9 or the North Carolina courts’ child

custody decisions,10 he may not do so in this action. See generally Preiser

v. Rodriguez, 411 U.S. 475, 500 (1973) (when a state prisoner seeks

immediate release or a speedier release from imprisonment, his sole federal

remedy is a writ of habeas corpus); United States v. Tootle, 65 F.3d 381, 383

(4th Cir. 1995) (pretrial petitions for writ of habeas corpus are properly

brought under 28 U.S.C. § 2241); Younger v. Harris, 401 U.S. 37, 53 (1971)

9 The Clerk will be instructed to provide Plaintiff Elmore with a blank § 2241 habeas form.

The Court does not make any determinations about the potential merit or procedural

viability of such an action.

10 Moreover, any dispute about child custody appears to be moot, as the Plaintiff is

currently incarcerated.

(a federal court should not interfere with ongoing state criminal proceedings

except in extraordinary circumstances); Cantor v. Cohen, 442 F.3d 196, 202

(4th Cir. 2006) (“federal courts are courts of limited jurisdiction and generally

abstain from hearing child custody matters” because domestic relations

issues are traditionally within the province of the state courts); Davani v. Va.

Dep’t of Transp., 434 F.3d 712 (4th Cir. 2006) (describing the Rooker-

Feldman doctrine, under which a state-court loser is prohibited from

attempting to overturn a state court judgment in federal court) (citing Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983)).

Finally, Plaintiff Elmore requests the appointment of counsel. [Doc. 5].

He claims inter alia that: the claims in this case are more severe than “normal

circumstances;” the Plaintiff is in the Defendants’ custody despite “more than

mere conflict of interests;” Sheriff McFadden is denying the Plaintiff the

opportunity to notarize his legal documents, or obtain copies of privileged

legal documents, obtain copies of grievances; and Sheriff McFadden and

others may jeopardize his ability to timely file motions and pursue his claims.

[Doc. 5 at 1-2]. There is no absolute right to the appointment of counsel in

civil actions such as this one. Therefore, a plaintiff must present “exceptional

circumstances” in order to require the Court to seek the assistance of a

private attorney for a plaintiff who is unable to afford counsel. Miller v.

Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Plaintiff Elmore has failed to

demonstrate the existence of exceptional circumstances that would warrant

the appointment of counsel and this Motion will be denied.

IV. CONCLUSION

In sum, the Complaint fails to identify any Plaintiff who can litigate this

action and it is dismissed without prejudice as frivolous and for failure to state

a claim upon which relief can be granted pursuant to 28 U.S.C. §§

1915(e)(2)(B)(i)-(ii) and 1915A. Plaintiff Elmore’s request for the appointment

of counsel is denied.

The Court will allow Plaintiff Elmore thirty (30) days to amend the

Complaint, if he so chooses, to properly state a claim upon which relief can

be granted in accordance with the terms of this Order. Any amended

complaint will be subject to all timeliness and procedural requirements and

will supersede the Complaint. Piecemeal amendment will not be permitted.

Should Plaintiff fail to timely amend his Complaint in accordance with this

Order, the Court will dismiss this action without further notice.

ORDER

IT IS, THEREFORE, ORDERED that:

1. The Complaint [Doc. 1] is DISMISSED WITHOUT PREJUDICE

as frivolous and for failure to state a claim upon which relief can

be granted.

2. Plaintiff Elmore shall have thirty (30) days in which to amend the

Complaint in accordance with the terms of this Order. If Plaintiff

Elmore fails to so amend his Complaint, the matter will be

dismissed without further notice.

3. Plaintiff Elmore’s Request for Appointment of Counsel [Doc. 5]

is construed as a Motion and it is DENIED.

The Clerk is respectfully instructed to redact the child Plaintiff's name

from the documents that have been filed in this case and to replace her

initials with “S.J.I.” in CM-ECF and any other records that are visible to the

public, and to mail Plaintiff Elmore blank § 1983 and § 2241 forms and a

copy of this Order.

IT IS SO ORDERED. Signed: April 16, 2023

Martifi Reidinger ee

Chief United States District Judge AS

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