Das v. State of NC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CASE NO. 3:22-CV-00561-FDW-DCK

KALISHWAR DAS, )

)

Plaintiff, )

)

v. ) ORDER

)

MECKLENBURG COUNTY SHERIFF )

OFFICE/DEPARTMENT and )

MECKLENBURG COUNTY SUPERIOR )

COURT ADMINISTRATION, )

)

Defendants. )

)

THIS MATTER is before the Court on several Motions to Dismiss Plaintiff’s Complaint

(Doc. Nos. 20, 31, 36). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court

issued notices (Doc. Nos. 23, 33) to Plaintiff, who appears pro se, advising him of the burden he

carries in responding to Defendants’ motions. All motions are fully briefed. (Doc Nos. 20, 24, 31,

37, 40, 42). Additionally, Plaintiff has filed a Motion to Intervene. (Doc. No. 39). Upon review by

the Court, for the reasons below, the Motion to Dismiss the Complaint (Doc. No. 20) is DENIED

AS MOOT, the Motions to Dismiss the Amended Complaint (Doc. Nos. 31, 36) are GRANTED,

and the Motion to Intervene (Doc. No. 39) is DENIED.

I. BACKGROUND

Plaintiff is the owner of Vibha Mens Clothing, LLC (“VMC, LLC”), and was the “lease

guarantor of ‘MiniMart’ (dba).” (Doc. No. 29, p. 2). Plaintiff signed as a lease guarantor on May

14, 2018, after purchasing a business. (Doc. No. 29, p. 9). At some point, the store manager

embezzled money and inventory, and Plaintiff failed to pay the rent. (Id.). Thereafter, in January

2019, the landlord sued Plaintiff’s business in “Magistrate court”, case number 19 CVM 4013.

(Id.).

On February 26, 2019, an unknown judicial official conducted a summary ejectment

hearing, wherein the landlord was granted a writ of possession. (Doc. No. 29, p. 9–10). At an

unspecified time, the landlord was granted a writ of execution. (Id.). Plaintiff did not contest “the

situation.” (Doc. No. 29, p. 10).

Plaintiff then demanded the landlord return his personal and business assets so he “could

be able to pay what he owed as per lease.” (Id.). The landlord in turn sued VMC, LLC and Plaintiff,

and Plaintiff counterclaimed for the return of the seized properties. (Id.).

During a court hearing before Judge Hoover on August 17, 2020, Judge Hoover disallowed

Plaintiff to represent VMC, LLC and issued judicial ruling on disputed matters. (Doc. No 29, p.

10–11). Plaintiff also alleges that Judge Hoover had difficulty understanding Plaintiff’s

pronunciation or dialect and that “someone near” Judge Hoover giggled when Plaintiff requested

his son interpret his answers for the court or for the court to arrange for an interpreter. (Doc. No.

29, p. 11). Plaintiff believes this unknown individual was mocking him and that Judge Hoover

ignored this. (Id.). Plaintiff contends that Judge Hoover issued “an order to separate the Plaintiff’s

son from him, despite the son being a witness in the case,” instructed the Sheriff to whisper threats

to Plaintiff, and attempted to coerce Plaintiff into compromising with the landlord. (Doc. No. 29,

p. 11–12).

Plaintiff alleges Judge Hoover “suppress[ed] the truth and justice against the Plaintiff,” and

issued an order in favor of the landlord. (Doc. No. 29, p. 12). Plaintiff then alleges Judge Hoover,

when questioned about the possibility of Plaintiff appealing, “threatened” Plaintiff, “vowing to

ensure no court vacates his order.” (Id.).

On August 20, 2020, Plaintiff filed suit against the landlord in Mecklenburg County. (Id.).

Plaintiff, through an attorney, also filed a motion for a new trial, which was denied. (Doc. No. 29,

p. 12–13). Plaintiff claims Judge Hoover “intentionally restricted the Plaintiff’s access to the

order.” (Id.).

On October 11, 2021, in a hearing before Judge George Bell, Plaintiff alleges he was

“deprived . . . of attending the hearing . . . .” (Doc. No. 29, p. 13). Thereafter, Plaintiff’s multiple

appeals were unsuccessful. (Id.).

On October 18, 2022, the pro se Plaintiff filed his Complaint against Mecklenburg County.

(Doc. No. 1). On October 21, 2022, Plaintiff filed his First Amended Complaint, again against

Mecklenburg County, but causing summons to be issued to the State of North Carolina. (Doc. No.

3). On November 1, 2023, Plaintiff filed documentation indicating that he served the State of North

Carolina with the summons. (Doc. No. 5). Plaintiff moved for default judgment against the State

of North Carolina on December 16, 2022. (Doc. No. 6). On July 18, 2023, this Court denied

Plaintiff’s Motion for Default Judgment, finding Plaintiff did not properly serve the State of North

Carolina. (Doc. No. 10).

On July 24, 2023, this Court allowed Plaintiff to file a Second Amended Complaint, this

time naming the State of North Carolina. (Doc. Nos. 14, 15). Plaintiff filed an affidavit of service,

affirming the Second Amended Complaint was served on the State of North Carolina, contending

service was complete on the date of mailing. (Doc. No. 17). On August 16, 2023, Plaintiff again

filed a Motion for Default. (Doc. No. 18). On August 17, 2023, the State of North Carolina timely

moved to dismiss Plaintiff’s Second Amended Complaint and filed a Response in Opposition to

the Motion for Default. (Doc. Nos. 19, 20, 21).

On August 30, 2023, Plaintiff filed a document entitled “Notice of Defendant’s Name

Shifts, Complying Roseboro Order” and his Third Amended Complaint, this time naming

“Mecklenburg County Sheriff Office/Department” and “Mecklenburg County Superior Court

Administration” as defendants. (Doc. Nos. 25, 26). Based upon these filings, this Court terminated

Defendant State of North Carolina as a defendant on August 30, 2023. Also on August 30, 2023,

Plaintiff caused to be issued summons addressed to “Hon. Judge Donnie Hoover,” “Mecklenburg

County Superior Court Administration,” “Mecklenburg County Magistrate,” “Hon. Judge George

Bell,” as well as “Mecklenburg County Sheriff Office/Department.” (Doc. No. 27). On September

8, 2023, Plaintiff filed documentation indicating proof of service on “Mecklenburg County

Superior Court Administration” and “Mecklenburg County Sheriff Office”. (Doc. No. 28).

On September 15, 2023, Plaintiff filed a Fourth Amended Complaint. (Doc. No. 29). In the

Fourth Amended Complaint, Plaintiff states that “[t]his complaint is being re-filed due to refusal

by the defendants to accept the Complaint, which was initially served on August 31, 2023; through

USPS Certified mail with return receipt requested.” (Doc. No. 29, p. 1). Also on September 15,

2023, summons were again issued to “Mecklenburg County Superior Court Administration” and

“Mecklenburg County Sheriff Office/Department.” (Doc. No. 30).

II. STANDARD OF REVIEW

A. Amendment of Complaint

The amendment of pleadings is governed by Rule 15 of the Federal Rules of Civil

Procedure. In pertinent part, Rule 15 provides:

(a) . . . A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days

after service of a responsive pleading or 21 days after service of a motion

under Rule 12(b), (e), or (f), whichever is earlier.

Fed. R. Civ. P. 15(a)(1) (emphasis added). Where a party seeks to amend his complaint more than

once as a matter of course, Rule 15(a)(2) permits amendment only with the defendant's written

consent or the court’s leave. However, Rule 15(a)’s “permissive standard” provides that such leave

should be freely given by the court “when justice so requires.” Ohio Valley Envtl. Coal., Inc. v.

Hernshaw Partners, LLC, 984 F.Supp.2d 589, 592 (S.D.W.Va. 2013) (quoting Fed. R. Civ. P.

15(a)(2)). “This liberal rule gives effect to the federal policy in favor of resolving cases on their

merits instead of disposing of them on technicalities.” Laber v. Harvey, 438 F.3d 404, 426 (4th

Cir. 2006) (en banc); see Conley v. Gibson, 355 U.S. 41, 48 (1957).

Upholding the letter and the spirit of this rule, “leave to amend a pleading should be denied

only when the amendment would be prejudicial to the opposing party, there has been bad faith on

the part of the moving party, or the amendment would be futile.” Edwards v. City of Goldsboro,

178 F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th

Cir. 1986)); see also Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).

The grant or denial of a motion for leave to amend a pleading is committed to the sound discretion

of the trial court. See Foman v. Davis, 371 U.S. 178, 182 (1962); Equal Rights Ctr., 602 F.3d at

603.

B. Motion to Dismiss for Lack of Jurisdiction

This Court must dismiss all or part of a complaint over which it lacks subject matter and

personal jurisdiction. FED. R. CIV. P. 12(b)(1)–(2). This threshold question shall be addressed by

the court before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d

417, 422 (4th Cir. 1999). Plaintiff has the burden of proving that jurisdiction exists. Richmond,

Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A motion to dismiss based on sovereign immunity is a jurisdictional issue. Whether

sovereign immunity is grounded in a lack of subject matter jurisdiction or personal jurisdiction is

unsettled in North Carolina. See M Series Rebuild, LLC v. Town of Mount Pleasant, Inc., 222

N.C. App. 59, 59 (2012). Likewise, “Eleventh Amendment immunity has attributes of both

subject-matter and personal jurisdiction.” Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 480 (4th Cir. 2005).

C. Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when the pleading party

fails to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the legal “sufficiency of a complaint” but “does

not resolve contests surrounding the facts, the merits of a claim, or the applicability of

defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); accord E. Shore

Mkts, Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000). A complaint attacked by

a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts to state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Robinson v. American Honda Motor Co.,

Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. The Supreme Court has

also opined:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Specific facts are not

necessary; the statement need only “give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” In addition, when ruling on a

defendant’s motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (alteration in original) (internal citations omitted)

(quoting Twombly, 550 U.S. at 555-56).

“When considering a motion to dismiss involving pro se parties, the court construes the

pleadings liberally to ensure that valid claims do not fail merely for lack of legal specificity.”

Brown v. Charlotte Rentals LLC, No. 3:15-cv-0043-FDW-DCK, 2015 WL 4557368, at *2

(W.D.N.C. July 28, 2015) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). At the

same time, however, the Court should not “assume the role of advocate for the pro se plaintiff.”

Gordon, 574 F.2d at 1151 (quotation omitted).

III. ANALYSIS

A. Plaintiff’s Second, Third, and Fourth Amended Complaints

The Court must first determine which of Plaintiff’s Complaints, if any, are appropriately

before the Court. Plaintiff initiated suit by filing his original complaint on October 18, 2022, (Doc.

No. 1). On October 21, 2022, Plaintiff filed his first Amended Complaint. (Doc. No. 3). The Court

finds the First Amended Complaint to be timely and appropriately filed pursuant to Fed. R. Civ.

P. 15(a)(1) (“A party may amend its pleading once as a matter of course within: (A) 21 days after

serving it . . . ”).

Since Plaintiff had already exhausted his “once as a matter of course” opportunity,

Plaintiff’s subsequent filings of amended complaints require approval by the Court absent consent

by Defendants. Prior to the filing of Plaintiff’s Second Amended Complaint, (Doc. No. 15), such

request was sought through Plaintiff’s Motion to Amend (Doc. No. 11) and subsequently granted

by Magistrate Judge David Keesler. (Doc. No. 12). Therefore, Plaintiff’s Second Amended

Complaint is also appropriately filed.

On August 30, 2023, Plaintiff filed his Third Amended Complaint. (Doc. No. 26). Then,

on September 15, 2023, Plaintiff filed his Fourth Amended Complaint. (Doc. No. 29). Notably,

neither Plaintiff’s Third or Fourth Amended Complaint was consented to by Defendants nor

approved by the Court. Nevertheless, this Court finds it appropriate under this record and given

Plaintiff’s pro se status, to construe the filing of the Fourth Amended Complaint1 as a motion to

amend the Second Amended Complaint. See Stanfield v. Wigger, No. 2:14-CV-00839-PMD, 2015

WL 58077, at *2 (D.S.C. Jan. 5, 2015) (“[T]he Court will construe Plaintiff's Second Amendment

to Complaint as a Motion to Amend his Amended Complaint.”); Carter v. Montgomery Cty.

Recreation Dep't et al., No. DKC 13-2384, 2013 WL 6858873, at *3 (D. Md. Dec. 27, 2013)

(“Plaintiff did not formally seek leave from the court, nor did he seek Defendants' consent prior to

filing. The court will treat these amended complaints as motions to amend and deny the motions.

Rule 15 encourages leniency, a value especially salient when the filer is pro se.”).

In considering the construed motion to amend, the Court finds the unique nature of this

record and Plaintiff’s pro se pleadings favor permitting the amendment a fourth time. The Court

specifically finds the Fourth Amended Complaint attempts to change the named Defendants to

“adher[e] to the fact that ‘State is the executive branch of the government and it cannot be named

as defendant to represent the employees of the judicial branch in a lawsuit.’” (Doc. No. 25, p. 1).

Additionally, though reworded to include more specificity as to the new Defendants, the

allegations are substantially the same. Moreover, Defendant Mecklenburg County Superior Court

Administration and Defendant Mecklenburg County Sheriff Office have both filed motions

1 The Court is not ignoring the Third Amended Complaint, (Doc. No. 26), in its analysis. Rather, upon review of the

Fourth Amended Complaint, it is merely a refiling of Plaintiff’s Third Amended Complaint. No changes were made

to the Fourth Amended Complaint, aside from Plaintiff including introductory language explaining to the Court the

purpose of the refiling was to “serve the defendant using an alternative method to ensure that their rights are upheld

and the case can proceed justly.” (Doc. No. 29, p. 1). While the Court is not ruling on the appropriateness of this filing

as a form of service, the Court provides this explanation for context as to the substantive immateriality between the

third and fourth amended complaints.

specifically addressing the Fourth Amended Complaint. (Doc. Nos. 31, 36). Accordingly, allowing

the amendment at this juncture does not prejudice any party; and nothing in the current record

before the Court indicates bad faith or futility of amendment. Edwards, 178 F.3d at 242; see also

Ward Electronics Service, Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987).

Permitting this Fourth Amended Complaint, however, presents a separate issue for

Defendant State of North Carolina who had previously moved to dismiss the Second Amended

Complaint. “As a general rule, an amended pleading ordinarily supersedes the original and renders

it of no legal effect.” Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001); see also

Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (noting that the court

should rule on a motion for leave to amend a complaint before deciding a motion to dismiss that

same complaint because allowing leave to amend renders the motion to dismiss moot). Under

these principles, and in light of the State of North Carolina being terminated as a defendant, the

motion to dismiss Plaintiff’s second complaint filed by State of North Carolina (Doc. No. 20) is

DENIED AS MOOT.

B. Motions to Dismiss claims against Defendants Mecklenburg County Superior Court

Administration & Mecklenburg County Sheriff Office

Defendants Mecklenburg County Superior Court Administration and Mecklenburg County

Sheriff Office rely on Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing Plaintiff fails

to sufficiently plead any plausible claim against them. (Doc. Nos. 31, 36). To successfully allege

a violation of 42 U.S.C. § 1983, Plaintiff must show that a “person” acting under the color of state

law violated his constitutional rights. See also 42 U.S.C. § 1985(1) (requiring a plaintiff to show,

inter alia, a conspiracy of two or more “persons”). “The capacity of a governmental body to be

sued in the federal courts is governed by the law of the state in which the district court is held.”

Avery v. Burke Cnty., 660 F.2d 111, 114 (4th Cir. 1981) (citing Fed. R. Civ. P. 17(b)); see also

Smith v. Munday, 848 F.3d 248, 256–57 (4th Cir. 2017). In North Carolina, in the absence of a

statute, “the capacity to be sued exists only in persons in being.” McPherson v. First & Citizens

Nat. Bank of Elizabeth City, 81 S.E.2d 386, 397 (N.C. 1954). Therefore, departments of

municipalities are not susceptible to suit without statutory authorization. See Martin v.

Mecklenburg Cnty. Park & Recreation Dep't, 2006 WL 3780418 at *2 (W.D.N.C. Dec. 20, 2006)

(finding departments of cities cannot be sued alone).

As an initial matter, the “Mecklenburg County Superior Court Administration” is not a

legal entity in existence and is not a person capable of being sued under § 1983. Additionally, there

is no statute in North Carolina that authorizes suit against a county’s sheriff’s department. Parker

v. Bladen Cnty., 583 F. Supp. 2d 736 (E.D.N.C. 2008) (North Carolina statute establishes that “a

county is a legal entity which may be sued,” but “there is no corresponding statute authorizing suit

against a North Carolina county’s sheriff’s department”.); Landry v. North Carolina, 2011 WL

3683231, report and recommendation adopted, 2011 WL 3682788 (W.D.N.C. Aug. 23, 2011)

(holding North Carolina sheriff's departments are not legal entities under North Carolina law

capable of being sued). Plaintiff fails to contradict the case law in the federal courts in North

Carolina or present any authority indicating that the Mecklenburg County Sheriff Office is an

entity with the capacity to be sued. Therefore, all claims against Defendant Mecklenburg County

Sheriff’s Office must be dismissed.

While not specifically plead, dismissal is still appropriate under a theory of municipality

liability. A municipality or other local government entity may be held liable under § 1983 only

“where the constitutionally offensive acts of [ ] employees are taken in furtherance of some

municipal ‘policy or custom.’” Milligan v. City of Newport News, 743 F.2d 227, 229 (4th Cir.

1984) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)); see also Wolf v. Fauquier

Cty. Bd. of Supervisors, 555 F.3d 311, 321 (4th Cir. 2009) (“A county may be found liable under

42 U.S.C. § 1983 only ‘when execution of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts

the injury.’”) (citations omitted). This is true even under the doctrine of respondeat superior, which

is generally inapplicable to § 1983 suits, such that an employer or supervisor is not liable for the

acts of employees, absent official policy or custom resulting in an illegal action. Monell, 436 U.S.

at 694–95.

Here, Plaintiff fails to sufficiently allege any policy or custom—whether express or

adopted through ratification—that could provide a basis for municipal liability under any of his

§ 1983 claims against the Mecklenburg County Sheriff Office. Notably, Plaintiff’s pleadings

barely mention the Mecklenburg County Sheriff Office apart from the allegations that the Sheriff’s

Office “intentionally converted . . . a ‘writ of possession’ to a ‘writ of execution’”, (Doc. No. 29,

p. 5), and “the Sheriff [] whispering threats to the Plaintiff”, (Doc. No. 29, p. 11). Furthermore, the

allegations do not contend that the actions are based on official policy or custom.

To the extent Plaintiff recategorizes his allegations against the Sheriff’s Office in his

response as a failure to properly train, this too fails. Generally, an allegation of a failure to train

can be the basis for liability under § 1983 if the failure to train amounts to deliberate indifference

to an individual’s rights and the lack of training is closely related to the ultimate injury. See City

of Canton v. Harris, 489 U.S. 378, 387, 391 (1989). To meet the “stringent standard of fault”

created by the deliberate indifference requirement, “a plaintiff must identify a ‘specific deficiency

rather than general laxness or ineffectiveness in training.’” Brown v. Cobb, No. 3:17-cv-00627,

2018 WL 6304405, at *3 (E.D. Va. Dec. 3, 2018) (first quoting Bd. of Cty. Comm’rs v. Brown,

520 U.S. 397, 410 (1997), then quoting Spell v. McDaniel, 824 F.2d 1380, 1390 (4th Cir. 1987)).

Furthermore, a plaintiff must show that the municipality disregarded a known or obvious

consequence of its decision. Brown, 520 U.S. at 410. A plaintiff can allege deliberate indifference

by pleading facts to indicate that policymakers knew about and acquiesced in “a pattern of

constitutional violations.” Mitchell, 308 F. Supp. 2d 682, 704 (E.D. Va. 2004).

Here, Plaintiff has not alleged a pattern among the Mecklenburg County Sheriff Office of

converting writs of possession into writs of execution or mishandling assets during the eviction

process. Rather, Plaintiff alleges only this one, single instance of conduct which cannot constitute

a pattern sufficient to support a plausible Monell claim. Without alleging a pattern of constitutional

violation, Plaintiff has not met the deliberate indifference standard required to support a claim of

inadequate training or supervision. For these reasons, the claims against the Mecklenburg County

Superior Court Administration and Mecklenburg County Sheriff’s Office are DISMISSED.

C. Motion to Dismiss claims against Defendants Mecklenburg County Magistrate (name

unknown), Judge Donnie Hoover, & Judge George Bell

1. Eleventh Amendment

The Eleventh Amendment bars suits brought in federal courts by a state's own citizens or

the citizens of another state to the extent the suit seeks retrospective relief, including damages,

against an unconsenting state. See Edelman v. Jordan, 415 U.S. 651, 662–68 (1974) (explaining

that Ex Parte Young, 209 U.S. 123 (1908) and subsequent Supreme Court cases have limited relief

against unconsenting states to prospective injunctive relief necessary to comply with federal law).

Because a suit against a state official in his or her official capacity “is no different from a suit

against the State itself,” the Eleventh Amendment also bars suits brought in federal court that seek

monetary relief from state officials in their official capacity. Will v. Mich. Dep't of State Police,

491 U.S. 59, 71 (1989); see also Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995) (noting that

compensatory or punitive damages are unavailable as relief in official capacity suits). While

Congress may abrogate a state's Eleventh Amendment immunity in certain limited circumstances,

the Supreme Court has determined that Congress did not intend to abrogate Eleventh Amendment

immunity when it enacted 42 U.S.C. § 1983. Will, 491 U.S. at 66.

Here, the Defendant judges are clearly state officers. See N.C. CONST. ART. IV, § 2, 10, 19

(establishing that superior and district court judges are officers of the state); N.C. GEN. STAT. §

7A-4, -40, -41, -60, 130 (2021). Accordingly, the Eleventh Amendment bars Plaintiff’s claim

against each of the named judges because Plaintiff seeks monetary damages against state officers

and there is no abrogation of Eleventh Amendment immunity or consent to the suit.

Though Plaintiff points to the Ex parte Young doctrine to support his claims against the

judges, this support is misplaced. The long-standing doctrine of Ex parte Young “allows private

citizens, in proper cases, to petition a federal court to enjoin State officials in their official

capacities from engaging in future conduct that would violate the Constitution or a federal statute.”

Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002). Specifically, Ex parte Young authorizes

“suits against state officers for prospective equitable relief from ongoing violations of federal law.”

Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. 2001). To determine whether the Ex parte Young

doctrine is applicable, a court “need only conduct a straightforward inquiry into whether the

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (internal

quotation and citation omitted).

Importantly, Plaintiff is seeking monetary relief for the “severe financial damage and

emotional hardship” he suffered. (Doc. No. 29, p. 14). This clearly is a remedy sought for past

conduct and is not prospective. Similarly, to the extent Plaintiff seeks declaratory relief, that too

seeks a declaration of past misconduct and violations of Plaintiff’s rights as opposed to ongoing

violations. Plaintiff’s attempt to characterize his relief sought as purely injunctive in his response

in opposition of Defendant judges’ motion to dismiss is unsuccessful. Accordingly, the Ex part

Young doctrine is inapplicable to Plaintiff’s claims.

2. Absolute Judicial Immunity

It is well established law that judges have immunity from civil liability for their actions “in

the exercise of their judicial functions.” Bradley v. Fisher, 800 U.S. 335, 347 (1871). The Supreme

Court has held that judicial immunity applies to suits under 42 U.S.C. § 1983. Stump v. Sparkman,

435 U.S. 349, 356 (1978). This protection of judicial immunity extends to situations where the

allegations raise a question of whether the judicial officer erred in exercising judicial authority.

See Dean v. Shirer, 547 F.2d 227, 231 (4th Cir. 1976) (“[T]he law has been settled for centuries

that a judge may not be attacked for exercising his judicial authority, even if done improperly.”);

Imbler v. Pachtman, 424 U.S. 409, 419 (1976) (stating that judicial “immunity applies even when

the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit

of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges

should be at liberty to exercise their functions with independence and without fear of

consequences”) (internal quotations omitted). For judicial immunity to apply, two elements are

required: (1) the action was not done “in the ‘clear absence of all jurisdiction’” and (2) the action

is a “judicial act”. King v Myers, 973 F.2d 354, 356–57 (4th Cir. 1992) (quoting Stump, 435 U.S.

at 357, 360–62).

Here, Plaintiff’s allegations relate to conduct by the Defendant judges while they were

acting in their judicial capacities presiding over matters rightfully before them. Specifically,

Plaintiff takes issue with the judicial decisions rendered during court hearings including

information “suppressed” or not addressed by the Defendant judges. Like the plaintiff in Smith,

Plaintiff is dissatisfied with the Defendant judges’ rulings and attempts to allege a violation of his

civil rights. Thus, the Defendant judges are entitled to absolute judicial immunity.

3. Rooker-Feldman Doctrine

As noted, Plaintiff alleges in his Fourth Amended Complaint that the unknown Magistrate

Judge presided over a suit filed against VMC, LLC which resulted in the eviction of Plaintiff from

his business location. Then, Judge Hoover presided over a case between Plaintiff and his former

landlord which resulted in a ruling which allowed the landlord to retain Plaintiff’s seized assets.

In a suit contesting Judge Hoover’s ruling, Judge Bell also returned a ruling unfavorable to

Plaintiff. Plaintiff claims here that his constitutional rights were violated during each of these prior

suits. Because Plaintiff is attempting to seek review by this federal court of multiple state court

actions that have already been adjudicated, this action is barred by the Rooker-Feldman doctrine,

which bars federal courts from sitting “in direct review of state court decisions.” District of

Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 482–84 (1983).

Under the Rooker-Feldman doctrine, federal district courts do not have jurisdiction over

challenges to state court decisions, even if those challenges allege that the state court’s action was

unconstitutional. Id. at 486. The doctrine also bars actions that are “inextricably linked” with the

state court decision. Shooting Point, L.L.C. v. Cumming, 368 F.3d 379, 383 (4th Cir. 2004). Here,

the Court is essentially being called on to review state court decisions under the guise of a

deprivation of constitutional rights. The Court has no authority to entertain such a claim. See

Hargrove v. Steiner, No. 5:04-cv-304-FL(1), 2004 WL 3317654, at *6 (E.D.N.C. Dec. 23, 2004).

This action must, therefore, be dismissed.

4. Failure to State a Claim

The individual Defendants (Mecklenburg County Magistrate (name unknown), Judge

Donnie Hoover, and Judge George Bell) also seek dismissal for Plaintiff’s failure to state a

plausible claim of relief against them. Each version of Plaintiff’s complaint specifically indicates,

by way of parenthetical information after the individual Defendants’ names, that Plaintiff’s §1983

claims against Mecklenburg County Magistrate (name unknown), Judge Donnie Hoover, and

Judge George Bell are asserted against them only in their official capacities.

The distinction between official and individual capacity suits under § 1983 has been

explained in Dillard v. Fox, 2009 WL 88879 (W.D.N.C. Jan. 12, 2009).

In Kentucky v. Graham, 473 U.S. 159 (1985), the Court sought to eliminate

lingering confusion about the distinction between personal—and official—capacity

suits. We emphasized that official-capacity suits “‘generally represent only another

way of pleading an action against an entity of which an officer is an agent.’” Id., at

165 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690,

n. 55,(1978)). Suits against state officials in their official capacity therefore should

be treated as suits against the State. 473 U.S., at 166. . . . Because the real party in

interest in an official-capacity suit is the governmental entity and not the named

official, “the entity's ‘policy or custom’ must have played a part in the violation of

federal law.” Graham, supra, at 166 (quoting Monell, supra, 436 U.S., at 694).

Dillard, 2009 WL 88879 at *3 (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Therefore, by

suing Defendants in their official capacities, Plaintiff brings his claims against the government

entities for which they work. Theodore v. City of Charlotte-Goins, 2013 WL 5934133, at *7

(W.D.N.C. Nov. 1, 2013) (citing Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87

L.Ed.2d 114 (1985)); see also McMillian v. Monroe Cty., 520 U.S. 781, 785 n.2 (1997).

Here, the Defendant judges work for the State of North Carolina. Therefore, the claims

brought against them in their official capacity are the equivalent to claims brought against the state.

It is well-established that “a State is not a person within the meaning of § 1983.” Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 6 (1989). Therefore, the Defendant judges sued in their official

capacity are not “persons” subject to liability under 42 U.S.C. § 1983 and the claims against them

must be dismissed.

D. Motion to Intervene

On October 2, 2023, Plaintiff filed a motion, (Doc. No. 39), asking for the Court’s

intervention regarding “the consistent failure of the opposing party, to serve documents upon me,

despite multiple filings with this Honorable Court with their false ‘Certificate of Service.’” (Doc.

No. 39, p. 1). Plaintiff contends that he became aware of Defendants filed motions “[o]nly through

Roseboro order”. (Doc. No. 39, p. 2). However, Plaintiff goes on to contradict this by noting that

“[c]ourt docket entry is emailed to [him] with a date to respond.” (Id.). In fact, since December 19,

2022, Plaintiff has been receiving notice of filings via the Court’s electronic filing system pursuant

to his request. This Court’s Administrative Procedures Governing Filing and Service by Electronic

Means provides that if the recipient is a registered participant in the System, the System’s emailing

of the “Notice of Electronic Filing” shall be the equivalent of service of the pleading or other paper

by first class mail, postage prepaid.

On September 21, 2023, Defendant Mecklenburg County Court Administration sent

electronic notification of their motion to dismiss. As shown on the electronic notice, Plaintiff was

sent electronic notification of the Defendant’s motion to the email address provided in his

electronic notification request. Additionally, the certificate of service attached to the motion shows

that the motion was mailed to Plaintiff’s address of record. (Doc. 31, p. 3). Then, on September

29, 2023, Defendant Mecklenburg County Sheriff Office sent electronic notification of their

motion to dismiss. Similarly, the electronic notice shows Plaintiff was sent electronic notification

to the email address provided. Furthermore, the certificate of service also shows that the motion

was mailed to Plaintiff’s address of record. (Doc. No. 36, p. 2).

Accordingly, Plaintiff cannot credibly state that he was not provided notice of either

Defendants’ motions to dismiss. It is implausible that neither electronic notice nor notice by mail

was provided to Plaintiff. Furthermore, Plaintiff has not missed a deadline in this matter and has

responded to each Defendants’ court filings. Therefore, Plaintiff's motion to intervene is DENIED.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant State of North Carolina’s Motion to

Dismiss the Complaint, (Doc. No. 20), is DENIED AS MOOT.

IT IS FURTHER ORDERED that Defendant Mecklenburg County Superior Court

Administration’s and Defendant Mecklenburg County Sheriff Office’s Motions to Dismiss the

Amended Complaint, (Doc. Nos. 31, 36), are GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motion to Intervene, (Doc. No. 39), is

DENIED.

IT IS SO ORDERED.

Signed: October 26, 2023

Frank D. Whitney

United States District Judge * ey

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