Dunn Jr. v. Holden

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

5:22-CV-530-M-BM

ROSE MARIE EDWARDS BAKER R )

DUNN JR., )

)

Plaintiff, )

) ORDER AND

v. ) MEMORANDUM AND

) RECOMMENDATION

ROGENE EARL HOLDEN, )

)

Defendant. )

This pro se case is before the court on the application [DE-1] filed by Plaintiff Rose Marie

Edwards Baker R Dunn Jr. (“plaintiff”) to proceed in forma pauperis pursuant to 28 U.S.C. §

1915(a)(1) (“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B),

respectively. These matters were referred to the undersigned magistrate judge, pursuant to 28

U.S.C. § 636(b)(1).

The court finds that plaintiff has demonstrated appropriate evidence of inability to pay the

required court costs, and the application to proceed in forma pauperis [DE-1] will be allowed.

However, based on the court’s frivolity review and for the reasons set forth below, it is

recommended that plaintiff’s complaint [DE-1-3] be dismissed.

ORDER ON IN FORMA PAUPERIS MOTION

To qualify for in forma pauperis status, a person must show that she “cannot because of

[her] poverty pay or give security for the costs . . . and still be able to provide [herself] and

dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.

331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff’s application

and finds that she has adequately demonstrated her inability to prepay the required court costs.

Her application to proceed in forma pauperis [DE-1] is therefore ALLOWED.

MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

I. BACKGROUND

A. Factual allegations and legal claims

Plaintiff’s complaint [DE-1-3], as ostensibly supplemented and amended by plaintiff’s

exhibits [DE-1-2 and -1-4] and additional filings [DE-5 to -24], is not a model of clarity.1 The

underlying cause of action appears to center around a probate dispute involving the last will and

testament of Hattie P. Holden Towns (“Mrs. Towns”), who is plaintiff’s foster mother and the birth

mother of defendant, Rogene Earl Holden (“defendant”). [DE-1-3]. Most, if not all, of plaintiff’s

claims appear to relate to the disposition of a house and farm that allegedly belonged to Mrs.

Towns before she died. Id. Plaintiff includes a State of North Carolina Servicemembers Civil

Relief Act Declaration form that plaintiff appears to have completed, ostensibly in support of her

familial relationship to defendant. [DE-1-4] at 3-4. Plaintiff repeatedly alleges that Mrs. Towns’s

biological sons will not give plaintiff a copy of her foster mother’s last will and testament (see

[DE-1-4] at 1-2), which allegedly bequeaths a house to plaintiff as the youngest member of the

family (see [DE-9] at 1).

Plaintiff’s filings also include the statement that “[m]y ½ brothers had not yet taking our

mom name off the land property or anything else . . . is there any way that the TAX FRAUD be

taking [sic] off their records.” [DE-10] at 1. She appears to allege that the last will and testament

1 An order was issued in this case by Chief United States District Judge Richard E. Myers II directing plaintiff to

“show cause in writing, on or before February 7, 2023; explaining why this court should not dismiss this action for

lack of subject-matter jurisdiction.” [DE-4]. Plaintiff subsequently submitted numerous additional documents prior

to February 7, 2023 [DE-5 to -12], as well as after February 7, 2023 [DE-13 to -24]. Each of the filed documents have

been considered by the undersigned.

2

“states on the tax that [defendant] had giving [sic] Mr. Darryl M. Holden a[n] area of the property,

the tax on what he let Darryl have is $4,854.” [DE-9] at 2. She then attaches numerous documents

indicating that her mother’s name is still on various financial accounts, and state or county tax

documents. See [DE-9-2].

Finally, plaintiff appears to make various allegations about the reunification of certain of

her foster siblings with their birth families and attaches informational materials on foster care and

reunification in North Carolina. See [DE-16] at 1 (“The two Farley sisters: Greta and Aileen

Farley. They left and reunited back with their biological family after our foster mother passed

away 02/07/1986.”); see also [DE-16-1] (Factsheet for families on reunification from foster care).

B. Jurisdiction

Plaintiff alleges that this court has jurisdiction over her claim pursuant to “Facts and truth

and location.” [DE-1-3] at 2. On her civil cover sheet, plaintiff marks “Federal Question” as the

basis of this court’s jurisdiction, and provides only “withholding proof of last will and testament

of parent. Also stopping income” as the cause of action. See [DE-1-2] (Civ. Cover Sheet). She

does not otherwise cite any federal statute or constitutional provision on the civil cover sheet. Id.

C. Relief requested

The relief plaintiff seeks is:

[a] copy of the Last Will and Testament of Ms. Hattie P. Holden Towns. Plus and

[sic] apology from stopping my income from what it is now. Its [sic] should have

more money in my saving and in my daily living. He will tell them on she don’t

need that much money. He try to make decision for me without asking and contract

of the tenant. They lived in my house and number of acres there is.

[DE-1-3] at 3.

II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

3

After allowing a party to proceed in forma pauperis, as here, the court must conduct a

frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court

must determine whether the action is frivolous or malicious, fails to state a claim upon which relief

can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to

dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)

(standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or in

fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

In evaluating frivolity specifically, a pro se party’s pleadings are held to “less stringent

standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989).

Nonetheless, the court is not required to accept the contentions of a party proceeding in forma

pauperis as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the

complaint’s factual allegations and dismiss those claims whose factual contentions are clearly

baseless.” Neitzke, 490 U.S. at 327. Provided that a party’s claims are not clearly baseless, the

court must weigh the factual allegations in the party’s favor in its frivolity analysis. Denton, 504

U.S. at 32. The court must read the complaint carefully to determine if a party has alleged specific

facts sufficient to support the claims asserted. White, 886 F.2d at 724.

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for

relief must contain “a short and plain statement of the grounds for the court’s jurisdiction . . . [and]

a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(1)-(2). Case law explains that the factual allegations in the complaint must create more

than a mere possibility of misconduct. Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190-91 (4th

Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is

4

insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of

a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S.

at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original)

(internal quotation marks omitted)).

A court may also consider subject matter jurisdiction as part of the frivolity review. See

Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question

of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”);

Hill v. Se. Reg’l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D.N.C. Oct. 21,

2019), report and recommendation adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D.N.C.

Dec. 20, 2019), aff’d, 818 F. App’x 261 (4th Cir. 2020) (discussing the lack of federal question

jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal

courts are courts of limited jurisdiction and are empowered to act only in those specific instances

authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption

is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction

exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing

subject matter jurisdiction rests on the party invoking jurisdiction, here, the plaintiff. Adams v.

Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . .

is on . . . the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds

for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter

jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3). One basis for subject matter

jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution,

laws, or treaties of the United States. 28 U.S.C. § 1331.

5

III. DISCUSSION

The claims in all of plaintiff’s filings appear to relate to the administration of the estate of

Mrs. Towns, her foster mother. See generally [DE-1-3]. While the circumstances alleged by

plaintiff appear to be distressing to her, such circumstances alone do not allow this court to

adjudicate every disagreement or perceived grievance a party may have. Bowman, 388 F.2d at

760 (noting that “[f]ederal courts are courts of limited jurisdiction”). As previously noted by this

court, plaintiff (1) “has not alleged a violation of federal law or that her case requires the resolution

of a substantial question of federal law, and therefore she has not established federal question

jurisdiction” and (2) “fails to name parties that are citizens of a different state than [p]laintiff’s

state, and therefore has not established diversity jurisdiction.” [DE-4]. Plaintiff’s filings

subsequent to the show cause order failed to remedy these deficiencies for the reasons discussed

below. See generally [DEs-5 to -24].2

A. Probate claims

As noted above, plaintiff’s complaint relates primarily to the alleged misadministration of

her foster mother’s estate. See generally [DE-1-3]. “[Q]uestions regarding probate are issues of

state law.” Mayer v. Brandstetter, No. 7:09-MC-5, 2009 WL 10706610, at *2 (E.D.N.C. July 9,

2009) (citing Harris v. Zion Sav. Bank & Trust Co., 317 U.S. 447, 450 (1943)). “[S]tate probate

courts [have jurisdiction over] the probate or annulment of a will and the administration of a

decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is

2 For the avoidance of doubt, none of plaintiff’s filings [DEs-5 to -24] subsequent to the show cause order [DE-4]

contradict the allegations in plaintiff’s complaint that plaintiff and defendant are both citizens of North Carolina,

demonstrating an absence of diversity jurisdiction (cf. [DE-1-3] at 1 (Civ. Cover Sheet)); Navy Fed. Credit Union v.

LTD Fin. Servs., LP, 972 F.3d 344, 352 (4th Cir. 2020) (noting that there must be “complete” diversity between

parties, which “means that no plaintiff may share a citizenship with any defendant.”) (citing Strawbridge v. Curtiss, 7

U.S. (3 Cranch) 267 (1806)).

6

in the custody of a state probate court.” Marshall v. Marshall, 547 U.S. 293, 311-12 (2006).

Accordingly, the undersigned RECOMMENDS that any claims related to plaintiff’s probate

claims be DISMISSED.

B. Servicemembers Civil Relief Act (“SCRA”) claims

Plaintiff’s inclusion of a Servicemembers Civil Relief Act, 50 U.S.C. § 3951 (“SCRA”),

Declaration ([DE-1-4] at 3-4), falls short of raising a federal question. The SCRA “was created

(1) ‘to provide for, strengthen, and expedite the national defense’ by allowing service members ‘to

devote their entire energy to the defense needs of the Nation;’ and (2) ‘to provide for the temporary

suspension of judicial and administrative proceedings and transactions that may adversely affect

the civil rights of servicemembers during their military service.’” U.S. Bank Tr., NA for LSF9

Master Participation Tr. v. Chae, No. 1:17-CV-1171-AT-AJB, 2017 WL 8217730, at *5 (N.D.

Ga. Apr. 17, 2017), report and recommendation adopted sub nom. U.S. Bank Tr., NA v. Chae, No.

1:17-CV-1171-AT, 2017 WL 8220500 (N.D. Ga. May 10, 2017) (citing 50 U.S.C. § 3902).

The SCRA is a defense for a defendant to raise, but it does not provide an independent

basis for federal jurisdiction. See id. at *5 (“[A]s a defense to the dispossessory proceedings, the

SCRA does not necessarily provide a basis for removal because, as stated above, ‘an anticipated

or actual federal defense generally does not qualify a case for removal.’”) (quoting Jefferson Cnty.,

Ala. v. Acker, 527 U.S. 423, 430-31 (1999)); see also In re Blackwater Sec. Consulting, LLC, 460

F.3d 576, 584 (4th Cir. 2006) (“[A]ctions in which defendants merely claim a substantive federal

defense to a state-law claim do not raise a federal question.”).

The SCRA also includes a provision on tolling of statutes of limitations. See Griffin v.

Navient Sols., Inc., No. 15CV1818 DMS (DHB), 2016 WL 5719831, at *4 (S.D. Cal. Sept. 30,

7

2016). However, this protection would not benefit plaintiff as she does not allege that she ever

performed military service. See 50 U.S.C. § 3936(a) (“The period of a servicemember’s military

service may not be included in computing any period limited by law, regulation, or order for the

bringing of any action or proceeding in a court.”) (emphasis added).

Accordingly, the undersigned RECOMMENDS that any claims arising out of plaintiff’s

SCRA allegations be DISMISSED.

C. Tax Fraud claims

With respect to plaintiff’s cursory reference to “[t]ax [f]raud” ([DE-10] at 1), plaintiff does

not cite any federal tax law that has been violated or allege how any federal law supports her right

to relief. See Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. California,

463 U.S. 1, 27–28, 103 S. Ct. 2841, 2856, 77 L. Ed. 2d 420 (1983) (noting that federal question

jurisdiction only exists in “those cases in which a well-pleaded complaint establishes either that

federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on

resolution of a substantial question of federal law.”).

This reference to “tax fraud” and certain exhibits that indicate that Mrs. Towns’s name may

still be listed on various assets are not enough to satisfy the pleading requirements of Rule 8, let

alone the heightened pleading requirements of Rule 9(b) for fraud allegations. See Dorseli v.

Gonzalez, No. 2:17-CV-37-FTM-99CM, 2017 WL 4286482, at *4 (M.D. Fla. Sept. 27, 2017)

(“Federal Rule 9(b) requires that fraud be pled with particularity and the Court otherwise sees no

authority that the heightened pleading requirement would not apply to tax fraud cases.”); Forsyth

v. Residential Credit Sols., Inc., No. A-10-CA-379-JRN, 2011 WL 13272362, at *4 (W.D. Tex.

Feb. 23, 2011) (noting with respect to a claim of federal tax fraud, “[a]t a minimum, Rule 9(b)

8

requires allegations of the particulars of time, place, and contents of the false representations.”)

(citing Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 724 (5th Cir. 2003)).

The “tax fraud” plaintiff alleges appears to be entirely based on the underlying probate

dispute, which as discussed above, fails to raise any cognizable federal question. See Williams v.

Madera Super. Ct., No. 1:14-CV-01135-LJO-SKO, 2014 WL 5602210, at *2, *5 (E.D. Cal. Nov.

3, 2014), subsequently aff’d, 671 F. App’x 431 (9th Cir. 2016) (dismissing plaintiff’s claims,

including vague allegations of tax fraud, as a part of an underlying state probate dispute); Davis-

Moab v. Jefferson Davis Cnty. Tax Assessor’s Off., No. 2:19-CV-2-KS-MTP, 2019 WL 13293009,

at *1 (S.D. Miss. Jan. 14, 2019), report and recommendation adopted, No. 2:19-CV-2-KS-MTP,

2019 WL 13292997 (S.D. Miss. Mar. 15, 2019) (declining to find federal question jurisdiction

when “the claims asserted have to do with state tax liens and the recording of deeds”); contra State

ex rel. Jacobson v. Wells Fargo Nat’l Bank, N.A., 824 F.3d 308, 317–18 (2d Cir. 2016) (finding

that state-law tax fraud claims raised a substantial federal question because they depended on the

definition of a federal tax exemption for mortgage-backed securities).

Additionally, while there is a federal estate tax, it only applies to estates that exceed a

certain total value after including certain additions, such as lifetime taxable gifts, which have not

been alleged here. In 1986, the alleged year of Mrs. Towns’s death, it only applied to estates that

had a total value exceeding $500,000. See Barry W. Johnson, Estate Tax Returns, 1986-1988,

https://www.irs.gov/pub/irs-soi/86-88estr.pdf (last visited August 23, 2024). At the time plaintiff

filed the instant complaint, it only applied to estates with a total worth of more than $12,060,000.

See IRS, Estate tax, https://www.irs.gov/businesses/small-businesses-self-employed/estate-tax

(last visited August 23, 2024).

9

Even generously construing plaintiff’s allegations and supporting exhibits, there is no

indication that Mrs. Towns’s estate even came close to a value that would subject it to federal

estate tax liability in the relevant year. See [DE-9-2] at 3 (indicating that the property at Hat Walt

Lane was valued at $192,062 by the Wake County Tax administration in 2022). Additionally,

plaintiff makes no allegations that defendant failed to pay any federal taxes due or otherwise made

any fraudulent representations to the Internal Revenue Service. Accordingly, the undersigned

RECOMMENDS that any claims arising out of plaintiff’s tax fraud allegations be DISMISSED.

IV. CONCLUSION

For the reasons set forth above, IT IS RECOMMENDED that plaintiff’s complaint be

DISMISSED as frivolous and for failure to state a claim on which relief may be granted pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii).

IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be

served on plaintiff or, if represented, her counsel. Plaintiff shall have until September 10, 2024,

to file written objections to this Memorandum and Recommendation. The presiding district judge

must conduct his own review (that is, make a de novo determination) of those portions of the

Memorandum and Recommendation to which objection is properly made and may accept, reject,

or modify the determinations in the Memorandum and Recommendation; receive further evidence;

or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local

rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation

by the foregoing deadline, the party will be giving up the right to review of the Memorandum

10

and Recommendation by the presiding district judge as described above, and the presiding

district judge may enter an order or judgment based on the Memorandum and

Recommendation without such review. In addition, the party’s failure to file written

objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals

from an order or judgment of the presiding district judge based on the Memorandum and

Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

Submitted, this 23rd day of August, 2024.

_ Ff

Brian S. Meyers

United States Magistrate Judge

11