Dunn Jr. v. Holden

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

5:23-CV-12-M-BM

ROSE MARIE EDWARDS BAKER R )

DUNN JR., )

)

Plaintiff, ) ORDER AND

) MEMORANDUM AND

v. ) RECOMMENDATION

)

ROBERT A. 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 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-1-1] 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. PLAINTIFF’S ALLEGATIONS

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

exhibits [DE-1-2 to -1-4] and additional filings [DE-4 to -6], appears to center around a probate

dispute related to the last will and testament of Hattie P. Holden Towns (“Mrs. Towns”) who is

the foster mother of plaintiff and the birth mother of defendant, Robert A. Holden (“defendant”).

Many of plaintiff’s claims revolve around the disposition of a house and real property allegedly

belonging to Mrs. Towns before she died. [DE-1-1].

Specifically, plaintiff’s complaint alleges the following:

Robert continuously telling [sic] that I’m a foster child and that I nor [sic] the rest

of the foster children was not on our mom obituary and that there was no will and

last testament he continuously telling the men that I have or had relationship with

about me starting my period when I was 11 years old and that I’m nasty ([HIPPA]),

That my mom did not leave a will and last testament. I kept tell [sic] Robert “Bob”

that he could not live on my property at 1500 hat walt lane. He kept repeating that

I just can’t see him giving his mom [sic] property away. I keep telling him it’s no

longer mom [sic] property it’s my property the youngest and mom could not take

and [sic] property with her when she died 2/07/1986. Our mom did remarried [sic]

after their father passed away 10/24/1967 to Mr. Vass C. Towns.

I also know that he built a garage to his property in Zebulon. He built on [sic] in

Wendell on our mom [sic] property and that he belong to me know [sic].

[DE-1-1] at 3.

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

legal document . . . see attachment too Please” [DE-1-1] at 2. On her civil cover sheet, plaintiff

marks “Federal Question” as the basis of this court’s jurisdiction, but does not otherwise cite any

statutes, constitutional provisions, or describe the cause of action. See [DE-1-4] (Civ. Cover

Sheet). She writes “military” at the top of the right half of her civil cover sheet, which the court

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liberally construes as a claim that defendant is, or was, in the military. Id.

Plaintiff attaches as an exhibit to her complaint a printout of the Third Amendment to the

United States Constitution, which provides that “[n]o Soldier shall, in time of peace be quartered

in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed

by law.” See [DE-1-2]; see also U.S. Const. amend. III.

Plaintiff includes various other exhibits in support of her complaint consisting of printouts

from the Wake County CAMA System, showing certain property being owned by the “Hattie P. .

. . Holden . . . Heirs” ([DE-1-3] at 1-2) and the obituary of Mrs. Hattie P. Holden,1 which indicates

that “foster daughter[] Rose Marie Ray”2 was “of the home” at the time Mrs. Hattie P. Holden died

(id. at 2). Additionally, plaintiff filed numerous documents ostensibly in support of her complaint,

including (1) a letter from plaintiff alleging (i) that her mother’s, i.e., Mrs. Towns’s, name had not

been taken off of her mother’s property after her mother’s death, (ii) that her half-brothers were

engaged in tax fraud, and (iii) that plaintiff was the rightful owner of 100% of her mother’s

property ([DE-4] at 1);3 (2) a deed for property made in 1960 [DE-5] and a list of the cases before

this court, for which the deed is allegedly relevant [DE-5-1]; (3) an affidavit from the Wake County

Register of Deeds attesting to the veracity of a deed [DE-6]; and (4) what appears to be a criminal

record summary for Kenneth Lamar Holden ([DE-6] at 2).

Plaintiff seeks the following relief:

The last will and testament of our mom (The late Hattie P. (Holden) Towns) and for

him to except [sic] that his mom is my mom too. Plus my mom married Mr. Vass

C. Towns and he [sic] their step-father. That I have proof about what I tell him. So

since he built one garage in Zebulon that the one that he put on the [sic] belong to

1 The undersigned construes references to “Mrs. Hattie P. Holden” and to “Mrs. Towns” as referring to the same

person.

2 The undersigned construes references to Rose Marie Ray as allegedly referring to plaintiff.

3 Plaintiff filed what appears to be an identical copy of this document in another case before the undersigned. [DE-

10] Dunn Jr. v. Rogene Earl Holden, 5:22-cv-00530-M-BM (E.D.N.C. filed Dec. 28, 2022).

3

[sic] because he use some of the money for the rent money with the tenant in my

house pay.

[DE-1-1] at 3.

II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

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.

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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

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

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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.

III. DISCUSSION

Regardless of the labels she ascribes to them, the claims in plaintiff’s complaint appear to

exclusively relate to state law probate, property, and family law matters. See Iqbal, 556 U.S. at

678 (noting mere “labels and conclusions” and “naked assertion[s] devoid of further factual

enhancement” are insufficient to state a claim for relief under federal law) (quoting Twombly, 550

U.S. at 555-57 (alterations in original).

Plaintiff fails to name parties that are citizens of different states, and therefore has not

established diversity jurisdiction. [DE-1-1] at 1 (alleging that plaintiff and defendant are both

residents of North Carolina). Moreover, for the reasons discussed below, plaintiff has not alleged

a viable 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. See [DE-1-4] (Civ.

Cover Sheet §II.3 (“Federal Question” box marked as basis of jurisdiction, but failing to indicate

the nature of suit or describe the cause of action).

A. Administration of estate

As an initial matter, plaintiff raises the issue of her mother’s estate and the property that

was allegedly bequeathed to her in another case before the undersigned, Dunn Jr. v. Rogene Earl

Holden, 5:22-cv-00530-M-BM (E.D.N.C. filed Dec. 28, 2022). As noted in that case, “questions

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

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to dispose of property that is 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. Tax fraud

The “tax fraud” plaintiff alleges also appears to be nearly identical to the allegations she

makes in Dunn Jr. v. Rogene Earl Holden, 5:22-cv-00530-M-BM (E.D.N.C. filed Dec. 28, 2022).

As noted in that case, with respect to plaintiff’s cursory references to “[t]ax [f]raud” ([DE-4] 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 cursory reference to “tax fraud” is 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) 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)).

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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).

Even generously construing plaintiff’s complaint [DE-1-1] and supporting exhibits [DE-1-

2 to -1-4; DE-4 to -6], 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. Additionally, plaintiff makes

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no allegations that defendant failed to pay any federal taxes due or 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.

C. HIPAA

Plaintiff’s passing reference to “HIPAA,” i.e., the Health Insurance Portability and

Accountability Act of 1996 ([DE-1-1] at 2), also fails to allege a claim on which relief. Plaintiff

alleges that defendant “continuously tell[s] the men that [she] ha[s] or had relationships w[ith]

about [her] starting [her] period when [she] was 11 years old and that [she] is nasty (HIPA[A]).”

Id. HIPAA states, in relevant part, that “[a] person who knowingly . . . discloses individually

identifiable health information to another person” without authorization shall be fined, imprisoned,

or both. 42 U.S.C. § 1320d-6(a)(3), (b); see Payne v. Taslimi, 998 F.3d 648, 660 (4th Cir.), cert.

denied, 211 L. Ed. 2d 403 (2021). The undersigned need not determine whether defendant

disclosed plaintiff’s “identifiable health information,” as defined by HIPAA, because even if

defendant did so, HIPAA does not provide a private cause of action. See id. (“Every circuit court

to consider whether HIPAA created a private right to sue has found that it does not.”).

Accordingly, the undersigned RECOMMENDS that plaintiff’s HIPAA claim be DISMISSED.

D. Third Amendment

Finally, to the extent that plaintiff’s filings can be construed as attempting to assert a claim

under the Third Amendment to the United States Constitution, any such claim must fail. “The

Third Amendment prohibits the quartering of a soldier in a house during peacetime without the

owner’s consent.” Swanson v. King, No. 7:21-CV-80-BO, 2021 WL 3856454, at *3 (E.D.N.C.

Aug. 27, 2021) (citing U.S. Const. amend. III.). “[T]he Third Amendment to the Constitution’s

right to be free from quartering of soldiers in private homes, unsurprisingly, is not frequently

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invoked.” SFF-TIR, LLC v. Stephenson, 262 F. Supp. 3d 1165, 1231 (N.D. Okla. 2017).

Even generously construing plaintiff’s filings as alleging that defendant is or was a member

of the military, there is no indication that he is being “quarter[ed]” in plaintiff’s house on this basis.

The dictionary defines “to quarter,” as relevant here, as a transitive verb meaning “to provide with

lodging or shelter.” Quarter, Merriam-Webster, https://www.merriam-webster.com/

dictionary/quarter (last visited August 23, 2024). Plaintiff never alleges that anyone “lodged”

defendant on her property. “The Third Amendment was a response to the Quartering Acts of 1765

and 1774, in which Parliament authorized British military commanders to requisition private

homes as barracks.” Goethel v. U.S. Dep’t of Com., 854 F.3d 106, 113 n.9 (1st Cir. 2017). There

is no allegation that defendant’s presence on the relevant property is predicated on his status in the

military, or was directed by any military or other governmental authority. Mitchell v. City of

Henderson, No. 2:13-CV-01154-APG, 2015 WL 427835, at *18 (D. Nev. Feb. 2, 2015) (“[T]he

Third Amendment protects private citizens from incursion by the military into their property

interests, and guarantees the military’s subordinate role to civil authority.”). Rather, defendant’s

alleged presence on the relevant property appears to revolve around questions of probate and

family law, which this court cannot consider for the reasons discussed above.

Accordingly, plaintiff’s Third Amendment claim fails to state a claim upon which relief

may be granted, and the undersigned RECOMMENDS that plaintiff’s complaint 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

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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

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.

_

Brian S. Meyers

United States Magistrate Judge

1]