The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:25-CV-176-BO-KS
FRANTZ NEPTUNE, )
)
Plaintiff, )
)
v. )
)
COBBLE RIDGE HOMEOWNERS )
ASSOCIATION, INC., ERIC HINKLE, ) ORDER
DAVID J. DARIGO, GINA CLAPP, )
STEPHEN FUSI, NORTH CAROLINA )
HUMAN RELATIONS COMMISSION, )
MARGARET ATKINS, GENE TROY, )
JAMES P. GORMLEY, A. OWENS, )
)
Defendants. )
This matter comes before the Court on defendants’ motion to dismiss [DE 16]. Plaintiff
has responded, defendant has replied, and the motion is ripe for ruling. For the following reasons,
the motion is granted.
BACKGROUND
Plaintiff, proceeding pro se, filed a complaint against defendants in the United States
District Court for the Middle District of North Carolina. The complaint was transferred to this
district pursuant to 28 U.S.C. § 1406(a). [DE 33]. Plaintiff alleges that after moving to the Cobble
Ridge community of Holly Springs, North Carolina, he was “subjected to a campaign of
harassment and intimidation. It started with items in [his] yard being destroyed, trespasses, and
harassments.” He first sought the aid of his homeowner’s association, and then the local police.
He moved out of the community and filed complaints with the North Carolina Human Relations
Commission (NCHRC) and the Department of Housing and Urban Development (HUD). [DE 1-
1]. Margaret Atkins and Gene Troy investigated plaintiff's allegations to the NCHRC and found
no reasonable grounds to believe that unlawful discriminatory housing practices had occurred. [DE
1, p. 7]. Plaintiff asserts 42 U.S.C. § 1983 claims based on due process and equal protection against
NCHRC, and its employees Atkins, and Troy, collectively the “State Defendants,” who move to
dismiss [DE 16].
ANALYSIS
The State Defendants base their motion to dismiss on the Eleventh Amendment, plaintiff's
lack of standing under Fed. R. Civ. P. 12(b)(1), and failure to state a claim under Fed. R. Civ. P.
12(b)(6). Plaintiff's response argues that Congress has abrogated NCHRC’s sovereign immunity
against the claims brought in this case. He claims that by failing to comply with procedures
required by the federal Fair Housing Act (FHA), the State Defendants violated plaintiff's due
process rights.
I. Subject Matter Jurisdiction; Immunity and Justiciability
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject
matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should be
considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation omitted).
When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction
to survive the motion. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647—
50 (4th Cir. 1999), When a facial challenge to subject-matter jurisdiction is raised, the facts alleged
by the plaintiff in the complaint are taken as true, ‘‘and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009). Courts may address soverefgn immunity and standing on a 12(b)(1) motion to
dismiss.
a. Eleventh Amendment
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not
be sued by private individuals in federal court.” Bd. of Trustees of the Univ. of Ala. v. Garrett, 531
USS. 356, 363 (2001). This guarantee applies not only to suits against the state itself but also to
suits where “one of [the state’s] agencies or departments is named as the defendant.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). State officials sued in their official
capacity for damages are also protected by Eleventh Amendment immunity. Ballenger v. Owens,
352 F.3d 842, 845 (4th Cir. 2003). Eleventh Amendment immunity may be waived expressly,
Edelman v. Jordan, 415 U.S. 651, 673 (1974); if the defendants removed an action from a state
court with jurisdiction, Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002); or if
Congress has exercised its authority to abrogate Eleventh Amendment immunity, Seminole Tribe
v. Florida, 517 U.S. 44 (1996). North Carolina has not waived its sovereign immunity as to any of
plaintiffs claims.
i. Official Capacity or Individual/Personal Capacity
Claims against a state official acting in their official capacity are treated as claims against
the State. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (citations omitted).
Plaintiff's complaint specifies that he intends to sue certain defendants in both their individual and
official capacities. [DE 1, p. 2]. However, he does not specify whether he sues Atkins and Troy in
their individual or official capacities. Jd at 4. “[W]hen a plaintiff does not allege capacity
specifically, the court must examine the nature of the plaintiffs claims, the relief sought, and the
course of proceedings to determine whether a state official is being sued in a personal capacity.”
Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). Biggs identifies certain indicia of a personal
capacity suit, including the plaintiff's failure to allege that the defendants acted in accordance with
a governmental policy or custom, the apparent interpretation of the defendant, and whether the
plaintiff pursues money damages, which are unavailable in official capacity suits. Jd.
Here, plaintiff complains only of the procedures by which the State Defendants handled
his claims and the result. The fact that plaintiff sues both NCHRC itself and the persons working
for NCHRC who handled the investigation into his claims, alleging identical claims against each
of them, indicates an intent to sue Atkins and Troy in their official capacities. On the other hand,
because defendants raise a qualified immunity defense, which is available only in personal
capacity suits, [DE 17, p. 21]; id., and assert the Eleventh Amendment defense only as to NCHRC
[DE 17, p. 5], they appear to interpret plaintiff as suing Atkins and Troy in their individual or
personal capacities.
Though damages are unavailable in official capacity suits and the plaintiff here does
request damages, such a request does not always “outweigh the nature of the proposed claims,”
especially when the plaintiff's apparent intent is to hold the defendants “accountable for actions
taken in their capacity as state officials.” Thomas v. N. Carolina Mut. Life Ins. Co., 2022 WL
19569528, at *4 n.5 (E.D.N.C. 2022). Nevertheless, based on the request for money damages and
the defendants’ interpretation of the complaint, it appears on balance that plaintiff intended to sue
Atkins and Troy in their personal capacities. The Court therefore construes plaintiff's claims as
against Atkins and Troy in both their official and personal capacities. Because state officials sued
in their official capacities for damages are protected by Eleventh Amendment immunity, the State
Defendants are immune from the claims against them in their official capacities, as further
explained below, leaving only the claims against Atkins and Troy in their personal capacities.
Ballenger v. Owens, 352 F.3d 842, 845 (4th Cir. 2003).
ii. Abrogation
Plaintiff's response to the State Defendants’ motion to dismiss, citing Fitzpatrick v. Bitzer,
427 U.S. 445 (1976), states, “Congress can abrogate state sovereign immunity in connection to its
power to enforce the Fourteenth Amendment.” [DE 23, p. 2]. Plaintiff cites 42 U.S.C. §
3613(a)(1)(A) of the Fair Housing Act, which provides “an aggrieved person may commence a
civil action in. . . district court,” as an act of Congress abrogating state sovereign immunity against
his present claims. However, § 3613 continues: “to obtain appropriate relief with respect to [a]
discriminatory housing practice.”
While § 3613 provides a private right of action entitling aggrieved persons to sue for a
discriminatory housing practice, plaintiff has not alleged that the State Defendants engaged in any
discriminatory housing practice against him. Section 3613 does not create a right of action against
a state agency for its handling of investigations into discriminatory housing practices, so it does
not abrogate states’ sovereign immunity against such claims. This reading of the statute finds
support in other cases showing no private right of action against HUD for investigatory fzilures.
See, e.g., Godwin v. Sec’y of HUD, 356 F.3d 310, 312 (D.C. Cir. 2004); Marinoff'v. United States
Dep’t of Hous. & Urban Dev., 892 F. Supp. 493 (S.D.N.Y. 1994). NCHRC enjoys Eleventh
Amendment immunity from the present suit, as do Atkins and Troy in their official capacities.
b. Standing
Without Article III] standing, a court lacks subject matter jurisdiction to hear a plaintiff's
claims. See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458-59 (4th Cir. 2005). “T]o establish
standing, a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized,
and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the
injury would likely be redressed by judicial relief.” Transunion LLC v. Ramirez, 141 S.Ct. 2190,
2203 (2021). The elements of standing are “not mere pleading requirements but rather an
indispensable part of the plaintiffs case.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
The State Defendants argue that plaintiffs injury is not concrete.
“A litigant ordinarily has standing to challenge governmental action of a sort that, if taken
by a private person, would create a right of action cognizable by the courts. Or standing may be
based on an interest created by the Constitution or a statute.” Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 152-153 (1951) (Frankfurter, J., concurring) (citation omitted). The
relevant injuries plaintiff purports are (1) the State Defendants failed to provide him □□□ the
documents on which their decision was based, namely, the documents submitted by Cobble Ridge
to NCHRC, (2) the State Defendants’ investigatory procedures and result were faulty, and (3) the
State Defendants retaliated against him for failing to accept an unspecified offer to induce him to
withdraw his complaint. Both the first and second of his purported injuries appear to fall under the
umbrella of injuries created by statute; the second also appears to arise under the Fourteenth
Amendment’s guarantee of due process.
First, “Congress may create a statutory right or entitlement the alleged deprivation of which
can confer standing to sue even where the plaintiff would have suffered no judicially cognizable
injury in the absence of statute.” Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). As discussed above, the FHA does not create a private right of action against a state agency
for its handling of investigations into discriminatory housing practices. Furthermore, there is no
statutory right to receive copies of evidence submitted to the NCHRC by a respondent. The State
Defendants have not deprived plaintiff of a statutory right.
Second, the core of plaintiff's complaint is that the State Defendants violated his due
process rights. A constitutional violation is sufficiently concrete to confer Article III standing. See
McGrath, 341 U.S. at 152-153. However, for the reasons discussed below, plaintiff has no
cognizable liberty or property interest, so it stands to reason he cannot have a cognizable injury to
that interest.
Lastly, the allegation that the State Defendants retaliated against plaintiff for failing to
accept their offer is conclusory. The complaint contains no information about what plaintiff was
to receive in exchange for dropping his complaint, and no information about what the State
Defendants did in retaliation. It cannot be a basis for standing because he does not describe any
injury. Accordingly, this Court lacks subject matter jurisdiction over his claims.
II. Failure to State a Claim
Alternatively, plaintiff fails to state a claim. A Rule 12(b)(6) motion tests the legal
sufficiency of the complaint. Papasan v. Allain, 478 U.S. 265, 283 (1986). When acting on a
motion to dismiss under Rule 12(b)(6), “the court should accept as true all well-pleaded allegations
and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege enough facts to state a claim
for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial
plausibility means that the facts pled “‘allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,” and mere recitals of the elements of a cause of
action supported by conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A complaint must be dismissed if the factual allegations do not nudge the plaintiff's claims
“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Plaintiff asserts 42
U.S.C. § 1983 claims against the State Defendants based on due process and equal protection.
a. Due Process
To state a substantive due process claim, plaintiff must “demonstrate (1) that [he] had
property or a property interest; (2) that the state deprived [him] of this property or property interest;
and (3) that the state’s action falls so far beyond the outer limits of legitimate governmental action
that no process could cure the deficiency.” Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810,
827 (4th Cir. 1995) (citing Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995). Similarly, to state
a procedural due process claim, plaintiff must allege the following elements: (1) “that he had a
constitutionally cognizable life, liberty, or property interest;” (2) “that the deprivation of that
interest was caused by some form of state action;” and (3) “that the procedures employed were
constitutionally inadequate.” Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013).
Plaintiff did not have a liberty or property interest in the NCHRC’s investigation or its
outcome. Plaintiff's use of his home and, potentially, his expectancy of money damages, both
resemble cognizable property interests. See id. However, he had already left his home by the time
he lodged his complaint with NCHRC [DE 1-1], and a favorable finding from NCHRC would not
have entitled him to money damages. Because plaintiff fails to allege that he had a cognizable
property interest, he fails to state a due process claim.
b. Equal Protection
To state an equal protection claim, a plaintiff must allege facts plausibly demonstrating
“that he has been treated differently from others with whom he is similarly situated and that the
unequal treatment was the result of intentional or purposeful discrimination.” Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). The complaint contains no mention of the
characteristics for which the State Defendants allegedly discriminated against him. It does not
identify what disparate treatment other similarly situated people received. [DE 1-1]. He has failed
to state an equal protection claim on which relief can be granted.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss [DE 16] is GRANTED.
SO ORDERED, this ®9 day of September 2025.
TERRENCE W. BOYLE /
UNITED STATES DISTRICT JUPGE