“[T]he state command . . . is not rendered unlawful by the Sherman Act since, in view of the latter’s words and history, it must be taken to be a prohibition of individual and not state action.”
How later courts described this case
- “[T]he state command . . . is not rendered unlawful by the Sherman Act since, in view of the latter’s words and history, it must be taken to be a prohibition of individual and not state action.”
- “[T]he rationale and underlying purpose of both the Sherman and Clayton Acts is to prevent monopoly where it is not in the public interest. It has long since been established that both gas and electricity can best be produced and distributed (and the public benefited
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TYRONE A. ANDREWS, )
)
Plaintiff, )
)
v. ) 1:24CV925
)
DUKE ENERGY, et al., )
)
Defendants. )
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs (Docket
Entry 1), filed in conjunction with a Complaint for a Civil Case
(Docket Entry 2; see also Docket Entry 4 (Addendum)). The Court
will grant the instant Application for the limited purpose of
recommending dismissal of this action, under 28 U.S.C.
§ 1915(e)(2)(B), for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at Section 1915], is intended to guarantee that
no citizen shall be denied access to the courts solely because his
poverty makes it impossible for him to pay or secure the costs.”
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th Cir.
1995) (en banc) (internal quotation marks omitted). “Dispensing
with filing fees, however, [is] not without its problems. . . . In
particular, litigants suing in forma pauperis d[o] not need to
balance the prospects of successfully obtaining relief against the
administrative costs of bringing suit.” Nagy v. FMC Butner, 376
F.3d 252, 255 (4th Cir. 2004). To address this concern, the in
forma pauperis statute provides that “the court shall dismiss the
case at any time if the court determines . . . the action . . .
fails to state a claim on which relief may be granted . . . .” 28
U.S.C. § 1915(e)(2)(B).
ANALYSIS
Plaintiff has sued Duke Energy (and/or one of its top
officers/executives), as well as the North Carolina Utilities
Commission (and/or its chair) (see Docket Entry 2 at 1-2), for
engaging in a “monopoly” (id. at 3).1 More specifically, the
Complaint alleges: “Duke Energy is a monopoly. No other electric
company to go to. If Duke [Energy] says no it is no.” (Id. at 7;
see also id. at 5 (“This case has ensued because [Plaintiff’s]
electric[ity] is currently off.”), 6 (“My Complaint began because
my bill was high.”), 7 (“requesting the Court to order Duke
[Energy] to restore [Plaintiff’s] power,” as well as to require
“[North Carolina] Utilities Commission to complete [Plaintiff’s]
appeal process,” and grousing that Duke Energy countered
Plaintiff’s objection to disconnection of his electricity during
pendency of administrative appeal by “only ask[ing] for payment,”
1 Pin cites to the Complaint refer to the page numbers that
appear in the footer appended to that document upon its docketing
in the CM/ECF system (not to any internal pagination).
2
as well as that “[North Carolina] Utilities Commission . . .
ignored [him]”); Docket Entry 4 at 1-3 (listing eight forms of
damages incurred by Plaintiff due to electricity disconnection), 4
(“Duke Energy owes me the payments made [for goods/services lost
due to electricity disconnection]. [The North Carolina] Utilities
Commission was made aware but did not do anything.”).)
“Duke Energy is a regulated public utility that produces
electricity.” Southern All. for Clean Energy v. Duke Energy
Carolinas, LLC, 650 F.3d 401, 403 (4th Cir. 2011). In turn, North
Carolina law “gives the [North Carolina Utilities] Commission the
power to supervise and control the public utilities in [this]
State.” State ex rel. Utils. Comm’n v. North Carolina Waste
Awareness & Reduction Network, 255 N.C. App. 613, 616, 805 S.E.2d
712, 714 (2017) (internal quotation marks omitted). Moreover,
North Carolina law “clearly reflects the policy adopted by the
[state] legislature that a regulated monopoly best serves the
public, as opposed to competing suppliers of utility services.”
Id. at 619, 805 S.E.2d at 716 (emphasis added). Accordingly,
Plaintiff’s (largely conclusory) monopoly claim cannot succeed,
notwithstanding the fact that “Congress overwhelmingly passed and
President Benjamin Harrison signed the Sherman Act in 1890,
protecting consumers from monopoly prices,” Apple Inc. v. Pepper,
587 U.S. 273, 288 (2019) (internal quotation marks omitted),
because “[t]he state in adopting and enforcing the [regulated
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monopoly] program made no contract or agreement and entered into no
conspiracy in restraint of trade or to establish monopoly but, as
sovereign, imposed the restraint as an act of government which the
Sherman Act did not undertake to prohibit,” Parker v. Brown, 317
U.S. 341, 352 (1943); see also id. (“[T]he state command . . . is
not rendered unlawful by the Sherman Act since, in view of the
latter’s words and history, it must be taken to be a prohibition of
individual and not state action.”).
In sum, the actions (or inactions) of Duke Energy and the
North Carolina Utilities Commission which Plaintiff seeks to
challenge in the Complaint (i.e., Duke Energy’s acts of charging
electricity prices Plaintiff deems too high and of cutting off his
electricity for non-payment while he disputed his bill, as well as
the failure of the North Carolina Utilities Commission to require
Duke Energy to restore Plaintiff’s electricity) “find shelter under
Parker, [because] the acts complained of . . . result [from] state
action, either by state officials or by private individuals under
active supervision of the state,” Washington Gas Light Co. v.
Virginia Elec. & Power Co., 438 F.2d 248, 251 (4th Cir. 1971)
(internal quotation marks omitted); see also id. at 254 (“[T]he
rationale and underlying purpose of both the Sherman and Clayton
Acts is to prevent monopoly where it is not in the public interest.
It has long since been established that both gas and electricity
can best be produced and distributed (and the public benefited) by
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monopoly under state regulation. The problem here is not one of
preventing monopoly . . . but of making lawful monopoly work best
in the public interest. . . . [A state utility commission] can do
a better job than private piecemeal application of [federal] laws
aimed against monopoly.”).
CONCLUSION
Plaintiff’s monopoly claim fails as a matter of law.
IT IS THEREFORE ORDERED that the instant Application (Docket
Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT
TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed under 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 17, 2025
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