Wendell

IN TIT UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:23-CV-00581-M-BM

MEREDITH WENDELL, ct al.,

Plaintiffs,

V. ORDER

FRANKLIN COUNTY, ct al.,

Defendants.

Underlying this action are Plaintiffs’ broad allegations that the North Carolina Department

of Social Services (“ISS”) and lranklin County Child Protective Services (“FCCPS”), used

inaccurate, incomplete, or fraudulent information during the investigation, removal, custody, or

foster care of plaintiffs’ children. See generally DE 1-1 at 1-24. Plaintiffs Meredith Wendell and

Robert Terry (“Plaintiff Parents”), appearing pro se, filed an eleven-count complaint seeking relief

for that alleged misconduct on behalf of themselves and their four minor children, J.M.T., R.R.T.,

J.E.T., and L.J.T. (“the Minor Children”). DE 1. Because Plaintiffs seek to proceed in forma

pauperis, the court referred this matter to United States Magistrate Judge Brian S. Meyers pursuant

to 28 U.S.C. § 636(b)(1) to conduct a frivolity review and prepare a Memorandum and

Recomnendation (“M&R”). Pending before the court is that M&R. DE 8.

Judge Meyers issued the M&R on April 23, 2025. Accordingly, objections were due on or

before May 12, 2025. DE 8; see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); Local Civil

Rule 72.4(b). Plaintiffs submitted objections on May 12, 2025. DE 9, 10. But, because those

objections did not comply with the court’s local rules, the court directed Plaintiffs to re-file “an

objection that complics with the page and word limits set forth in the Local Rules no later than

August 22, 2025.” DE 11 at 1. The court specifically highlighted the local rules’ requirements

that any objection not “exceed 10 pages in length or 2800 words.” DE 11 at 1. On August 22,

2025, Plaintiffs filed another document containing their objections which, although 16 pages in

length, purports to “contain|| 2,789 words.” DE 12 at 15. The M&R and Plaintiffs’ objections

were submitted to this court for disposition on August 29, 2025.

I. Plaintiffs’ Factual Allegations

The following is based on the allegations in the complaint and is not a factual finding on

the part of the court. On September 3, 2020, FCCPS received a “report” of child abuse and

contacted Plaintiff Parents on September 4, 2020. DE 1-1 §§| 1-2. Over the next month, Plaintiff

Parents and the Minor Children met several times with FCCPS caseworkers before DSS “assumed

nonsecure custody” of the Minor Children on October 15, 2020. DE 1-1 93. Plaintiffs allege that

the initial written “removal order” relied on allegedly false or fabricated information to justify the

Minor Children’s removal. DE 1-1 § 4. It appears that at some point prior to December, 2020,

Plaintiff Parents regained (at Icast partial) custody of the Minor Children, and then lost it again.

See DE 12 at 3 (“Less than 24 hours later, [Defendants] Maxwell and Hamlett executed retaliatory

second removal... .”).

During that interim time, Plaintiff Parents and the Minor Children were staying together in

a motel room where Defendant Maxwell, an FCCPS Caseworker, visited the family. DE 1-1 § 20.

At that visit, it became apparent that at Icast one child had a soiled diaper and, before changing the

diaper, one of the Plaintiff Parents asked Defendant Maxwell to look away “for privacy reasons.”

DE 1-1 § 24. Defendant Maxwell declined, noting that she wanted to make sure the child did not

have diaper rash. DI! 1-1 4 25.

It also appears that, at various points during the custody proceedings, Plaintiff Parents

disagreed with medical providers over the course of care for at least one of the Minor Children.

See DE 1-1 §§ 36-65. In particular, Plaintiffs allege that a providing doctor observed the child

“Failfed] to Thrive,” meaning the child was not growing enough, and sought to prescribe a

medication to treat the child’s acid reflux. DE 1-1 § 41. Plaintiff Parents disagreed with that

course of care and instead gave the child a high calorie formula—a decision which they repeatedly

defended to FCCPS workers as part of their “constitutional and God-given right” as parents to

“decide what is best for their child.” See DE 1-1 at § 67.

While the complaint is unclear as to the specifics, it does appear that Plaintiffs regained

custody of their children in October, 2022. DE 1-1 § 17. Plaintiffs then filed the instant eleven-

count complaint on behalf of themselves and their minor children.

{1. Applicable Standards

A magistrate judge’s recommendation carries no presumptive weight. The court “may

accept, reject, or modily, in whole or in part, the . .. recommendation{ ] . . . receive further evidence

or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1); accord

Mathews v. Weber, 423 U.S. 261, 271 (1976). The court “shall make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which objection

is made.” Jd. § 636(b)(1). Absent a specific and timely objection, the court reviews only for “clear

error” and need not give any explanation for adopting the recommendation. Diamond yv. Colonial

Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

After allowing a party to procced 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 “secks monctary relief from an immune defendant, and is thereby subject

to dismissal.” 28 U.S.C. § 1915(c)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)

(“[A] court may dismiss a claim as factually frivolous only if the facts alleged are clearly baseless,

a category encompassing allcgations that are fanciful, fantastic, and delusional .. . .” (citations

omitted) (cleaned up)). A casc is frivolous if it lacks an arguable basis in either law or fact. Neitzke

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

II. Discussion

Judge Meyers makes four recommendations. First, Judge Meyers recommends dismissing

any claims brought pro se on behalf of the Minor Children. DE 8 at 6. Second, and relatedly,

Judge Meyers specifically recommends dismissing any Fourth Amendment claims brought on

behalf of the Minor Children, but allowing Plaintiff Parents’ Fourth Amendment claims to proceed.

DE 8 at 7-9. Third, Judge Meyers liberally construes Plaintiff's factual allegations as supporting

nine allowable claims- three under 42 U.S.C.§ 1983 and six under North Carolina law. DE 8 at

9-12. Fourth, to the extent any claim remains after accepting the first three recommendations,

Judge Meyers recommends dismissing such claims. DE 8 at 12.

Beginning with the minor children, Judge Meyers recommends dismissing all claims

brought on behalf of the Minor Children because “[t]he Fourth Circuit has rejected the right of

individuals to litigate pro se on behalf of others, even with respect to a non-attorney parent’s claims

on behalf of their minor children in federal court.” DE 8 at 6 (quoting Braun on behalf of C.B. v.

North Carolina, No. 3:23-MC-7-RJC, 2023 WL 425399, at *2 (W.D.N.C. Jan. 26, 2023)); see also

Myers v. Loudoun Cnty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005) (“We therefore join the vast

majority of our sister circuits in holding that non-attorney parents generally may not litigate the

claims of their minor children in federal court.”) (citations omitted). Plaintiff Parents do not object

to Judge Meyers’ recommendation. See DE 12 at 1 (“Plaintiffs ... object to the...M&R...

which incorrectly recommends converting constitutional violations to state tort claims.”). And

Plaintiff Parents explicitly request that the court “grant [an] extension for minor children to obtain

counsel.” DE 12 at 15. Accordingly, the court reviews this recommendation for plain error and,

finding none, accepts it as its own. The claims brought on behalf of the Minor Children are

DISMISSED WITHOUT PREJUDICE.

Regarding the request that the court grant an extension of time for minor children to obtain

counsel, it is not clear to the court what relief Plaintiff Parents seek. The court cannot, for example,

extend the statutes of limitations on any of the Minor Children’s potential claims. And the court

will not hold this matter in abeyance until the Minor Children can be represented by counsel. As

such, that request is DI-NU:D AS MOOT.

Plaintiffs object to Judge Meyers’ remaining three recommendations. See generally DE

12. The table below illustrates cach of Plaintiffs’ claims and Judge Meyers’ recommended

disposition.

Plaintiff's Ori inal Claim Judge Meyers’ Recommendation

Count |: Investigatory and Administrative Allow to proceed as a state law negligence

Conduct claim

Count 2: Fourth Amendment, Strip Dismiss because this claim is brought on

Search behalf of minor children

Count 3: Fourth Amendment, Other Allow to proceed as a § 1983 claim alleging a

Claims Fourth Amendment violation arising out of

the scarch of Plaintiffs’ motel room

Count 4: Fourteenth Amendment Allow to proceed as a § 1983 claim alleging a

Fourtcenth Amendment violation

Count 5: First Amendment/Rctaliation Allow to proceed as a § 1983 claim alleging a

ee First Amendment retaliation claim

Count 6: Failure to ‘Train and/or Allow to proceed as both a § 1983 Monell

Supervisory Liability claim and a state law negligent supervision

claim

Count 7: Failure to Reasonably Allow to proceed as a state law negligence

Adhere to NC Child Welfare Policy claim

Count 8: Conspiracy Allow to proceed as a state law conspiracy

claim

Count 9: FABRICATED EVIDENCE Allow to proceed as a state law fraud claim

& FRAUD

Count 10: Defamation Allow to proceed as a state law defamation

claim

Count 11: Infliction of Emotional Allow to proceed as state law claims for

Distress intentional infliction of emotional distress and

negligent infliction of emotional distress

Plaintiffs do not object to Judge Meyers’ recommendation that the court find the following

claims as non-frivolous: a § 1983 claim alleging a Fourth Amendment violation arising out of the

search of Plaintiffs’ motel room, a § 1983 claim alleging a Fourteenth Amendment violation, and

a § 1983 claim alleging a l‘irst Amendment retaliation claim. As such, the court reviews that

recommendation for clear error and, having found none, ADOPTS IT AS ITS OWN.

As the above table indicates, Judge Meyers has recommended dismissing Plaintiffs’

“Count 2: Fourth Amendment Strip Search,” DE 1-1 at 4-5, because “while parents can assert a

Fourteenth Amendment duc process claim related to their right to parent their children, they cannot

raise Fourth Amendment claims with respect to conduct directed at their children,” DE 8 at 9; see

also, e.g., Nelligar vy. Clark. No. 10 CIV. 743 KBF, 2012 WL 6204226, at *9 (S.D.N.Y. Dec. 7,

2012) (“Fourth Amendment rights are personal and cannot be asserted vicariously . . . [;] [w]hile

parents sometimes have the right to challenge Fourth Amendment violations on behalf of their

children .. . , parents acting pro se may not bring actions on behalf of their children... .”).

Although they style it as an objection, Plaintiffs scemingly agree, arguing that “this claim is

properly rebranded as a parental l‘ourteenth Amendment claim|] protecting [Plaintiff Parents’ □

own liberty interest in directing the care and upbringing of their children.” DE 12 at 6.

Accordingly, Plaintiffs have not objected to Judge Meyers’ recommendation that this court dismiss

any claims alleging violations of the Minor Children’s Fourth Amendment Rights. Having

reviewed that recommendation for clear error, and finding none, the court ADOPTS IT AS ITS

OWN. Count 2 is DISMISSED WITHOUT PREJUDICE. While Plaintiffs argue Count 2 is a §

1983 claim for their own rights as parents, that claim is not reflected in their complaint, which is

the operative pleading. Should Plaintiffs wish to amend their complaint to add such a claim, they

may seek the court's Icave to so do.

Plaintiffs also object strenuously to Judge Meyers’ recommendation that this court allow

Plaintiffs to bring six claims under North Carolina state law. Plaintiffs instead explain that they

intended to allege constitutional violations and bring those claims under 42 U.S.C.§ 1983. See,

e.g, DE 12 at 7 (“Counts 1, 7, 9: Casework Misconduct as Constitutional Violations”), 9

(“Emotional Distress and Defamation as § 1983 Claims”), 10 (“Conspiracy Claims Under §

1983”), 14 (CRITICAL DISTINCTION: § 1983 VERSUS STATE TORT LAW”), & 15

(“Plaintiffs respectfully request this [cJourt . . . reject conversion to state torts allowing all § 1983

claims to proceed... .”). This leaves the court in something of a tricky position. Judge Meyers

has recommended allowing certain of Plaintiffs’ claims, such as “Failure to Reasonably Adhere to

NC Child Welfare Policy,” DE 1-1 at 16, “Defamation,” DE 1-1 at 22, or “Infliction of Emotional

Distress,” DE 1-1 at 22, to proceed as the state law claims which they naturally, and appropriately,

appear to be. Plaintiffs have rejected that suggestion and instead claim they should be allowed to

bring these claims under 42 U.S.C.§ 1983. DE 12. As such, the court will consider de novo

whether Plaintiffs’ remaining claims, which they insist are § 1983 claims, are frivolous.

The court begins with “Count 1: Investigatory and Administrative Conduct,” which Judge

Meyers recommended allowing as a non-frivolous claim when construed as a negligence claim

under North Carolina law. As an initial note, “Investigatory and Administrative Conduct” is not a

cognizable cause of action; it 1s, at best, a description of the underlying facts. Plaintiffs bring this

claim against Defendants “lranklin County, Joy Lassiter, Lavenia Maxwell, Jeanette Richardson,

Tearra Hamlett, Cheryl Rader and any other agents who are found to be involved in the

investigation, casework and administrative process,” for those Defendants’ allegedly “flagrantly

deficient casework shown by multiple policy violations.” DE 1-1 at 1, 4 19. As Judge Meyers

correctly noted, Count | “do[es| not identify the specific legal standard under which it purport[s]

claims arise.” DE 12 at 10. And Judge Meyers is also correct that Count 1 has some hallmarks of

a negligence claim; for onc, it accuses the named Defendants of failing to act in a “reasonable”

manner or as expected of “reasonable official[s].” See, e.g, DE 1-1 9 7, 8. But Plaintiffs insist

Count 1 is a § 1983 claim alleging “deliberate fabrication [which] violates Due Process,” and

“Fourth Amendment violations through false certifications.” DE 12 at 7, 8.

The court will not force Plaintiffs to bring a claim they have disavowed and, as such, rejects

Judge Meyers’ recommendation that this be construed as a state law negligence claim. The court

will, instead, construe Count 1 as a § 1983 claim alleging a violation of Plaintiffs’ Fourteenth

Amendment “right not to be deprived of liberty as a result of the fabrication of evidence by a

government officer acting in an investigating capacity.” See Washington v. Wilmore, 407 F.3d

274, 282 (4th Cir. 2005). But because “a local government may not be sued under § 1983 for an

injury inflicted solely by its employees or agents,’ Count | is DISMISSED as to defendant

Franklin County. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

Next is Count 6: lailure to Train and/or Supervisory Liability, which Plaintiffs bring

against Defendants “}‘ranklin County, Director Nikki Perry, Assistant Director Andy Payne[,] and

supervisors [famett and Richardson.” D} 1-1 at 14. Judge Meyers recommends bifurcating Count

6 and allowing it as both a § 1983 Monell liability and as a state law negligent supervision claim.

Because “[a] municipality cannot be held liable under § 1983 on a respondeat superior theory . . .

for an injury inflicted solely by its employces or agents,” so-called Monell liability will attach

under § 1983 “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.”

Monell, 436 U.S. at 691, 94. “|N]egligent supervision [is] . . . an independent tort based on the

employer's liability to third parties,” under which liability attaches when an “incompetent

employee commit/s| a tortious act resulting in injury to plaintiff and that prior to the act, the

employer knew or had reason to know of the employce's incompetency.” Smith v. Privette, 128

N.C. App. 490, 494 95, 495 S.15.2d 395, 398 (1998) (citations omitted). Plaintiffs have not

specifically objected to this: instead, their objections contain arguments for a Monell liability

allegation alongside their broader arguments that Judge Mcyers thematically erred by “converting

constitutional claims to state torts.” See DE 12 at 13, 14.

Again, the court will not force Plaintiffs to bring claims they have explicitly disavowed

and, therefore, rejects Judge Meyers’ recommendation that it construe Count 6 partly as a state law

negligeat supervision claim. ‘Ihe court will construe Plaintiffs’ Count 6 as a § 1983 claim alleging

Monell liability against l‘ranklin County. But because “an individual employee cannot be liable

under a Monell theory of liability,” Count 6 is DISMISSED as to Defendants Perry, Payne, Hamett,

and Richardson. See A“A. v. Cnty. of San Bernardino, No. EDCV20283JFWSHKX, 2021 WL

4706716, at *11 n.16 (C.D. Cal. June 24, 2021) (collecting cases).

Next is Count 7: lailure to Reasonably Adhere to NC Child Welfare Policy, which

Plaintiffs bring against all Defendants. DI: 1-1 at 16. Judge Meyers recommends combining this

with Counit 1 and construing the two as a state law negligence claim. As explained above, Plaintiffs

object to that recommendation and insist that this is a § 1983 claim. However, as Judge Meyers

correctly explained regarding Counts | and 7, “i]t is unclear whether each of these counts is

intended to represent a separate Icgal claim, or is simply intended to allege additional facts or legal

theories that may sound in other Icgal claims.” DE 8 at 10. As such, the court will combine Count

7 into Count 1’s § 1983 claim alleging a violation of Plaintiffs’ Fourteenth Amendment “right not

to be deprived of liberty as a result of the fabrication of evidence by a government officer acting

in an investigating capacity.” See Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005). To

the extent Plaintiffs intended Count 7 to be a separate § 1983 claim arising out of the Defendants’

alleged failure to “Reasonably Adhere to NC Child Welfare Policy,” DE 1-1 at 16, that claim is

DISMISSED, see Riccio v. Cnty. of lairfax, Va., 907 F.2d 1459, 1466 (4th Cir. 1990) (“It is well

established that the mere existence of a state rule does not necessarily create an interest protectable

by the Due Process Clause. and that, therefore, a state does not necessarily violate the Constitution

every time it violates one of its rules.”).

Next is Count 8: Conspiracy; Plaintiffs do not identify the Defendants against whom they

bring this claim. See DE 1-1 at 18. Judge Meyers recommends construing this as a state law

conspiracy claim. DE 8: sce also Privette v. University of North Carolina, 96 N.C.App. 124, 139,

385 S.E.2d 185, 193 (1989) (stating the clements of a civil conspiracy). Plaintiffs strongly object

to that recommendation and insist that Count 8 makes out a § 1983 conspiracy claim. The court

will accept Plaintiffs’ description of the claim they intended to bring and review it for frivolity.

“To establish a civil conspiracy under § 1983, [Plaintiffs] must present evidence that the

[Defendants] acted jointly in concert and that some overt act was done in furtherance of the

conspiracy which resulted in [{Plaintiffs’] deprivation of a constitutional right.” Hinkle v. City of

Clarksburg, W.Va. 81 ¥.3d 416, 421 (4th Cir. 1996). Plaintiffs have not alleged sufficient facts

to support sucha claim. Instead. Plaintiffs have simply assumed a conspiracy based on the number

of alleged actors and those actors’ association with one another. See DE 1-1 § 113 (‘Considering

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the number of people involved and how everyone was aware of each other's conduct and they all

stood in agreement of cach other .. . , a conspiracy to deprive the Plaintiffs of their rights was very

likely underfoot.”). But such an assumption is insufficient; “[mJere similarity of conduct by

various persons and the fact that they have associated with each other and have assembled together

and discussed common aims and interests is not necessarily sufficient to prove a conspiracy.” See

Precision Piping & Instruments, Inc. v. E.I. duPont De Nemours & Co., 707 F. Supp. 225, 229

(S.D.W. Va. 1989). Accordingly, Count 8 is DISMISSED.

Finally, the court will address Count 9: Fraud, DE 1-1 at 20, Count 10: Defamation, DE 1-

1 at 22, and Count 11: Infliction of ‘motional Distress, DE 1-1 at 22, together. As explained

above, Judge Meyers has recommended construing each of these as the tort claims with whom

they share a name. Plaintiffs object, insisting that each of these is a § 1983 claim. See DE 12 at 7

(“Counts 1, 7, 9: Casework Misconduct as Constitutional Violations”) & 9 (“Emotional Distress

and Defamation as § 1983 Claims”). As Plaintiffs appear to combine Count 9 with Counts | and

7, the court will DISMISS it for the same reasons it did Count 7. Additionally, Counts 10 and 11

are DISMISSED because “Section 1983 imposes liability for violations of rights protected by the

Constitution, not for violations of duties of care arising out of tort law.” Baker v. McCollan, 443

U.S. 137, 146 (1979); see also Garrett v. Aube, No. CV 8:18-1449-MGL-JDA, 2018 WL 3628848,

at *2 (D.S.C. May 31, 2018). report and recommendation adopted, No. CV 8:18-1449-MGL-JDA,

2018 WL 3619823 (D.S.C. July 30, 2018) (“Although state law provides for a right of action for

slander or defamation, an alleged act of defamation of character or injury to reputation is not

actionable: under 42 U.S.C. § 1983.) (citing Paul v. Davis, 424 U.S. 693, 697-710 & nn. 3-4

(1976); Blanco v. Success Acad. Charter Schs., Inc., 722 F. Supp. 3d 187, 217 n.19 (S.D.NLY.

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2024) (“There is no recognized claim for intentional infliction of emotional distress under section

1983.”) (citation omitted).

IV. Conclusion

Thus, all claims on behalf of the Minor Children, specifically including Count 2, are

DISMISSED WITIIOUT PREJUDICE. The court has accepted Judge Meyers’ recommendations

and liberally construed Count 3 as a § 1983 claim alleging a Fourth Amendment violation arising

out of the search of Plaintiffs” motel room, Count 4 as a § 1983 claim alleging a Fourteenth

Amendment violation, and Count 5 as a § 1983 claim alleging a First Amendment retaliation claim.

The court has rejected Judge Meyers’ recommendation as to Counts | and 6. Instead, the court

has liberally construed Count | as a § 1983 claim alleging a violation of Plaintiffs’ Fourteenth

Amendment right not to be deprived of liberty as a result of the fabrication of evidence by a

government officer during an investigation and Count 6 as a § 1983 claim alleging Monell liability.

Each of those claims clears the frivolity bar set out in 28 U.S.C. § 1915(e)(2)(B). All remaining

claims do not; as such, Counts 7, 8, 9, 10, and 11 are DISMISSED.

SO ORDERED this ylk __ day of June, 2026.

a oy aes ie _

RICHARD ©. MYERS

CIUEF UNITED STATES DISTRICT JUDGE

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