Opposition Brief — Langdon v. Swain

No. 02-12

In The

Supreme Court of the United States

CHRISTOPHER LANGDON,

Petitioner,

V.

J.J. SWAIN, F.D. MARTIN, JACK MURDOCK, LYNDO TIPPETT,

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, ROY

COOPER, NORTH CAROLINA DEPARTMENT OF JUSTICE, AND

STATE OF NORTH CAROLINA,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

ROY COOPER

North Carolina Attorney General

Robert O. Crawford, III,* Special Deputy Attorney General

Lisa C. Glover, Assistant Attorney General

N.C. Attorney General’s Office

Transportation Section

1505 Mail Service Center

Raleigh, NC 27699-1505

Telephone: (919) 733-3316

*Counsel of Record

QUESTIONS PRESENTED —

Plaintiff presents eleven questions for review in his

Petition (Pet. pp. i - iii), but presents only six distinct is-

sues for argument which consolidate several of the ques-

tions presented. Defendants thus propose six questions

presented that correspond to Plaintiff's argument.

I. Whether Plaintiff's Complaints were properly

dismissed as frivolous and malicious?

II. Whether Plaintiff's takings claim was prop-

erly brought against employees sued in their

individual capacity?

III. Whether Plaintiff’s “papers” were not liber-

ally construed?

IV. Whether the District Court abused its discre-

tion by denying Plaintiff's Motion for Default

Entry and granting Defendants’ Amended

Motions for Extensions of Time?

V. Whether the doctrine of res judicata was prop-

erly applied herein?

VI. Whether the District Court abused its discre-

tion by denying Plaintiff's motion to recuse?

ii

LISTING OF PARTIES

Petitioner failed to list all Respondents in his Petition.

The Respondents are J.J. Swain; F.D. Martin; Jack Mur-

dock; Lyndo Tippett, Secretary of the North Carolina

Department of Transportation; the North Carolina De-

partment of Transportation; Roy Cooper, North Carolina

Attorney General; the North Carolina Department of Jus-

tice; and the State of North Carolina. As stated by Peti-

tioner, Dave Henderson is not a party to this case, as he

was never served with a Complaint.

ec SS

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ... 2... 0c eccerevceetnes i

LISTING OF PARTIR 0)... oo i oe ae eke ee ii

TABLE OF CONTENTS .........0eseescseeseeee iii

TABLE OF AUTHORITIES ............. os are Vv

CITATIONS OF LOWER COURT OPINIONS ....... 1

JURISDICTION OF THIS COURT . 20652. ee. 1

STATUTORY PROVISIONS INVOLVED ........... 2

STATEMENT OF THECASE .........-2.00000000- 2

PIE wv vs cb bones hss bvcase ie 5

I. Plaintiff’s Complaints were properly dismissed as

frivolous and malicious ...,............++6. 6

II. There is no compelling reason for this Court to

review a potentially erroneous alternative holding

of the Fourth Circuit in an unpublished opinion

III.

IV.

VI.

iv

Plaintiff has presented no evidence that his “pa-

pers” were not liberally construed ........... 9

The District Court did not abuse its discretion by

denying Plaintiff's Motion for Default Entry and

granting Defendants’ Amended Motions for Ex-

NL OE TUE. oi ds RS eee 10

Plaintiff's Complaints were properly dismissed as

frivolous on the grounds of res judicata and/or

failure to state a claim and qualified immunity

The District Court did not abuse its discretion by

denying Plaintiff's Motion to Recuse ........ 22

ee Et , ere rer erro rer rem cae ht 25

PE + 5 he obs ark ee ee 27

v

TABLE OF AUTHORITIES

Cases

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40

CUO in oe ec ccscecenclicth bc cotewmeeeneenoaes 20

DOM io icaks vinkvs isn cnee ene 16

Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999) ...... 6

Better Gov't Bureau v. McGraw (In re Allen), 106 F.3d 582

(4th Cir. 1997), cert. denied, 522 U.S. 1047, 118 S. Ct. 689,

139 L.. Bd. 2 GSO (ISIE) onc ev ke seis ssenesevces 21

Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993)

< kde Sk ha de eeatn wa ers ae en ae nae Re 16

Chambers v. NASCO, 501 U.S. 32 (1991) ............. 7

Draper v. Coombs, 792 F.2d 915 (9th Cir. 1986) ...... 11

Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d

S62 (2rd Clr, S000) io. sc ss cksceewsauseisae ties 7,15

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989), cert. denied,

494 U.S. 1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613 (1990)

vi

Grayson v. Mayview State Hosp., 293 F.3d 103 (3rd Cir.

y 4 nn Premise Perr yr eer ee re) 6

Gregory v. Chehi, 843 F.2d 111 (3rd Cir. 1988) ....... 19

Haferv. Meio, Fiz. US. Zi G91) oe BAGS 8

Haines v. Kerner, 404 U.S. 519 (1972) ...........0005. 9

Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied,

454 U.S. 1141, 102 S. Ct. 999, 71 L. Ed. 2d 293 (1982)

Harbert Int'l v. James, 157 F.3d 1271 (11th Cir. 1998) 8, 20

Mallard v. United States Dist. Court for Southern Dist., 490

Kk SO IO) Cone sd ehudaaaes en eeee eee 7

Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. Partner-

Sp, SEF US. Tee RP os sd eA ska 12, 13

Sugarbaker v. SSM Health Care, 187 F.3d 853 (8th Cir.

1999), cert. denied, 528 U.S. 1137, 120 S. Ct. 980, 145 L.

EMR, Gee Fe CED vias 5 cb We Sen ee enaes 12, 13

United States v. Borromeo, 945 F.2d 750 (4th Cir. 1991)

Vii

United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998),

cert. denied, 526 U.S. 1137, 119 S. Ct. 1793, 143 L. Ed. 2d

Pv Tt. Peer error rerewr eyes eerie: 23, 24

Statutes

PONIBA.. GEG oi ks HERE A eni s SHESRaS sy BRONTE 1

2B US. § TSG: «ds cha acide ciAWee sh beeen ain 2,3

POUR, § TSS sic ees Gein 3

FO UIBE.. GED ncn cine cecchsclatvoupdsiecseeees 2

y. BEALS b. . Cera Peete. ae Pow aya 2, 6,7

ye BSR OT .. eerreer erie el fee 2, 23, 24

42 USL. GRR es ie as aes 2,8, 19

Federal Rules of Civil Procedure

BM OO cance. ives ies basen sheesh eee eee eens 11

Vili

Rules of the Supreme Court

1

CITATIONS OF LOWER COURT OPINIONS

None of the opinions and orders entered by the lower

courts were published. The opinions and orders at issue

are: (1) Langdon v. Swain, No. 1:01CV139 (W.D.N.C. July

27, 2001) (order granting Defendants’ amended motions

for extension of time to answer and denying Plaintiff's

motion for default entry); (2) Langdon v. Tippett, No.

1:01CV107, and Langdon v. Swain, No. 1:01CV139

(W.D.N.C. Aug. 6, 2001) (order consolidating and dis-

missing cases, and separate order denying Plaintiff's

motions for change of venue and to recuse); (3) Langdon

v. Swain, Nos. 01-1975 and 01-2019 (4th Cir. Mar. 12,

2002).’

JURISDICTION OF THIS COURT

The opinion of the Fourth Circuit Court of Appeals

was entered on February 20, 2002, and refiled March 12,

2002 to correct a technical error. Petitioner filed a timely

petition for rehearing and rehearing en banc, which was

denied April 11, 2002. This Court may review on a writ

of certiorari the judgment at issue pursuant to 28 U.S.C.

§ 1254(1).

'This opinion may also be found at Langdon v. Szvain, 2002 U.S. App.

LEXIS 2680 (4th Cir. Feb. 20, 2002).

2

STATUTORY PROVISIONS INVOLVED

The principal statutory provisions involved in this

case are 42 U.S.C. § 1983, 28 U.S.C. § 1915, and 28 U.S.C.

§ 455.

STATEMENT OF THE CASE

Plaintiff filed case 1:01CV107 against Defendants

Lyndo Tippett, North Carolina Department of Transpor-

tation (NCDOT), Roy Cooper, North Carolina Depart-

ment of Justice, and the State of North Carolina in United

States District Court, Western District of North Carolina,

on May 21, 2001, alleging that numerous statutes of the

state of North Carolina relating to condemnation of land

and/or statutes of limitation are unconstitutional. Plain-

tiff’s basis for jurisdiction in federal court appears to have

been the existence of a federal question.” 28 U.S.C. §

1331. Defendants timely filed Answer July 26, 2001, as-

serting, inter alia, the doctrine of res judicata as a defense.

Plaintiff filed case 1:01CV139 against three current or

former NCDOT employees, J.J. Swain, Jack Murdock, and

F.D. Martin, in United States District Court, Western Dis-

*Plaintiff asserts in his Petition that this suit was brought pursuant to

42 US.C. § 1983, and that 28 U.S.C. § 1343 was one basis for

jurisdiction. (Pet. p. 2) However, neither statute was mentioned in

Plaintiff's Complaint.

3

trict of North Carolina, on June 18, 2001. Plaintiff sued

the Defendants in their individual capacities, ostensibly

for a taking of his property through inverse condemna-

tion, and sought $117,179.00 in compensatory damages

for the taking of his real property and his business;

$200,000.00 in “compensatory” damages for the depriva-

tion of his constitutional rights and pain and suffering;

$50,000.00 in legal expenses; and $300,000.00 in punitive

damages. Plaintiff's basis for jurisdiction in federal court

appears to have been the existence of a federal question

and diversity of citizenship. 28 U.S.C. § 1331, 1332.

Defendants Swain and Martin were served with the

Complaint on June 29, 2001, while Defendant Murdock

was served on June 28, 2001. On July 19, 2001, Defen-

dants jointly served a “Motion for Extension of Time to

Answer.” Defendants Swain and Martin (together) and

Defendant Murdock (alone) served separate documents

entitled “Amended Motion for Extension of Time to An-

swer” onJuly 20, 2001, after Defendants’ counsel realized

that the initial Motion for Extension of Time was served

one day after time to serve such pleading had expired as

to Defendant Murdock. Defendant Murdock’s amended

motion acknowledged that time had expired, but stated

that Defendant Murdock would be “greatly prejudiced

by a default judgment.” (Pet. App. p. 102)

Plaintiff served a “Motion for Default Entry by the

Clerk of Court” on July 19, 2001. Defendants’ Motion for

4

Extension of Time and Amended Motions for Extension

of Time, and Plaintiff's Motion for Default Entry, were all

filed in the Clerk’s Office on July 23, 2001. On July 27,

2001, Magistrate Judge Max O. Cogburn granted Defen-

dants’ Amended Motions for Extension of Time and de-

nied as moot Plaintiff's Motion for Default Entry. Defen-

dants were granted up to and including August 17, 2001,

to answer Plaintiff's Complaint. Plaintiff timely appealed

this Order, which appeal was assigned case number 01-

1975 by the Fourth Circuit Court of Appeals.

On August 6, 2001, prior to the time in which

Defendants were required to file answer in case

1:01CV139, District Judge Lacy H. Thornburg entered

Orders consolidating cases 1:01CV107 and 1:01CV139,

dismissing both cases sua sponte, and denying Plaintiff's

motions for change of venue and to recuse. Plaintiff

timely appealed these Orders, which appeal was as-

signed case number 01-2019 by the Fourth Circuit Court

of Appeals.

The Fourth Circuit consolidated the two appeals.

Plaintiff presented three issues for appeal: (1) whether

the July 27, 2001 order granting Defendants’ Amended

Motion for Extension of Time was proper; (2) whether

Judge Thornburg should have recused himself from these

cases; and (3) whether the August 6, 2001 order dismiss-

ing Plaintiff's Complaints sua sponte was proper. The

Court of Appeals entered an opinion affirming each or-

5

der of the lower court on February 20, 2002, which opin-

ion was amended to correct a technical error on March

12, 2002. The Court of Appeals also denied several mo-

tions filed by Plaintiff in that court: a Motion to Strike

the Appellee’s informal brief; four Motions for Sanctions;

and a Motion for Default Judgment.

ARGUMENT

Before proceeding, Respondents feel obliged to note

that Petitioner has failed to “amplify[] the reasons relied

on for allowance of the writ,” as required by Rule 14(1)(h)

of the Rules of this Court. Petitioner has not argued in

his Petition that any of the reasons for granting a petition

for writ of certiorari, contained in Rule 10 of the Rules of

this Court, apply herein. Instead, Petitioner treats his

Petition as if it were his Brief on the Merits for Petitioner.

Respondents will address the contentions in the Petition,

‘Thus, contrary to Plaintiff's assertion, these motions were not

“ignored” by the Circuit Court. (Pet. p. 3) Plaintiff also makes

reference in his Petition (pp. 16, 20) to Defendants’ perceived fa» =

to respond to his motions for sanctions. Pursuant to Fourth Circuit

Local Rule 27(d), Defendants were not required to respond to these

motions. Plaintiff's assertion that such failure to respond constitutes

an admission of the allegations contained in his motions for sanctions

is meritless. Finally, Defendants object to Plaintiff's placement of

“edited” versions of his informal briefs and motions for sanctions in

the Appendix. (Pet. App. pp. 114, 120, 129, 134, 141) Plaintiff should

have included each document in its entirety, or excluded them

altogether.

6

but will also address whether there are any “compelling

reasons” for granting the petition in this case. Rule 10.

I. Plaintiff’s Complaints were properly dis-

missed as frivolous and malicious

Plaintiff first argues it was improper for the district

court to dismiss his Complaints pursuant to 28 U.S.C. §

1915(e)(2), because that statute only applies to Com-

plaints filed by prisoners. Defendants do not dispute that

Plaintiff was not a prisoner at the time his Complaints

were filed, anc: that Plaintiff has not requested in forma

pauperis status.

It appears the Fourth Circuit has never squarely ad-

dressed the issue of whether 28 U.S.C. § 1915(e)(2) ap-

plies to non-prisoner, non-in forma pauperis Complaints.

Plaintiff is correct that other circuits have held that the

statute only applies to in forma pauperis claims. See Gray-

son v. Mayview State Hosp., 293 F.3d 103, n. 10 (3rd Cir.

2002); Benson v. O'Brian, 179 F.3d 1014, 1017 (6th Cir.

1999) (citing cases from 5th, 8th and 9th Circuits). If the

Fourth Circuit’s opinion herein conflicts with that of

other Circuits, such conflict is immaterial as the opinion

herein was an unpublished opinion with little preceden-

tial value.

7

Further, though both lower courts did mention 28

U.S.C. § 1915 in their orders herein, federal courts have

the inherent power, independent of the application of

that statute, to dismiss Complaints as frivolous or mali-

cious. The federal courts have inherent powers to “fash-

ion an appropriate sanction for conduct which abuses the

judicial process,” though they must exercise those pow-

ers “with restraint and discretion.” Chambers v. NASCO,

501 U.S. 32, 44-45 (1991). “[T]here is little doubt” that the

federal courts have the inherent power to dismiss a case

as frivolous or malicious. Mallard v. United States Dist.

Court for Southern Dist., 490 U.S. 296, 307-08 (1989); see also

Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d

362, 364 (2nd Cir. 2000) (affirming sua sponte dismissal of

pro se plaintiff's frivolous complaint).

Both the District and Circuit Court herein found Plain-

tiff’s Complaints to be frivolous and malicious, and dis-

missed the Complaints on those grounds, witha (perhaps

erroneous) citation to 28 U.S.C. § 1915. However, Plain-

tiff fails to show any abuse of discretion in the courts’

exercise of their inherent powers to dismiss his Com-

plaints as frivolous or malicious, and has presented no

compelling reason why his frivolous lawsuits should be

the subject of review in this Court. See Rule 10.

8

II. There is no compelling reason for this Court

to review a potentially erroneous alternative

holding of the Fourth Circuit in an unpub-

lished opinion

The Fourth Circuit noted in its opinion herein that

Langdon v. Swain (1:01CV139), a case brought against

three NCDOT employees in their individual capacities,

was subject to dismissal for failure to state a claim upon

which relief could be granted “because takings actions

sound against governmental entities rather than individ-

ual state employees in their individual capacities.”* (Pet.

App. p. 18(a)) However, it appears the court may have

overlooked Plaintiff's assertions that his claim was based

on 42 U.S.C. § 1983, under which it is permissible to sue

a state official in his individual capacity upon an allega-

tion that the official, acting under color of law, deprived

the plaintiff of a federal right, see Hafer v. Melo, 502 U.S.

21 (1991), though the defense of qualified immunity is

available to the official, see id.; see also Harbert Int'l v.

James, 157 F.3d 1271 (11th Cir. 1998) (qualified immunity

may protect official from takings claim brought against

official in his individual capacity).

l

‘Plaintiff misconstrues the Fourth Circuit’s opinion. The court did

not state that takings claims “are not allowed in federal court against

state officials,” (Pet. p. 6) but rather limited its opinion to the

situation presented here: state employees sued in their individual

capacity.

9

Even if Plaintiff may have stated a claim upon which

relief could be granted, the Fourth Circuit and District

Court both held that Plaintiff's claim against the indivi-

dual employees was also barred by res judicata and was

a frivolous claim subject to sua sponte dismissal, without

a “hearing” as Plaintiff now requests. (Pet. p. 7) The

court’s power to dismiss Plaintiff's claim sua sponte as

frivolous is discussed above in section I; the application

of res judicata is discussed below in section V. As discus-

sed therein, Plaintiff's Complaint was properly dismissed

by the lower courts.

Plaintiff has failed to present a compelling reason why

this Court should grant his Petition, based on a poten-

tially erroneous alternative holding of the Fourth Circuit,

presented in an unpublished opinion with little preceden-

tial value. See Rule 10.

III. Plaintiff has presented no evidence that his

“papers” were not liberally construed

Plaintiff's third argument is centered around the

maxim that the pleadings and papers of pro se litigants

should be liberally construed. See, e.g., Haines v. Kerner,

404 U.S. 519, 520 (1972) (pro se complaint held to “less

stringent standards than formal pleadings drafted by law-

yers”). Plaintiff asserts this maxim was violated herein

because (1) the lower courts “never stated that [his] pa-

pers had been liberally construed;” (2) no one provided

10

him with information about attorneys who provide ser-

vices pro bono; (3) oral argument of pro se appeals is

disfavored by the Fourth Circuit; and, (4) his motion to

extend time to file a petition for rehearing in the Fourth

Circuit was denied.

There is no requirement, constitutional or otherwise,

that a lower court must state in its opinion that a pro se

party’s papers were “liberally construed;” that a pro se

party be provided with a list of pro bono attorneys; that

pro se parties are entitled to oral argument; or that pro se

parties are entitled to more time to file petitions for re-

hearing than parties who retain an attorney. Plaintiff has

presented no other evidence or argument showing that

his “papers” were treated improperly by any of the lower

courts, and has presented no compelling reason why this

alleged impropriety provides the basis for a grant of his

Petition for writ of certiorari. See Rule 10.

IV. The District Court did not abuse its discretion

by denying Plaintiff’s Motion for Default En-

try and granting Defendants’ Amended Mo-

tions for Extension of Time

Plaintiff next argues the District Court erred by grant-

ing Defendant’s Amended Motions for Extension of Time

filed in Langdon v. Swain, 1 :(01CV139. As discussed above,

Defendants Swain, Martin, and Murdock jointly served

a Motion for Extension of Time to Answer on July 19,

11

2001. However, Defendant Murdock’s Motion for Exten-

sion of Time was served one day late.’ Thus, on July 20,

2001, Defendants Swain and Martin (together) and De-

fendant Murdock (alone) served Amended Motions for

Extension of Time, which recognized the mistake that

had been made.

At approximately the same time, Plaintiff served a

Motion for Default Entry and a Correction of Motion for

Default Entry. Defendants’ July 19 and 20 motions, and

Plaintiff's motions for default entry, were all filed in the

Clerk’s office on July 23, 2001.

Plaintiff asserts that on these facts, default entry was

mandatory. (Pet. pp. 10-11) However, given that all the

motions arrived in the Clerk’s office on the same day,

Plaintiff cannot show that Defendants had “failed to

plead or otherwise defend ” before his motions for de-

fault entry were filed. Fed. R. Civ. P. 55(a). Default en-

try was thus not appropriate, and the district court did

not abuse its discretion by denying Plaintiff's motion. See

Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986) (dis-

trict court did not abuse discretion by denying motion for

*Plaintiff states on page 21 of his Petition that “the defendants in

Langdon v. Swain, Martin and Murdock are in default,” thus implying

that all three Defendants filed untimely Motions for Extension of

Time. (Pet. p. 21) This is simply not true, as the July 19, 2001 Motion

for Extension of Time was timely filed as to Defendants Swain and

Martin.

12

default entry that was filed on same day as late answer).

In his order granting Defendants’ Amended Motions

to Extend Time, the Magistrate Judge found that “defen-

dants’ error in seeking the proposed extensions was

based upon a misunderstanding as to when defendants

were served, and that defendants took prompt remedial

action, [such that] the court attributes the error to excus-

able neglect and will grant the proposed extensions,

which moots plaintiff's motions.” (Pet. App. p. 2) Mo-

tions for extensions of time filed “after the expiration of

the specified period” may be permitted “where the fail-

ure to act was the result of excusable neglect.” Fed. R.

Civ. Proc. 6(b)(2).

Excusable neglect “is a somewhat ‘elastic concept’ and

is not limited strictly to omissions caused by circum-

stances beyond the control of the movant,” but may also

“extend to inadvertent delays.” Pioneer Inv. Serv. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380,392 (1993)

(footnotes omitted). Courts may thus accept “late filings

caused by inadvertence, mistake or carelessness.” Id. at

388. The late filing of the motion in the instant case was

due to neglect: the failure to correctly calculate the dead-

line for filing. See Sugarbaker v. SSM Health Care, 187 F.3d

853, 856 (8th Cir. 1999) (filing of motion one day late due

to miscalculation of deadline deemed result of “neglect”),

cert, denied, 528 U.S. 1137, 120S. Ct. 980, 145 L. Ed. 2d 931

(2000). However, the neglect must also be deemed

= Ga»,

13

“excusable” before relief can be granted. See id.; see also

Pioneer, 507 U.S. at 395.

The determination of whether neglect is excusable is

an “equitable” determination, and the court should con-

sider “the danger of prejudice to the [non-movant], the

length of the delay and its potential impact on judicial

proceedings, the reason for the delay . . ., and whether

the movant acted in good faith.” Pioneer, 507 U.S. at 395.

Because the length of delay herein was only one day,

and because timely Motions to Extend Time had been

filed with respect to two of the three Defendants, there

was no danger of prejudice to Plaintiff and no

detrimental impact to the judicial proceedings. See

Sugarbaker, 187 F.3d at 856. Further, the delay was due

to a misunderstanding, and was promptly remedied by

the Defendants, thus showing good faith.

Plaintiff's allegations of bad faith® on the part of the

Defendants concern, for the most part, alleged conduct of

the Defendants that has no relation to the untimely Mo-

tion for Extension of Time. (Pet. pp. 17 - 21) Plaintiff's

more relevant allegations - regarding Defendant Mur-

‘Plaintiff also alludes to some undefined prejudice to him that

resulted from the one day delay. (Pet. p. 21) However, as Plaintiff

has not specified the alleged prejudice, Defendants have nothing

concrete to respond to and will not address this facet of Plaintiff's

argument.

14

dock’s handling of his Complaint and Plaintiff's contact

with Defendants’ counsel (Pet. pp. 14, 16) - also do not

show bad faith in Defendant Murdock’s failure to timely

file an extension. Those allegations merely show, as De-

fendants contend, that Defendants’ counsel mistakenly

filed the Motion for Extension of Time one day late as to

Defendant Murdock, because of confusion over the date

he was served and consequent miscalculation of the

deadline for replying.

“A district court’s ruling on excusable neglect is re-

viewed for abuse of discretion.” United States v. Borromeo,

945 F.2d 750, 754 (4th Cir. 1991). The Fourth Circuit appl-

ied that standard below and found no abuse of discre-

tion.

As the Fourth Circuit applied “a properly stated rule

of law,” and as Plaintiff presented no compelling reason

for review of the treatment of the motions at issue, this

Court should refrain from granting Plaintiff's Petition on

this ground. See Rule 10.

V. Plaintiff's Complaints were properly dis-

missed as frivolous on the grounds of res judi-

cata and/or failure to state a claim and quali-

fied immunity

Plaintiff's fifth argument concerns the lower court's

application of res judicata. Plaintiff rehashes several argu-

15

ments in this section that are responded to elsewhere.’

Plaintiff also argues that the defense of res judicata should

“have failed” because (1) the district court did not hold a

hearing; (2) “the defendants in Langdon v. Swain filed no

answer” and the District Court improperly raised the

defense of res judicata; (3) the district court did not cite the

“N[orth] C[arolina] law of res judicata;” (4) the entire re-

cord of the case upon which res judicata was based was

not submitted to the district court; (5) the judgment upon

which res judicata was based was not a valid judgment;

and, (6) the privity element of res judicata was not satis-

fied.’ Defendants will respond to these contentions in

turn.

(1) The District Court dismissed Plaintiff's Com-

plaints in both Langdon v. Tippett (1:01CV107) and Lang-

don v. Swain (1:01CV139) sua sponte, without any motion

to dismiss in front of the court. A sua sponte dismissal,

without a formal hearing, is appropriate when the court

finds the Complaint to be frivolous. Fitzgerald, 221 F.3d

at 363.

(2) A motion for extension of time filed by the Defen-

dants in Langdon v. Swain was granted, thus extending

‘Plaintiff's arguments (b) and (c) on page 23 of his Petition

correspond to sections III and I of this Response, respectively.

"These 6 arguments are taken from Plaintiff's arguments (a), (d) and

(e), (£), (g), (i) - (k), and (h), respectively. (Pet. pp. 22 - 28)

|

16

their time to answer until August 17, 2001. However, the

Defendants did not file an answer in that case because the

District Court, sua sponte, dismissed the Complaint on

August 6, 2001. The court also consolidated Langdon v.

Swain with Langdon v. Tippett. An answer had been filed

in the latter case, in which the doctrine of res judicata was

raised as an affirmative defense. Thus, the District Court

did not raise the defense of res judicata on its own motion,

as Plaintiff states. (Pet. p. 23)

(3) The District Court in its order dismissing Plain-

tiff’s Complaints discussed the law of res judicata, but did

not cite specifically to North Carolina case law. See Artis

v. Norfolk & Western Ry., 204 F.3d 141, 147 (4th Cir. 2000)

(federal court must “follow state preclusion law to deter-

mine the res judicata effect of a state court judgment”).

However, the cases cited by the District Court espouse

the same principles that North Carolina courts follow

when applying res judicata: that a final judgment on the

merits in a prior case bars a later suit “involving the same

claim between the same parties or those in privity with

them,” as well as “relitigation of all matters that were or

should have been adjudicated in the prior action.” Bock-

weg v. Anderson, 333 N.C. 486, 491-92, 428 S.E.2d 157, 161

(1993). Further, the Fourth Circuit did base its decision

regarding res judicata on North Carolina caselaw.

(4) Defendants raised the defense of res judicata in

their Answer in Langdon v. Tippett (1:01CV107) with a

17

reference to Langdon v. NCDOT, Polk County (NC), 98

CVS 139, and its subsequent appellate history,’ but did

not attach to their Answer any of the documents filed in

that previous case. However, Plaintiff's Complaint and

attachments filed in Langdon v. Swain showed on their

face that res judicata was applicable.

Paragraph 25 of the Complaint states that Plaintiff

filed a complaint against NCDOT in Polk County, NC,

given case number 98 CVS 139, and also filed a second

suit with the North Carolina Industrial Commission (Pet.

App. p. 81); paragraphs 26 through 28 reference a release

signed by Plaintiff that terminated the Industrial

Commission case and that was attached to Plaintiff's in-

stant Complaint as Exhibit 10 (Pet. pp. 81 - 82). Plaintiff

did not include the release in his Appendix; thus, Defen-

dants have included it in their Appendix herein. The

release clearly states that case 98 CVS 139, Langdon v.

NCDOT, was an “inverse condemnation claim.” (Res.

App. p. la) Paragraph 47 of the Complaint states that

NCDOT won a motion for summary judgment in case 98

CVS 139. (Pet. App. p. 91)

Thus, Plaintiff, through his Complaints and Exhibits,

admitted that Plaintiff had filed an inverse condemnation

suit against NCDOT in 1998, and that NCDOT won on

*Langdon v. NCDOT, 138 N.C. App. 553, 536 S.E.2d 366, cert. denied,

352 N.C. 675, 545 S.E.2d 425 (2000).

18

summary judgment. Langdon v. Tippett (1:01CV107) ques-

tions the constitutionality of several condemnation and

related statutes, while Langdon v. Swain (1:01CV139) seeks

“damages for the taking of [Plaintiff's] real property.”

(Pet. App. 99) The District Court held that the claims pre-

sented in the instant Complaints (Langdon v. Tippett and

Langdon v. Swain) could have been brought in the earlier

action, and were thus barred by the doctrine of res judi-

cata.

(5) Plaintiff baldly asserts that the prior judgment on

which res judicata was based, Langdon v. NCDOT, 98 CVS

139, was not a valid judgment. Plaintiff does not explain

in his Petition why said judgment was not valid, but

merely alludes to previous filings he has made where he

allegedly explained why the prior judgment is not valid.

Plaintiff then asserts that Defendants never denied his

prior assertions that the judgment was not valid. As

Plaintiff does not cite the prior filings to which he al-

ludes, Defendants cannot respond to this asseition. De-

fendants deny that they have ever admitted that the judg-

ment in Langdon v. NCDOT, 98 CVS 139, is not a valid

judgment.

(6) Finally, Plaintiff asserts res judicata does not apply

herein, because the identity of the parties or privity of the

parties element was not satisfied. The defendant in Lang-

don v. NCDOT, 93 CVS 139, was solely NCDOT. The De-

fendants in the instant cases are NCDOT and its Secretary

19

of Transportation; the North Carolina Department of

Justice and its Attorney General; the state of North Caro-

lina; and three current or former NCDOT employees.

Plaintiff argues only that the employee-defendants

(Swain, Martin, and Murdock) should not be held to be

in privity with the State of North Carolina. (Pet. pp. 26 -

27) Defendants assume Plaintiff meant to argue that the

employee-defendants should not be held to be in privity

with NCDOT, as NCDOT was the defendant named in

the case at issue, 98 CVS 139.

It is clear that the Defendants in Langdon v. Tippett,

which consist of two agencies, the State of North Caro-

lina, and two agency heads presumably sued in their offi-

cial capacity, are in privity with the agency sued in Lang-

don v. NCDOT. See Gregory v. Chehi, 843 F.2d 111, 120

(3rd Cir. 1988). However, Plaintiff asserted in his Com-

plaint in Langcon v. Swain that he was suing the three

current or former NCDOT employees named therein in

their individual (or personal) capacities. (Pet. App. p. 55)

Though it appears North Carolina courts have never di-

rectly addressed the issue, federal courts hold that em-

ployees sued in their individual capacities are not gener-

ally considered to be in privity with the government for

purposes of claims brought under 42 U.S.C. § 1983.” See

“No federal cases specifically discuss the situation presented herein -

a plaintiff making a takings claim under 42 U.S.C. § 1983 - and how

that might affect the analysis.

20

Gray v. Lacke, 885 F.2d 399, 405-06 (7th Cir. 1989), cert.

denied, 494 U.S. 1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613

(1990).

Thus, it may not have been appropriate for the lower

courts to dismiss Plaintiff's Complaint in Langdon v.

Swain on the grounds of res judicata. However, there are

alternative bases for dismissing said Complaint: Plaintiff

has failed to state a claim upon which relief can be grant-

ed, and Defendants Swain, Martin and Murdock are enti-

tled to qualified immunity. See Harbert Int'l, 157 F.3d

1271.

Plaintiff's Complaint alleges only that the three Defen-

dants knew about the landslide or landslides that had

occurred on his property; did nothing about the alleged

damage to his property; “blamed” him for the landslide

or landslides; and concealed information from him re-

garding NCDOT design practices. (Pet. App. pp. 77, 78,

80, 87) Plaintiff has not alleged any conduct on the part

of any of the named Defendants that actually caused the

landslide or landslides or otherwise resulted in a taking

of his property, the only alleged violation of his rights for

which he seeks remedy. (Pet. App. p. 99)

Plaintiff has thus failed to state a claim by failing to

establish that the conduct of Defendants deprived him of

his constitutional right to be free from a taking without

just compensation. See American Mfrs. Mut. Ins. Co. v.

21

Sullivan, 526 U.S. 40, 49 - 50 (1999). Further, Defendants

are entitled to qualified immunity, as the actions they are

alleged to have taken “are not clearly established to be

beyond the boundaries of [their] discretionary authority[,

..and no] reasonable official in the defendant{[s’] posi-

tion would have understood” that the alleged conduct

went beyond the limits of his statutory authority. Better

Gov't Bureau v. McGraw (In re Allen), 106 F.3d 582, 593

(4th Cir. 1997), cert. denied, 522 U.S. 1047, 118 S. Ct. 689,

139 L. Ed. 2d 635 (1998).

Thus, the decision of the lower courts to dismiss Plain-

tiff’s Complaints as frivolous should be upheld. See Hall

v. Quillen, 631 F.2d 1154, 1155 (4th Cir. 1980) (appellate

court may affirm on grounds other than those stated by

district court), cert. denied, 454 U.S. 1141, 1025S. Ct. 999,71

L. Ed. 2d 293 (1982).

In short, Plaintiff has failed to present a compelling

reason why this Court should grant his Petition. See Rule

10.

22

VI. The District Court did not abuse its

discretion by denying Plaintiff's

Motion to Recuse

Finally, Plaintiff appears to argue that it was error for

the district judge to deny his motion to recuse." Plaintiff

asserts the district judge should have recused himself

because (1) he was formerly the Attorney General for the

State of North Carolina, and it would be “natural” for

him “to identify with the interests of the State;” (2) in his

position as Attorney General, he worked with the current

Attorney General, Roy Cooper, and is a member of the

same political party as Cooper; (3) the current Secretary

of Transportation “ possibl[y]” contributed “heavily” to

Cooper’s campaign for Attorney General; (4) Judge

Thornburg “may have” defended the named Defendants

in Langdon v. Swain (1:01CV107); and, (5) an attorney for

NCDOT, not party to or counsel in this lawsuit, served

under Judge Thornburg when he was Attorney General.

(Pet. pp. 28-30)

"Plaintiff does not specifically argue for reversal of the dismissal of

his Complaints on this ground, but Defendants have assumed that is

the outcome Plaintiff seeks. Further, Plaintiff mentions in this section

of the Petition a motion to transfer venue and alludes to a motion he

made to enjoin “the noteholders and trustees.” (Pet. pp. 28-30) As

Plaintiff does not assert any error in the denial of these motions that

justifies reversal of the dismissal of his Complaints, and as Plaintiff

did not raise these issues as error in the Fourth Circuit, Defendants

will not address those motions herein.

23

“[T]o constitute grounds for disqualification, the prob-

ability that a judge will decide a case on a basis other

than the merits must be more than ‘trivial.’” United States

v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998) (citation

omitted), cert. denied, 526 U.S. 1137, 1195S. Ct. 1793, 143 L.

Ed. 2d 1020 (1999). Plaintiff's allegations, many of them

couched in terms of things Judge Thornburg “may have”

done, or things that other people“ possibl[y]” did, simply

would not lead a “reasonable, well-informed observer” to

question Judge Thornburg’s impartiality, id. at 286, and

do not rise above the level of a “trivial” risk of bias, id. at

287.

Defendants ask this Court to take judicial notice that

Judge Thornburg was commissioned to the federal bench

in March 1995 and last served as Attorney General in

1992; thus, he could not have been involved as Attorney

General in any of the litigation brought by Plaintiff relat-

ing this case, which centers around events beginning in

June of 1995.

Further, Plaintiff has submitted nothing beyond bald,

unsubstantiated assertions to indicate that Judge Thorn-

burg is, by necessity because of his former employment,

biased in favor of the State of North Carolina. If Plain-

tiff’s formulation of 28 U.S.C. § 455 were correct - that a

“This information is available from the website of the Federal

Judicial Center, at http:/ / www.air.fjc.gov / history /judges_frm.html.

24

former Attorney General is presumed to be biased, such

that “his impartiality might reasonably be questioned,”

id. -- Judge Thornburg, and any other former Attorney

General appointed to the federal bench, would be forced

to recuse himself from every case in which the State he

represented is a party, or in which a statute from that

state is questioned.

A “district court judge’s refusal to recuse himself” pur-

suant to 28 U.S.C. § 455 is reviewed “for abuse of discre-

tion.” DeTemple, 162 F.3d at 283. Plaintiff has not shown

that Judge Thornburg abused his discretion by failing to

recuse himself. Further, the Fourth Circuit applied the

proper “rule of law” to review of the Motion to Recuse

and found no abuse of discretion, and Plaintiff has pre-

sented no compelling reason for review of the treatment

of that motion. This Court should thus refrain from

granting Plaintiff's Petition on this ground. See Rule 10.

25

CONCLUSION

Plaintiff has not argued, and has made no showing, of

any compelling reason , see Rule 10, which would justify

review by this Court of claims found to be frivolous by

both a District Court and the Fourth Circuit Court of Ap-

peals. For the reasons stated above, this Court should

not issue its writ of certiorari to review the decision of the

Fourth Circuit Court of Appeals affirming the orders of

the trial court.

Respectfully submitted,

ROY COOPER

North Carolina Attorney General

Robert O. Crawford, III*

Special Deputy Attorney General

Lisa C. Glover

Assistant Attorney General

September 3, 2002 *Counsel of Record

APPENDIX

CONTAINING:

Exhibit 10 to Plaintiff's Complaint in Langdon v.

Swain, 1:01CV139 (release signed by plaintiff in pre-

vious case)

la

NORTH CAROLINA INDUSTRIAL COMMISSION

RALEIGH, NORTH CAROLINA

RELEASE OF TORT CLAIMS UNDER

GENERAL STATUTES 143-291 et seq

L.C. File No. TA-15328

KNOW BY ALL MEN BY THESE PRESENTS, That

I, We, for the sole consideration of TWO THOUSAND

DOLLARS ($2,000.00) to be paid by the NORTH CARO-

LINA DEPARTMENT OF TRANSPORTATION, the pay-

ment whereof being made under the provision of General

Statutes 143-291 et seq., I, We, have released, and dis-

charged and by these presents do for myself, ourselves,

my, our heirs, executors, administrators and assigns re-

lease and forever discharge the NORTH CAROLINA

_ DEPARTMENT OF TRANSPORTATION , its officers and

employees, including J. J. Swain, Jr., Dennis Allen, F. D.

Martin, and Russell Glass, its servants and agents, of and

from any and all claims, demands, damages, actions,

causes of action or whatever kind or nature, excepting

only the Me ison inverse condemnation claim set forth

of Srenmunaaiiann Polk County evade Cont File No.

98-CVS-139, on, account of a landslide which began on or

about June of 1995 on the property of Christopher Lang-

don located on State Road 1116, Hogback Mountain Road

in Polk County, North Carolina, resulting in alleged dam-

2a

ages to the aforementioned real property of Christopher

Langdon and alleged damage to the reputation of Chris-

topher Langdon.

I, We, understand that this release is made as compro-

mise to avoid expense and to terminate all controversy

and/or claims for injuries or damages of whatever na-

ture, known or unknown, including future developments

thereof, in any way growing out of or connected with

said incident or aforementioned landslide, excepting only

the aforementioned purported inverse condemnation

claim set forth in Christopher Langdon v. North Carolina

Department of Transportation, Polk County Superior

Court File No. 98-CVS-139. We, agree that the sum paid

is solely by way of compromise of disputed claims, and

it is therefore specifically agreed that this release shall be

a complete bar to all claims or suits for injuries or dam-

ages of whatsoever nature resulting from said incident,

excepting only the purported inverse condemnation .-

claim set forth in Christopher Langdon v. North Carolina

Department of Transportation, Polk County Superior

Court File No. 98-CVS-139.

IN WITNESS THEREOF, I, We, have hereunder set

my, our, hand(s), this the 1st day January, 1999.

3a

/s/s Doug H. Best /s/s Christopher Langdon

Witness CHRISTOPHER LANGDON

Claimant

307 West Church Street

3107 S. Memorial Dr., Farmville, North Carolina

Greenville, NC 27834 27828

Address

APPROVEL:

MICHAEL F. EASLEY

ATTORNEY GENERAL

By: /s ichael C. Warren

Michael C. Warren

Assistant Attorney General

North Carolina Department of

Justice

124 College Street, Suite 300

Asheville, NC 28801

828/251-6083

pee

eG