Polidi v. Bannon

ORDER

The matter is before the Court on the pro se plaintiffs application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Because plaintiff has made the requisite showing, his application to proceed in forma pauperis must be granted.

Importantly, however, § 1915(e) requires that a complaint filed in forma pau-peris be dismissed if at any time it is determined that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In determining whether to dismiss a case pursuant to § 1915(e), a district court has “wide latitude” and “meaningful discretion.” Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004).

With respect to failure to state a claim, the familiar plausibility pleading standard applies. See De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Under that standard, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).1 In addition, an action is frivolous when it “lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. *617319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Notably, in evaluating whether a complaint must be dismissed as frivolous pursuant to § 1915(e), “district courts are at liberty to consider any factors that experience teaches bear on the question of [frivolousness]” Nagy, 376 F.3d at 257.

I.

This case is the fifth lawsuit that plaintiff, a disbarred attorney, has filed in this district in connection with his disbarment by the North Carolina State Bar (“NCSB”) or the United States Patent and Trademark Office (“USPTO”). With respect to his disbarment in North Carolina, plaintiff signed a consent order of disbarment and a sworn, notarized “Affidavit of Surrender,” affirming, inter alia:

(i) that plaintiff freely and voluntarily resigned his bar license;

(ii) that he was under investigation by the NCSB for misuse of funds that plaintiff received in connection with the representation of a client;

(iii) that the material facts upon which the NCSB’s investigation was predicated were true; and

(iv) that plaintiff was submitting his resignation because “if disciplinary charges were predicated upon the misconduct under investigation [by the NCSB], [plaintiff] could not successfully defend against them.”

North Carolina State Bar v. Polidi, 14CV009738 (N.C. Super. Ct. July 21, 2014) (Affidavit of Surrender).2

Despite this sworn affidavit, plaintiff has filed the following lawsuits—two of which have already been dismissed pursuant to § 1915(e):

(i) In August 2015, plaintiff filed a claim seeking judicial review of the USPTO’s decision to disbar him. The USPTO’s decision was affirmed, and plaintiffs petition was therefore dismissed. Plaintiff subsequently appealed, which appeal was docketed on May 5, 2016 and is still pending.3

(ii) In September 2015, a month after filing his first suit, plaintiff brought 42 U.S.C. § 1983 and malicious prosecution claims against a federal officer and one of the defendants in the instant case. Plaintiff voluntarily dismissed all claims in this § 1983 and malicious prosecution suit against all defendants.4

*618(iii) Approximately a year later, in October 2016, plaintiff filed defamation and § 1983 claims against the NCSB and unknown “John Doe” NCSB employees. That complaint was dismissed, pursuant to § 1916(e), as frivolous, for failure to state a claim, and for seeking money damages against a defendant who is immune from such relief.5 Plaintiff subsequently filed a “Motion For New Hearing,” invoking Rules 52, 69, and 60, Fed. R. Civ. P., which motion was denied.6

(iv) Then, on December 9, 2016, plaintiff filed a lawsuit against the lawyers and firm that represented plaintiff in connection with the NCSB disbarment proceedings, alleging § 1983 and § 1986 claims, as well as three state-law claims. On December 22, 2016, the federal claims in that case were dismissed pursuant to § 1916(e) as frivolous and for failure, to state a claim, and the remaining state-law claims were dismissed pursuant to 28 U.S.C. § 1367(c).7

(v) The instant action was also filed on December 9, 2016. Plaintiffs original Complaint in this action named as defendants (i) the NCSB, (ii) three named employees of the NCSB in their official and individual capacities, (iii) an individual named Douglas Bell, and (iv) fifteen “Jane” or “John Does.” The original Complaint alleged four causes of action: (i) a § 1983 claim; (ii) a § 1985 claim, (iii) abuse of process, and (iv) breach of fiduciary duty.8

On December 27, 2016—five days after plaintiffs suit against his former lawyers was dismissed—plaintiff filed an Amended Complaint (“AC”) in the instant action.9 Plaintiff now alleges claims against only (i) Carmen Bannon, individually and in her official capacity as a prosecutor employed by the NCSB, and (ii) Douglas Bell, a private citizen who submitted a complaint against plaintiff to the NCSB.10 The AC alleges the following causes of action: (i) a § 1983 claim; (ii) a § 1985 claim; (iii) breach of fiduciary duty; (iv) abuse of process; (v) conversion; (vi) interference with contract; (vii) malicious prosecution; and (viii) intentional infliction of emotional distress. Plaintiff seeks money damages and declaratory relief. These Claims are addressed as follows.

*619A. Section 1983

To state a claim under § 1983, “a plaintiff must allege that he was ‘deprived of a right secured by the Constitution or laws of the United States, and that- the alleged deprivation was committed under color of state law.’ ” Thomas v. Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)). Section 1983’s “color of state law” requirement is “synonymous with the more familiar state-action requirement,” and “the analysis for each is identical.” Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

To begin with, because defendant Bell is a private citizen, not a state actor, plaintiffs § 1983 count against Bell fails to state a claim. See AC ¶ 7; Thomas, 841 F.3d at 637 (“Without state action, [plaintiff] has no § 1983 claim”). Indeed, on December 22, 2016, plaintiffs complaint against his former lawyers—which complaint also alleged a § 1983 claim against private actors—was dismissed for this same reason. See Polidi v. Cheshire Parker Schneider & Bryan, PLLC, No. 1:16-cv-1534 (E.D. Va. Dec. 22, 2016). Five days later, seeking to avoid the same result in the instant action, plaintiff amended his complaint to allege that defendant Bell “influenced the conduct of a State actor so as to convert his own conduct to State action.” AC ¶ 47. No facts in the AC are alleged to support this conclusory allegation; this allegation is baseless.

To be sure, “[ijn rare cases, the state can ‘so dominate[] [private] activity as to convert it to state action.’ ” Thomas, 841 F.3d at 637 (quoting Philips, 572 F.3d at 181)). Yet, the Fourth Circuit has instructed time and again that a state’s “ ‘[m]ere approval of or acquiescence in the initiatives of a private party’ is insufficient” to constitute state action. Wahi v. Charleston Area Med. Ctr., 562 F.3d 599, 616 (4th Cir. 2009) (quoting DeBauche v. Trani, 191 F.3d 499, 507 (4th Cir. 1999)). Rather, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (quotation marks omitted). Ultimately, there is “no specific formula” for determining the existence of state action, and “[w]hat is fairly attributable to the state is a matter of normative judgment, and the criteria lack rigid simplicity.” Philips, 572 F.3d at 182 (alterations omitted).

Here, plaintiffs allegation of any state action with respect to defendant Bell is wholly conclusory; the AC offers no facts—nor could it do so—to support any plausible inference that Bell’s contact with the NCSB transformed him into a state actor. Instead, the AC alleges that defendant Bell unilaterally contacted the NCSB “in order to harass the Plaintiff’ and, curiously, “out of a misplaced hope ... of getting back together with [Bell’s] ex-wife.” AC ¶ 8. That is hardly action “fairly attributable to the state.” Philips, 572 F.3d at 182. Notably, the AC does not allege that defendants ever met, spoke, or wrote the other. Indeed, the only allegation in the AC regarding any coordination between defendant Bell and the state are the conclusory statements that, “[u]pon information and belief, [Bell] act[ed] in concert with and in collusion with” defendant Bannon, and that “an agreement existed between Bannon and Bell[.]” AC ¶¶ 10, 48. These allegations are also deficient, because it is well-settled that “[a] conclusory allegation that a private person acted jointly with a state actor fails to state a claim under § 1983 [.] ” Kash v. Honey, 38 Fed.Appx. 73, 76 (2d Cir. 2002). Moreover, amendment would be futile, as a private *620citizen’s filing a grievance or cooperating with a state bar association cannot fairly be attributed to the state. See, e.g., id. at 75-76 (no state action where private citizen formally accuses plaintiff of misconduct). Simply put, plaintiff has not alleged any facts to support a plausible inference that defendant Bell was acting under color of law, and thus the § 1983 count against defendant Bell fails to state a claim and lacks any arguable basis in law or fact.

Next, to the extent plaintiff seeks money damages against defendant Bannon in her official capacity as a “prosecutor employed by the [NCSB],”11 plaintiffs § 1983 claim is barred by the doctrine of sovereign immunity. Indeed, on October 31, 2016, plaintiffs last attempt to assert a § 1983 damages claim against the NCSB itself was dismissed for this precise reason. See Polidi v. North Carolina State Bar, No. 1:16-cv-1322 (E.D. Va. Oct. 31, 2016).12 Two months later, it is still the settled rule that absent waiver, consent, or congressional abrogation, the Eleventh Amendment bars suits directly against a state or its agencies, divisions, departments, and officials in federal court. Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Boches v. Fields, 999 F.2d 788, 790 (4th Cir. 1993).13 There is no question that the NCSB is a state agency,14 or that an action filed against a state official in her official capacity is tantamount to a claim against the state. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996). Not surprisingly, then, the Supreme Court has squarely foreclosed plaintiffs § 1983 damages claim here. See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“[N]either a State nor its officials sued in their official capacity are ‘persons’ under § 1983.”). Thus, plaintiffs § 1983 damages claim against defendant Bannon, sued in her official capacity, is frivolous, fails to state a claim, and seeks money damages against a defendant who is immune from such relief. Accordingly, this claim must be dismissed.

Plaintiffs § 1983 claim fares no better insofar as plaintiff seeks money damages against defendant Bannon in her individual capacity. This is so because defendant Bannon enjoys absolute immunity from this damages claim. Prosecutors are absolutely immune from suits for mon*621ey damages for conduct in or connected with judicial proceedings. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Nivens v. Gilchrist, 444 F.3d 287, 250 (4th Cir. 2006). This immunity extends to state bar officials performing a disciplinary role; indeed, even the decision whether to bring a disciplinary case against a lawyer is a core prosecutorial function protected by absolute immunity. See Imbler, 424 U.S. at 424-26 & n. 24, 96 S.Ct. 984.15 And it is pellucid that plaintiffs AC targets activities that defendant Bannon performed as part of her prosecutorial duties on the NCSB’s behalf.16 Particularly instructive in this regard is Wolfenden v. Long,17 a case in which a district court held that defendant Bannon, as deputy counsel for the NCSB, “performs ... prosecutorial duties ... on behalf of the State Bar [and] as such, [is] immune from suit under § 1983.” Wolfenden, 2010 WL 2998804, at *9. In sum, plaintiffs § 1983 claim against defendant Bannon, sued in her individual capacity, is barred and must be dismissed.

Finally, to the extent plaintiff seeks declaratory relief, his § 1983 claim must be dismissed as frivolous and for failure to satisfy the threshold plausibility pleading standards elucidated in Iqbal and Twom-bly. Indeed, the AO is rife with hyperbole, but devoid of facts. In essence, plaintiffs digressive and histrionic allegations amount to conclusory statements that defendant Bannon deceived everyone involved in plaintiffs disbarment by maliciously orchestrating a sham disciplinary prosecution based on untrue and unfair misrepresentations. Yet, the AC, even when liberally construed, does not allege facts sufficient to support a plausible inference that defendant Bannon violated § 1983. Indeed, plaintiffs allegations are even less credible in light of the publicly available court records relating to plaintiffs disbarment, including plaintiffs sworn, notarized “Affidavit of Surrender.” See North Carolina State Bar v. Polidi, 14CV009738 (N.C. Super. Ct. July 21, 2014) (Affidavit of Surrender).18 In that sworn affidavit, plaintiff declared that he freely and voluntarily resigned his bar license and admitted that he was aware of the NCSB’s investigation into allegations that plaintiff had misused funds that his client had assigned to a third party. Id. ¶3. Plaintiff further admitted that “the material facts upon which the [NCSB’s] *622investigation ... is predicated are true.” Id. ¶ 4 (emphasis added). Plaintiff even acknowledged that “if disciplinary charges were predicated upon the misconduct under investigation, [plaintiff] could not successfully defend against them.” Id. ¶ 5. In other words, plaintiffs sworn affidavit belies—indeed, flatly contradicts—his AC.

Accordingly, plaintiffs § 1983 claim must be dismissed pursuant to 28 U.S.C. § 1915(e), as this claim is frivolous, fails to state a claim, and seeks money damages against a defendant who is immune from such relief.

B. Section 1985

Plaintiffs § 1985 claim is even less tenable than is his § 1983 claim. To begin with, plaintiffs § 1985 money damages claim against defendant Bannon, sued either in her official or individual capacity, is barred by the same immunity doctrines that bar plaintiffs § 1983 claim. See Will, 491 U.S. at 71, 109 S.Ct. 2304; Imbler, 424 U.S. at 431, 96 S.Ct. 984; see also supra Part I.A.

Next, plaintiffs § 1985 claim—that defendants conspired to “deprive the Plaintiff of any fair opportunity ... to respond to allegations by Bell in connection with the [NCSB] proceeding”19—is also frivolous and fails to state a plausible claim on which relief can be granted.

Section 1985 is a conspiracy statute comprising three subsections, but it is clear that none provides plaintiff a cause of action. To begin with, the Fourth Circuit has recently explained that

[t]o bring a claim under 42 U.S.C. § 1985, a plaintiff must show (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.

Thomas, 841 F.3d at 637 (quoting Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)), Here, plaintiff has not even attempted to allege that defendants’ conduct was motivated by a “specific, class-based, invidiously discriminatory animus.” Id. (emphasis added). Nor is there any basis in fact or law to believe that plaintiff could indeed demonstrate such class-based animus. Thus, plaintiffs § 1985 claim must be dismissed pursuant to 28 U.S.C. § 1915(e) as frivolous and for failure to state a claim.20

Insofar as plaintiff relies on § 1985(2),21 and even assuming, arguendo, that a plain*623tiff specifically invoking, that subsection need not always allege class-based, invidiously discriminatory animus,22 it is well-settled that a- claim like plaintiffs—one that alleges a conspiracy regarding a state court proceeding—must assert class-based animus. See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Simmons, 47 F.3d at 1376; Bloch v. Mountain Mission Sch., 846 F.2d 69 (4th Cir. 1988) (Table Decision). Plaintiffs inability to do so is fatal to his claim, to the extent he relies on § 1985(2).23

Moreover, plaintiffs § 1985 claim independently fails because the AC’s concluso-ry assertion of a conspiracy does not pass muster under the plausibility standard set forth in Twombly and Iqbal. Specifically, a plaintiff asserting a § 1985 conspiracy must allege “an agreement or a ‘meeting of the minds’ by defendants to violate the claimant’s constitutional rights.” Simmons, 47 F.3d at 1377. But as the Fourth Circuit recently stated, “[allegations of parallel conduct and a bare assertion of a conspiracy are not enough for a [§ 1985] claim to proceed.” Thomas, 841 F.3d at 637 (quotation marks omitted). In this respect, plaintiff has not alleged any facts to permit a plausible inference that defendants had an agreement or “meeting of the minds” to violate plaintiffs rights. Rather, plaintiff offers only conclusory allegations (i) that “[u]pon information and belief, [defendant Bannon] act[ed] in concert with and. in collusion with Defendant Bell,” AC ¶ 10; and (ii) that “[u]pon information and belief, an agreement existed between Bannon and Bell to deprive the Plaintiff of any fair opportunity ... to respond to allegations by Bell in connection with the [NCSB] proceeding.” Id. ¶ 48. Such bare assertions fall far short of stating a § 1985 claim, even when the Complaint is construed liberally.24

* * * *

In sum, plaintiffs §§ 1983 and 1985 claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), because those claims (i) are frivolous, (ii) fail to state a claim upon which relief can be granted, and (iii) seek money damages against a defendant who is immune from such relief.

II.

Because plaintiffs claims arising under federal law must be dismissed, analysis must turn to whether subject matter jurisdiction exists over the remaining state-law claims. See, e.g., Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (“[A] federal court is obliged to dismiss a case whenever it appears the court lacks subject matter jurisdiction.” (citing Fed. R. Civ. P. 13(h)(3))).25 It is axiomatic that federal courts are “courts of limited sub*624ject matter jurisdiction, and as such there is no presumption that the court has jurisdiction.” Pinkley, Inc. v. City of Frederick, Md., 191 F.3d 394, 399 (4th Cir. 1999). Thus, “the facts providing the court jurisdiction must be affirmatively alleged in the complaint.” Id. In other words, plaintiff is required to allege facts supporting at least one of two potential bases for subject matter jurisdiction: federal question jurisdiction or diversity jurisdiction. See 28 U.S.C. § 1331 (federal question); id. § 1332 (diversity).

It is apparent that diversity jurisdiction does not exist on this record; the AC includes no facts relating to diversity of citizenship, nor does plaintiff even hint at an amount in controversy.26 Instead, plaintiff alleges that the basis for original subject matter jurisdiction over this action is federal question jurisdiction by virtue of plaintiffs § 1983 and § 1985 claims. See AC ¶ 5; 28 U.S.C. § 1331. In this respect, it appears that plaintiff impliedly invoked supplemental jurisdiction over plaintiffs state-law causes of action, as the state-law claims seem to stem from the same transactions or occurrences giving rise to plaintiffs purported federal claims. See 28 U.S.C. § 1367 (courts may exercise supplemental jurisdiction over claims forming “part of the same case or controversy” as the cause of action that provided original jurisdiction). Yet, pursuant to § 1367, a district court may “decline to exercise supplemental jurisdiction” if the court “has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3). Because original subject matter jurisdiction derived only from the federal claims that must be dismissed, and because only state-law claims remain, it is appropriate to decline to exercise supplemental jurisdiction over plaintiffs remaining state law-law claims and to dismiss those claims pursuant to § 1367(c)(3).

III.

Accordingly, and for good cause,

It is hereby ORDERED that plaintiffs application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED.

It is further ORDERED that plaintiffs § 1983 and § 1985 claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii) & (iii). Because plaintiffs § 1983 and § 1985 allegations fail to state a claim on which relief can be granted, and because these defects are incurable, plaintiffs federal claims are dismissed WITH PREJUDICE.27

*625It is further ORDERED that plaintiffs remaining state-law claims are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).

Plaintiff is reminded that any new complaint filed in this district will be subject to the Federal Rules of Civil Procedure, including Rule 11, and may result in the issuing of an Order enjoining plaintiff from filing additional pleadings relating to his disbarment. Of course, this Order does not prejudice plaintiff from pursuing his state-law claims in state court.

Should plaintiff wish to appeal, he must do so by filing a written notice of appeal with the Clerk’s Office within thirty (30) days of the entry date of this Order, pursuant to Rules 3 and 4, Fed. R. App. P. A written notice of appeal is a short statement that indicates a desire to appeal and notes the date of the Order plaintiff wants to appeal. Plaintiff need not explain the grounds for appeal until so directed by the court.

The Clerk is directed to send a copy of this Order to the pro se plaintiff, all counsel of record, and the North Carolina State Bar, and to place this matter among the ended causes.