Opinion
5:22-CV-368-FL
11-03-2022
DERRICK ALLEN, Plaintiff, v. N.C. STATE DENTAL BOARD, KAREN E. LANIER, BETTER DENTAL, RICCOBENE DENTAL ASSOCIATES, and SUN RISE DENTAL, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones Jr United States Magistrate Judge
This matter is before the court on Plaintiffs application to proceed in forma pauperis [DE-5] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adamsv. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . .” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id.; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). As part of its review, the court may consider whether it has subject matter jurisdiction of the case. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”).
II. DISCUSSION
Plaintiff alleges that the court has jurisdiction pursuant to Title 28 U.S.C. § 1331. [DE-1-1] at 2. Plaintiff initially states that he filed a lawsuit against Defendants Better Dental, Sun Rise Dental, and Riccobene Dental in the Middle District of North Carolina, Case No. 1:22-CV-146-TDS, and that he “filed an N.C. State Dental Board [sic].” Id. Plaintiff states that these actions were “inappropriately dismissed.” Id. Plaintiff then cites 42 U.S.C. §1982, the “Property Rights of Citizens,” and states that “I am being denied adequate dental treatment b/c [sic] I was once wrongfully imprisoned in Re 98CRS5208, 98CRS7980 and 98CRS7979, and too b/c [sic] I am an African-American and prefer for a black male to perform my dental work.” Id. at 2-3. Plaintiff then contends, “[m]oreover, North Carolina Dental Board infringes the first amendment by providing an [sic] just and thorough investigation subjecting I [sic] to cruel and unusual punishment. I still need a root-canal.” Id. at 3. Plaintiff states that the “federal question is has [sic] my constitutional rights been violated,” and he seeks $7 billion in damages. Plaintiff filed the docket from his recent Middle District of North Carolina case, his handwritten complaint in that case, a letter from the North Carolina State Board of Dental Examiners (“Board”), as well as what appear to be dental X-ray images attached to an email. [DE-1-2], Plaintiff has filed numerous pro se lawsuits in this district, see 5:20-CV-144-BO; 5:21-CV-293-BO; 5:22-CV-179-BO; 5:22-CV-207-FL, 5:22-CV-224-BO; 5:22-CV-301-D; 5:22-CV-322-BO, and as well as in other districts, and has been referred to as a “prolific pro se litigator” Allen v. Correct Care Sols., No. 1:21CV146, 2021 WL 954624, at *1 (M.D. N.C. Mar. 4, 2021), report and recommendation adopted sub nom. 2021 WL 949633 (M.D. N.C. Mar. 12, 2021), aff'd, 853 Fed.Appx. 858 (4th Cir. 2021).
A. Section 1982
Section 1982 of Title 42 states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Uzzell v. Johnson, No. 5:20-CV-167-FL, 2021 WL 4267711, at *14 (E.D. N.C. Sept. 20, 2021) (citing 42 U.S.C. § 1982). “To establish a claim under the statute, plaintiff must [plausibly] allege that (1) he is a racial minority; (2) that defendant intended to discriminate on the basis of race; and (3) the discrimination concerned activities listed in Section 1982, namely the inheritance, purchasing, leasing, selling, holding, and conveyance of real and personal property.” Smith v. Wiggins, No. 2:21-CV-9-BO, 2021 WL 1238223, at*l (E.D. N.C. Apr. 1, 2021) (citing Brown v. Winman, No. 5:15-CV-59-BO, 2017 WL 946289, at *3 (E.D. N.C. Mar. 8, 2017) (citation omitted)), aff'd, No. 21-1382, 2022 WL 4534271 (4th Cir. Sept. 28, 2022). It has been noted that “[a] key element in Section 1982 claims, therefore, is a demonstration that the defendant denied the plaintiff rights or benefits connected with ownership of property.” Brown, 2017 WL 3445650, at *2 (citation omitted).
Here, Plaintiff has alleged he is an African-American. He states generally that Defendants did not treat him because of his race and formerly incarcerated status. However, Plaintiff has failed to allege any facts regarding the “activities listed in Section 1982, namely the inheritance, purchasing, leasing, selling, holding, and conveyance of real and personal property.” See Smith, 2021 WL 1238223, at *1. Plaintiff contends only that Defendants denied him dental services because he “prefer[s] for a black male to perform [his] dental work,” [DE-1-1] at 2-3, and plaintiff makes no indication that he was discriminated against regarding inheriting, purchasing, leasing, selling, holding, or conveying real or personal property. Accordingly, any Section 1982 claim should be dismissed. See Uzzell, 2021 WL 4267711, at *14 (dismissing plaintiffs' Section 1982 claim because plaintiffs failed to identify any relevant real or personal property at issue) (citing Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 348 (4th Cir. 2013) (“§ 1982 protects only the right ‘to inherit, purchase, lease, sell, hold, and convey real and personal property' on one's own behalf.”)).
B. Section 1983
Civil damages claims for violations of federal constitutional rights are brought pursuant to Section 1983 of Title 42 of the United States Code. Section 1983 provides a private right of action where a person acting under the color of state law deprives an individual of a federally protected right. See 42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege that he was “deprived ... of a federal right” by some person “act[ing] under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980). Purely private conduct, “no matter how discriminatory or wrongful,” is not actionable under § 1983 or the Fourteenth Amendment. Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). State action requires proof that the alleged constitutional deprivation was (1) “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State” and (2) that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). The Supreme Court has specifically held that neither states nor state officials acting in their official capacities are “persons” under § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989); see Snow v. N.C. Dep't Health & Human Servs., No. 5:12-CV-724-FL, 2014 WL 808646, at *5 (E.D. N.C. Feb. 28, 2014).
1. Defendants Better Dental, Riccobene Dental Associates, and Sun Rise Dental
These same defendants were named in a case Plaintiff recently filed in the Middle District of North Carolina containing similar claims, the docket sheet from which Plaintiff has attached to his complaint in this case. See Allen v. Better Dental, et al., No. L22CV146, 2022 WL 789160 (M.D. N.C. Mar. 8, 2022), affdsub nom. 2022 WL 2987954 (4th Cir. July 28, 2022); [DE-1-2] at 1-3.
Upon frivolity review of these claims under 28 U.S.C. § 1915, the magistrate judge recommended the claims be dismissed, which the district court adopted. [DE-1-2] at 1-2. There the court observed there was a "lack of any factual allegations in [the] complaint showing that the defendants (three dental practices which failed to provide the type(s) of service(s) that Plaintiff desired) acted under color of state law..." Id. at 2.
Here, Defendants Better Dental, Riccobene Dental Associates, and Sun Rise Dental are not state actors, and Plaintiff has failed to allege facts showing that the three dental practices acted under color of state law so as to trigger liability under Section 1983 for constitutional violations. See Gomez, 446 U.S. at 640. Purely private conduct, “no matter how discriminatory or wrongful,” is not actionable under § 1983 or the Fourteenth Amendment. Mentavlos, 249 F.3d at 310; see Young v. Lake Royal Prop. Owners Ass'n, No. 5:19-CV-483-FL, 2020 WL 6692985, at *3 (E.D. N.C. Sept. 21,2020) (recommending dismissal of constitutional claims under § 1983 because the defendants were not state actors), report and recommendation adopted, 2020 WL 6693226 (E.D. N.C. Nov. 12, 2020).
Accordingly, it is recommended that any Section 1983 claims against Defendants Better Dental, Riccobene Dental Associates, and Sun Rise Dental be dismissed.
2. Defendants N.C. State Dental Board (North Carolina State Board of Dental Examiners) and Karen E. Lanier
Plaintiff has named the “ N.C. State Dental Board” as a defendant. Plaintiff alleges generally the “North Carolina Dental Board infringes the first amendment [sic] by providing an [sic] just and thorough investigation subjecting I [sic] to cruel and unusual punishment. I still need a root-canal.” [DE-1-1] at 3. Plaintiff also filed an August 29, 2022 letter from the Board regarding “Complaint against Drs. Tia Joyce and Sowjanya Tadakapalli,” in which the Board informed Plaintiff that his complaint had been reviewed and the Board determined that no disciplinary action was warranted. [DE-1-2] at 4.
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XL “Under the Eleventh Amendment, . . . neither a State nor its officials in their official capacity may be sued for damages in federal court without their consent.” Gamache v. Cavanaugh, 82 F.3d 410, 1996 WL 174623, at *1 (4th Cir. 1996) (unpublished table decision); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995). Such immunity “extends as well to state agencies and other government entities properly characterized as ‘arms[s] of the State.'” Gray, 51 F.3d at 430 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); then citing Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)); see Snow, 2014 WL 808646, at *5 (“The Supreme Court has specifically held the Eleventh Amendment to preclude claims against a State and its instrumentalities brought pursuant to 42 U.SC. § 1983.”) (citing Will, 491 U.S. at 71); Teague v. N.C. Dep't of Transp., No. 5:07-CV-45-F, 2007 WL 2898707, at *2 (E.D. N.C. Sept. 28, 2007) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984)).
In Quern v. Jordan, 440 U.S. 332 (1979), the Court held that 42 U.S.C. § 1983 did not abrogate a state's Eleventh Amendment immunity. Id. at 337-45 (reaching this conclusion by analyzing the plain language and legislative history of § 1983). Lower courts have held similarly that 42 U.S.C. §§ 1981 & 1986 do not abrogate Eleventh Amendment immunity. Parks v. Piedmont Tech. Coll., 76 F.3d 374, 1996 WL 36897, at *1 (4th Cir. 1996) (unpublished table decision) (state immune from money damages under § 1981); Huang v. Bd. of Governors of Univ, of N.C. , 902 F.2d 1134, 1138 (4th Cir. 1990) (state immune from money damages under § 1981); Demuren v. Old Dominion Univ., 33 F.Supp.2d 469, 474 (E.D. Va. 1999) (state immune from money damages under § 1981), aff'd, 188 F.3d 501 (4th Cir. 1995) (unpublished table decision); Martin v. Clemson Univ., 654 F.Supp.2d 410, 428 (D.S.C. 2009) (§ 1986).
Courts have also held states are immune from claims under 42 U.S.C. § 1985. See Kirby v. N.C. State Univ., No. 5:13-CV-850-FL, 2015 WL 1036946, at *4 (E.D. N.C. Mar. 10, 2015) (state immune from money damages under § 1985), aff'd, 615 Fed.Appx. 136 (4th Cir. 2015), cert, denied,No. 15-8399, 137 S.Ct. 34 (2016); Clark v. Md. Dep't of Pub. Safety and Correctional Servs., 247 F.Supp.2d 773, 776 n.2 (D. Md. 2003) (same). Section 1986 claims depend on § 1985 claims. See Trerice, 755 F.2d at 1085 (“A cause of action based upon § 1986 is dependent upon the existence of a claim under § 1985.”).
“North Carolina's Dental Practice Act (Act) provides that the North Carolina State Board of Dental Examiners (Board) is ‘the agency of the State for the regulation of the practice of dentistry.'” N.C. State Bd. of Dental Examinersv. F.T.C., 574 U.S. 494, 494 (2015). For purposes of Section 1983 and alleged constitutional violations, the Board is immune under the 11th Amendment. See Singletary v. N.C. State Bd. of Dental Examiners, No. 5:15-CV-476-D, 2016 WL 7647573, at *1 (E.D. N.C. Feb. 8, 2016) (ruling that the Eleventh Amendment barred Plaintiffs federal lawsuit against the Dental Board where plaintiff alleged the Dental Board's lengthy investigation into her dentistry practice violated the Due Process Clause of the Fourteenth Amendment and also violated North Carolina state regulations concerning Dental Board investigations) (citing Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760-61 (2002) & Cory v. White, 457 U.S. 85, 90-91 (1982), affd, 670 Fed.Appx. 172 (4th Cir. 2016).
Plaintiff has also named Karen E. Lanier as a defendant. For any official capacity claim Defendant Lanier is a state official as the president of the Board, [DE-1-2] at 4, and is not a “person” under Section 1983. An official-capacity claim in a § 1983 action is a claim against the governmental entity of which the official is an agent. Wyche v. City of Franklinton, 837 F.Supp. 137, 144 (E.D. N.C. 1993) (“A suit against a city official in his official capacity is a suit against the city itself”) (citing Hughes v. Blankenship, 672 F.2d 403, 406 (4th Cir. 1982)). As such, officials sued in their official capacity are immune from suit for monetary damages under the Eleventh Amendment because they are not considered “persons” under § 1983. Will, 491 U.S. at 71 (1989); see also Ballenger v. Owens, 352 F.3d 842, 843 (4th Cir. 2003) (dismissing claims against South Carolina state trooper to the extent those claims were brought against trooper in his official capacity); Wyche, 837 F.Supp. at 144 (stating §1983 claims against city police officer were subsumed by the claims against the city).
Courts recognize that a suit against a state official in his individual capacity, which seeks to impose personal liability, is not a suit against the state and therefore is not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 23 (1991). State officials sued in their individual capacities are “persons” for purposes of § 1983 liability. Id. Regardless, however, Plaintiff fails to state a claim against Defendants Board or Lanier. Plaintiff simply states that the Board “infringed on the first amendment by providing an [sic] just and thorough investigation subjecting I to cruel and unusual punishment.” [DE-1-1] at 3. Plaintiff provides no other facts to support these alleged claims. A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). This is necessary “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]”' Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). At the pleading stage, “while a complaint. . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” Id. (internal citations and quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level....” Id. Nothing in Plaintiffs filings could be construed to state a cognizable claim against the Board or Lanier.
Accordingly, Plaintiffs claims against Defendants N.C. State Dental Board and Lanier should be dismissed for failure to state a claim upon which relief can be granted.
III. CONCLUSION
For the reasons stated above, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiffs claims against Defendants be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until November 17, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline may bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).