Opinion
7:21-CV-115-M
01-30-2023
CHRISTOPHER W. LIVINGSTON, Plaintiff, v. THE NORTH CAROLINA STATE BAR, SUSANNAH B. COX, and KATHERINE E. JEAN, Defendants.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE
This case is before the court on Defendants' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted pursuant to Rule 12(b) of the Federal Rules of Civil Procedure [DE #18]. Where this matter has been referred to the undersigned and the parties have not consented to the jurisdiction of the magistrate judge, Defendants' motion is undertaken pursuant to 28 U.S.C. § 636(b)(1)(B) for memorandum and recommendation. For the reasons stated below, it is recommended that Defendants' motion to dismiss be granted.
The court allowed Plaintiff's motion to amend the initial complaint, and Plaintiff's first amended complaint [DE #16-1] became the operative pleading. (12/19/21 Order [DE #17].)
BACKGROUND
Plaintiff sues the North Carolina State Bar (“the Bar”) and two attorneys who work as counsel for the Bar, Susannah B. Cox and Katherine E. Jean, in their individual capacities. (Compl. [DE #16-1] at 1-2.) Plaintiff brings three types of claims: (1) federal claims, brought pursuant to 42 U.S.C. § 1983, for alleged violations of his First, Fourth, and Fourteenth Amendment rights; (2) state constitutional claims for alleged violations of Sections 14 (free speech), 18 (open court), and 19 (Law of the Land and Equal Protection) of Article I of the North Carolina Constitution; and (3) a North Carolina tort of malicious administrative prosecution. (Compl. at 1 ¶ 1, 28-29 ¶¶ 197-99.) Plaintiff invokes this court's subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 for his federal claims and 28 U.S.C. § 1367(a) for his state-law claims. (Compl. at 1.)
Plaintiff also brings a federal claim for malicious prosecution, although the constitutional provision which provides the basis for Plaintiff's particular claim is not clear. See Thompson v. Clark, 142 S.Ct. 1332, 1337-39 (2022) (explaining the history of a Fourth Amendment claim under 42 U.S.C. § 1983 and holding that “the gravamen of the Fourth Amendment claim for malicious prosecution, as this Court has recognized it, is the wrongful initiation of charges without probable cause,” which is the “gravamen of the tort of malicious prosecution”); Lambert v. Williams, 223 F.3d 257, 260 (4th Cir. 2000) (“We now hold that § 1983 that does not empower a plaintiff to bring a claim for malicious prosecution simpliciter. What is conventionally referred to as a ‘§ 1983 malicious prosecution' action is nothing more than a § 1983 claim arising from a Fourth Amendment violation.”). The Fourth Circuit case which Plaintiff cites in support of his free-standing federal malicious prosecution claim does not identify the federal constitution as the source of such a claim. See Nat'l Surety Co. v. Page, 58 F.2d 145, 148 (4th Cir. 1932) (noting that “[c]ivil proceedings, other than actions, which from their nature are likely to injure reputation or credit, may furnish ground of an action for malicious prosecution” but not identifying the source of such an action).
Although not currently eligible to practice law, Plaintiff was admitted to the Bar in March 2000. This action stems from Plaintiff's dissatisfaction with a Letter of Notice from Defendants in connection with a grievance filed by one of Plaintiff's former clients. (Compl. at 11-12.) Plaintiff alleges that “[the Bar] by and through Defendants Katherine E. Jean and Susannah B. Box maliciously and without probable cause under color of state law initiated a grievance proceeding, file 17G1161, against Plaintiff.” (Compl. at 11 ¶ 79.) Plaintiff alleges that the Letter of Notice from Defendants harassed, oppressed, and frightened Plaintiff, causing him to “waste many anxious hours” responding to the Letter of Notice, in addition to having to expend office resources. (Compl. at 13-14 ¶¶ 87, 97.)
Records maintained by the Bar indicate that Plaintiff's license was suspended for five years, effective September 3, 2016. See N.C. State Bar, Membership Information, https://portal.ncbar.gov/Verification/viewer.aspx?ID=27282 (last visited Jan. 30, 2023).
A Letter of Notice from the Bar is “a communication to a respondent setting forth the substance of a grievance.” 27 N.C. Admin. Code 1B.0103(29). A “grievance” is defined as “alleged misconduct” by an attorney. See id. at 1B.0103(20). A “respondent” is “a member of the North Carolina State Bar who has been accused of misconduct or whose conduct is under investigation, but as to which conduct there has not yet been a determination of whether probable cause exists.” Id. at 1B.0103(39).
A. Bar Discipline Process
A brief background on the Bar and summary of the attorney discipline process in North Carolina is helpful for understanding this lawsuit. See generally Roadmap of the Disciplinary Process, North Carolina State Bar, https://www.ncbar.gov/lawyer-discipline/roadmap-of-the-disciplinary-process/ (last visited Jan. 25, 2023); North Carolina State Bar v. Braswell, 67 N.C.App. 456, 457-58 (1984). The Bar is the state agency that investigates and prosecutes attorney discipline matters and which promulgates rules for such investigations and prosecutions. See N.C. Gen. Stat. §§ 84-15, -23, -28; 27 N.C. Admin. Code 1B.0102(c)(1). The Bar is governed by a group of councilors, known as the Council. N.C. Gen. Stat. § 84-17.
Grievances are complaints filed with the Bar alleging attorney misconduct. See 27 N.C. Admin. Code 1B.0103(20) (defining “grievance” as “alleged misconduct”), 1B.0111 (form and filing of grievances). The Bar has a Grievance Committee, which can, among other things, direct bar counsel to investigate alleged misconduct; hold preliminary hearings, find probable cause, and direct that complaints be filed; dismiss grievances upon a finding of no probable cause; issue letters of warning and of caution; and issue admonitions, reprimands, and censures. 27 N.C. Admin. Code 1B.0106(1)-(8). The Grievance Committee cannot suspend or disbar an attorney. See id. If the Grievance Committee finds probable cause to believe misconduct occurred warranting discipline more serious than a censure, the Grievance Committee may direct the filing of a complaint with the Disciplinary Hearing Commission. See 27 N.C. Admin. Code 1B.0103(11), 1B.0106(2); Braswell, 67 N.C.App. at 458 (“Once the Grievance Committee has determined that there is probable cause to believe that a violation of the disciplinary rules has occurred, a formal complaint is filed.”). Generally, grievances are confidential and not subject to public disclosure unless the Grievance Committee determines that probable cause exists to believe that a respondent-attorney has committed misconduct warranting disciplinary action. N.C. Gen. Stat. § 84-32.1; 27 N.C. Admin. Code 1B.0133(a).
The Council may hire attorneys to work as counsel for the Bar in attorney discipline matters. See N.C. Gen. Stat. 84-31; 27 N.C. Admin. Code. 1B.0104(3), 1B.0107(9). These attorneys effectively serve as the Bar's legal department. Bar counsel may, among other things, initiate an investigation concerning alleged attorney misconduct, send a letter of notice to a respondent-attorney “when authorized by the chairperson of the Grievance Committee,” recommend to the chairperson of the Grievance Committee that a matter be dismissed, and prosecute attorney discipline matters before the Grievance Committee, hearing panels, or state courts. 27 N.C. Admin. Code 1B.0107(1)-(5). When Bar counsel issues a Letter of Notice to a respondent-attorney, the respondent-attorney must provide a signed, written response within fifteen days or seek an extension. See 27 N.C. Admin. Code 1B.0112(c). Upon receipt of the respondent-attorney's response to a Letter of Notice, Bar counsel may conduct further investigation or terminate the investigation, subject to approval from the chairperson of the Grievance Committee. 27 N.C. Admin. Code 1B.0112(e).
B. Letter of Notice to Plaintiff
On or about February 10, 2018, Plaintiff received a Letter of Notice, dated February 8, 2018, from Defendants. (Compl. at 11-13 ¶¶ 80, 82, 87.) The Letter of Notice related to a fee dispute grievance made to the Bar on or about November 20, 2017, by one of Plaintiff's former clients. (Id. at 10-11 ¶ 75; see also id. at 9-10 ¶¶ 69-73 (summarizing aspects of the fee dispute with the former client).) The Letter of Notice identified several Rules of Professional Conduct which may have been violated. (Compl. at 13-14 ¶¶ 87-93.) Plaintiff mailed his response to the Letter of Notice on February 26, 2018. (Id. at 14 ¶ 94.) Defendant Cox replied to Plaintiff with a letter stating that Plaintiff had not signed his response to the Letter of Notice and that upon receipt of a signed response to the Letter of Notice she would forward the information to the Grievance Committee. (Id. at ¶ 95.) Plaintiff then mailed a signed copy of his response. (Id. at ¶ 97.) Defendants subsequently issued a letter to Plaintiff, dated June 21, 2018, which stated that the grievance was being dismissed due to lack of probable cause to believe Plaintiff violated any Rule of Professional Conduct. (Id. at 15 ¶ 101.)
C. Plaintiff's Claims
Plaintiff's complaint states that Defendants violated Plaintiff's “rights under the First (Free Speech and Petition Clauses and general freedom of association), Fourth (unreasonable search and seizure without probable cause), and Fourteenth (Due Process and Equal Protection Clauses) Amendments, as well as the inherent constitutional right to privacy and solitude set forth in abundant and longstanding federal common law, e.g., the Griswold v. Connecticut, 381 U.S. 479 (1965) line of cases.” (Compl. at 28 ¶ 197; see also id. at 1 ¶ 1.) Plaintiff seeks actual damages, punitive damages, costs, and attorney's fees for his federal claims (should he retain counsel). (Id. at 28-29 ¶¶ 197-99.)
The gravamen of Plaintiff's lawsuit is that the grievance filed against him by his former client was facially meritless and Defendants should have “determined without Plaintiff's input that no probable cause existed and dismissed the matter with no more than a courtesy notice to Plaintiff.” (Compl. at 11 ¶ 76.) Plaintiff believes the action taken by Defendants violated his federal and state constitutional rights, in addition to constituting a state-level tort of malicious prosecution.
DISCUSSION
I. Plaintiff's § 1983 Claims
A. Motion to Dismiss Standard of Review
1. Rule 12(b)(1) Motion
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden to establish subject-matter jurisdiction. “When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), ‘the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'” Evans v. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). If the material jurisdictional facts are not in dispute, and the moving party is entitled to judgment as a matter of law, then the court should grant the Rule 12(b)(1) motion to dismiss. See id. “When a defendant makes a facial challenge to subject matter jurisdiction, . . . the facts alleged in the complaint are taken as true,” as they would be in the context of a motion to dismiss pursuant to Rule 12(b)(6). Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
2. Rule 12(b)(6) Motion
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint or any claims contained therein that fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The intent of the rule is to test the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “‘The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'” Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir.1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
To survive a 12(b)(6) motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not contain detailed factual allegations, but it must give a defendant fair notice of what the claim is and the grounds upon which it rests. Id.. A “formulaic recitation of the elements of a cause of action will not do.” Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations” sufficient to raise a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Facial plausibility is more than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. It requires the plaintiff to articulate facts “that allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
B. Analysis
Defendants contend they are immune from damages liability based on the Eleventh Amendment and absolute prosecutorial immunity. (Defs.' Mem. Supp. Mot. Dismiss at 9-12.) The undersigned agrees.
1. Eleventh Amendment Immunity
The Eleventh Amendment provides a state and its agents and instrumentalities immunity from suits brought by citizens of the state. Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997); see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (state agencies entitled to Eleventh Amendment immunity absent waiver);Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); U.S. Const. amend. XI. “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).
Plaintiff's complaint names the North Carolina State Bar as a defendant. The Bar is an agency of the State of North Carolina. See N.C. Gen. Stat. § 84-15; Myers v. North Carolina, No. 5:12-CV-714-D, 2013 WL 4456848, at *4 (E.D. N.C. Aug. 16, 2013); Wolfenden v. Long, No. 5:09-CV-536-BR, 2010 WL 2998804, at *6 (E.D. N.C. July 26, 2010). This defendant is entitled to Eleventh Amendment immunity, as are its officials. Therefore, Plaintiff may pursue his claims against the Bar only if “(1) the state has clearly and unambiguously waived sovereign immunity; (2) the case fits within the doctrine of Ex Parte Young, 209 U.S. 123 (1908), which permits certain private suits against state officers; or (3) Congress has validly abrogated the immunity.” 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 Alden v. Maine, 527 U.S. 706, 755-57 (2000)).
Plaintiff has not included any allegations from which it may be inferred that the State of North Carolina has waived its immunity with respect to Plaintiff's claims against the Bar. Nor does Plaintiff invoke a federal statute that abrogates the state's sovereign immunity. See, e.g., Quern v. Jordan, 440 U.S. 332, 345 (1979) (concluding that § 1983 does not abrogate sovereign immunity). Plaintiff also does not seek prospective relief against a state official so as to fall within the Ex Parte Young exception. Moreover, in his response in opposition to the motion to dismiss, Plaintiff does not challenge Defendants' argument as to this issue. (Pl.'s Resp. Opp'n at 1-24.) Therefore, Plaintiff's § 1983 claims against the Bar and any official capacity claims against Defendants Cox and Jean are barred by the Eleventh Amendment.
2. Prosecutorial Immunity
Plaintiff's claims against Defendants Cox and Jean in their individual capacities are barred by absolute immunity. See Myers, 2013 WL 4456848, at *4 (holding that absolute prosecutorial immunity pursuant to Imbler v. Pachtman, 424 U.S. 409 (1976), “extends to state bar officials performing a disciplinary role” (citing numerous cases)); Pak v. Ridgell, No. 1:10-CV-1421-RDB, 2011 WL 3320197, at *6-7 & n.9 (D. Md. Aug. 1, 2011) (Maryland bar counsel afforded absolute immunity and explaining distinction between Ostrzenski v. Seigel, 177 F.3d 245 (4th Cir. 1999), and Goldstein v. Moatz, 364 F.3d 205 (4th Cir. 2004), regarding this issue).
Plaintiff contends that Defendants Cox and Jean were not functioning in a prosecutorial capacity when they issued the Letter of Notice to Plaintiff. (Pl.'s Resp. Opp'n at 12-14.) However, this position is foreclosed by the Fourth Circuit's holdings in Ostrzensk v. Seigel, 177 F.3d 245, 250-51 (4th Cir. 1999) (holding that a peer reviewer for a state medical board had duties “analogous to those of a prosecutor reviewing the evidence to determine whether to recommend prosecution”), and Goldstein v. Moatz, 364 F.3d 205, 215-16 (4th Cir. 2004) (holding that officials from the Patent and Trademark office conducting investigation regarding patent attorney were not entitled to absolute prosecutorial immunity in part because they, “unlike the peer reviewer in Ostrzenski, have neither the statutory nor regulatory authority to recommend disciplinary action; they merely investigate). In North Carolina, bar counsel have the “power and duty” to investigate alleged attorney misconduct and to recommend dismissal or discipline. 27 N.C. Admin. Code 1B.0107(3), (4). Accordingly, the conduct of Defendants Cox and Jean as bar counsel for the Bar is analogous to that addressed in Ostrzenski. See Pak, 2011 WL 3320197, at *7 n.9. Therefore, Plaintiff's § 1983 claims against Defendants Cox and Jean in their individual capacities are barred by absolute prosecutorial immunity. See Ostrzenski, 177 F.3d at 250-51; Myers, 2013 WL 4456848, at *4.
II. Plaintiff's State-Law Claims
Plaintiff asks the court to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over his state-law claims. (Compl. at 1 ¶ 2.) However, as Plaintiff's § 1983 claims fail for the reasons explained above, there are no federal claims to which Plaintiff's remaining state-law claims may attach. See 28 U.S.C. § 1367(c)(3) (stating that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”). Having considered principles of comity, convenience, fairness, and judicial economy, the undersigned recommends that the court decline jurisdiction over the remaining state-law claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' motion to dismiss [DE #18] be GRANTED and Plaintiff's federal claims be dismissed in their entirety. It is further RECOMMENDED that the court decline to exercise supplemental jurisdiction over Plaintiff's remaining state-law claims.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 13, 2023, 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. Dec. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline 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, a party's failure to file written objections by the foregoing deadline may bar the party 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).