Opinion
No. 2:21-CV-9-BO
03-08-2021
ROGER VANN SMITH, Plaintiff, v. NEIL F. WIGGINS, Clerk of Superior Court, Gates County, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis [DE-1] 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 Adams v. 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 Plaintiff's 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).
II. ANALYSIS
The allegations of the complaint are as follows:
Philip P. Godwin, Sr. was retained by Mollie H. Welch: 12/31/1963 for the preparation of her estate. Mollie died: 7/13/69. Mollie's estate's "ITEM SEVENTH:" calls for her co-executors to retain the Godwin law firm "to assist" with the administration of Mollie's estate. On 02/24/71, Mollie's Executrix, Julia H. Darden retained the Godwin firm to assist with properly opening the estate. "ITEM SECOND" of Mollie's estate named as heirs apparent Mollie's (8) children, or their heirs to each take an 1/8 interest-in-common. Mollie's executrix following Mollie's will retained the Godwin firm to assist with leasing the estate's farm land, which was done. On 9/15/77, the Godwin firm without any or proper notice to their clients Welch's Estate: 69-E-37, and Darden commenced questionably purchasing interest in Estate 69-E-37. The Godwin firm never brought any legal action to "quiet title," but now seek to partition sell Welch's Estate without naming the estate as a necessary party defendant.
Monetary damages can't reasonably be determined. Since 1977 at least two (2) timber harvest could have been made pursuant to Estate 69-E-37's holdings. Timber sells with farm rents would have provided sufficient funds for the estate to purchase back its interests from any heir apparent. The 29 acres of unharvested timber's value as of 9/24/18 is: $75,000. The 1977 value of said timber would have been $17,000. The Godwins haven't provided any farm rental contract to Welch's Estate, but today question[n]ably claims 5/6 interest in said client's estate. 2/8's of Welch's Estate has not been compensated for at any time by the Godwins. In 2020 Godwin claims he was paid $3600, and paid me, Roger Vann Smith, Julia's estate trustee $600. I, Roger, in Godwin's harmful error, hold a 1/8, not a 1/6 interest Welch's Estate for Julia's estate. Two (2) late so[n]s of Mollie, Carl and Alexander, via their estates each hold an 1/8 interest. Carl died a resident of New York. Carl's estate hasn't been probated. Carl's spouse died in January 2009. Alexander died without a living spouse in Pennsylvania. Alexander's estate hasn't been probated.
I, Roger, am Julia's substitute-executor for estate: 69-E-37 in Gates, NC with the Clk. of Court.[DE-1-1] at 5. Plaintiff seeks to enjoin the partition sale by Defendant and damages in excess of $75,000.00. Id. at 4-5.
Plaintiff states his claims are brought pursuant to the Civil Rights Act of 1866. Id. at 3. Section 1982 establishes the right to "to inherit, purchase, lease, sell, hold, and convey real and personal property" free of race discrimination. 42 U.S.C. § 1982; Lewis v. Bent, No. 4:16-CV-79-FL, 2018 WL 4222868, at *3 (E.D.N.C. Sept. 5, 2018). "To establish a claim under the statute, plaintiff must 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." Brown v. Winman, No. 5:15-CV-59-BO, 2017 WL 946289, at *3 (E.D.N.C. Mar. 9, 2017) (citation omitted). Plaintiff's complaint contains no allegations of race discrimination. Accordingly, Plaintiff has not plead sufficient facts demonstrating a plausible claim that Defendant intended to discriminate against him on the basis of his race, and it is recommended the complaint be dismissed for failure to state a claim.
III. CONCLUSION
For the reasons stated herein, Plaintiff's application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiff's complaint be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 22, 2021, 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 will 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).
Submitted, this the 8 day of March, 2021.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge