Dalenko v. Stephens, 5:12–CV–122–F.

• Decision Date: 08 January 2013
• Docket Number: No. 5:12–CV–122–F.,5:12–CV–122–F.
• Citation: 917 F.Supp.2d 535
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Carol DALENKO, Plaintiff, v. Donald W. STEPHENS, et al., Defendants.

917 F.Supp.2d 535

Carol DALENKO, Plaintiff,

v.Donald W. STEPHENS, et al., Defendants.

No. 5:12–CV–122–F.

United States District Court,

E.D. North Carolina,

Western Division.

Jan. 8, 2013.

Carol Dalenko, Knightdale, NC, pro se.

Roger A. Askew, Raleigh, NC, Defendants.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Motion to Dismiss Complaint, “Joined Complaint,” Amended Complaint, and Amended Complaint (II) [DE–41] filed by Defendants Donald W. Stephens, Shannon R. Joseph, William R. Pittman, Kenneth C. Titus, Sanford L. Steelman, Jr., Barbara A. Jackson, Donna S. Stroud, Robert C. Hunter, James A. Wynn, Jr., Sam Ervin, IV, Robert N. Hunter, Jr., and F. Blare Williams (collectively, “state judicial defendants”). In response to this motion, the pro se Plaintiff filed a Motion to Strike Insufficient Defenses [DE–56]. Both motions are ripe for ruling.

I. PROCEDURAL AND FACTUAL HISTORY

The parties agree that this latest action ¹ in this court filed by the pro se Plaintiff arises out of various North Carolina court proceedings involving the Plaintiff. Becausethe state proceedings are explicitly referenced in Plaintiff's pleadings and provide the underlying basis for her claims, the court briefly summarizes them.

A. Underlying state court proceedings

The first set of state proceedings concern an action filed by Plaintiff in Wake County Superior Court, 07 CV 5130, asserting claims arising out of a 2002 Arbitration Agreement. Plaintiff entered into the 2002 Arbitration Agreement during state court litigation, 98 CVS 14297, against her arising out of a 1998 construction contract. See Amended Complaint II [DE–36] p. 2, ¶¶ 49, 55; Dalenko v. Peden General Contractors, Inc., 197 N.C.App. 115, 117–20, 676 S.E.2d 625, 627–29 (2009) (per curiam).² The court hereinafter will refer to these proceedings as Peden. The Wake County Superior Court issued rulings adverse to Plaintiff, and specifically ordered:

Any further claims or actions filed by Plaintiff, Dalenko (formerly Carol Bennett) arising out of, and/or related to, Peden v. Bennett, 98 CVS 14297, Wake County Superior Court, including, but not limited to, any order or decree entered in that case and/or the facts related to the proceedings in that case, are without lawful basis and are specifically prohibited. If Plaintiff hereafter violates this prohibition, she may be subject to criminal contempt of court.

Peden, 197 N.C.App. at 119, 676 S.E.2d at 629 (“The 2007 Gatekeeper Order”). After a series of rulings adverse to Plaintiff, she filed an appeal to the North Carolina Court of Appeals, which affirmed the various rulings issued by the Wake County Superior Court. Id. at 129, 676 S.E.2d at 634. In the course of its opinion, the North Carolina Court of Appeals made reference to a 2001 Gatekeeper Order entered against Plaintiff. Id. at 118 n. 1, 676 S.E.2d at 628 (citing Dalenko v. Collier, 191 N.C.App. 713, 664 S.E.2d 425,appeal dismissed,362 N.C. 680, 670 S.E.2d 563 (2008)). The 2001 Gatekeeper Order provided:

So long as [Dalenko] does not qualify as an indigent pursuant to N.C.G.S. 1–110, she shall not file, or attempt to file, any documents with the Office of the Clerk of Superior Court of Wake County unless such document contains a certification by an attorney licensed under the laws of the State of North Carolina to practice law in North Carolina that in the opinion of that attorney the document complies with Rule 11 of the Rules of Civil Procedure. The certification shall also contain a recitation that the attorney has read and is aware of the requirements of this Order. A failure to comply with the certification requirementas set forth herein shall result in the dismissal or striking of the pleading or pleadings and the denial of the motion or motions.

Dalenko v. Monroe, 197 N.C.App. 231, 676 S.E.2d 670, 2009 WL 1383333 (N.C.Ct.App. May 19, 2009)(unpublished).

The second set of state proceedings concern an action in which Plaintiff appeared as executrix of her late father's estate in Wake County Superior Court, 07 CVS 1640. Amended Complaint II [DE–47] p. 3, ¶ 75. Again, after rulings adverse to her, Plaintiff filed an appeal to the North Carolina Court of Appeals, which affirmed the lower court's orders. See Dalenko v. Monroe, 197 N.C.App. 231, 676 S.E.2d 670, 2009 WL 1383333 (May 19, 2009) (unpublished). The court will refer to this set of proceedings as Monroe.

The third set of state proceedings concern a libel action Plaintiff filed in Wake County Superior Court, 06 CVS 14229, concerning a 2004 article published in the News & Observer. Amended Complaint II [DE–47] p. 2, ¶¶ 92–105. Again, after adverse rulings, Plaintiff filed an appeal which was unsuccessful. Bennett v. News and Observer Publishing Company, 680 S.E.2d 904, 2009 WL 2138669 (N.C.Ct.App. July 7, 2009). The court will refer to these proceedings as N & O.

B. Selected previous related federal litigation

Plaintiff filed Dalenko v. Peden General Contractors, Inc., et al., 5:10–CV–287–F (hereinafter “ Dalenko I ”), on July 20, 2010, alleging, inter alia, that Superior Court Judges Donald W. Stephens and Shannon R. Joseph and North Carolina Court of Appeals Judges Sanford L. Steelman, Jr., Barbara A. Jackson and Donna S. Stroud violated her due process rights under the Fourteenth Amendment and her right to contract under Article I of the United States Constitution through their actions and inactions in the course of the Peden litigation and appeal. Dalenko filed a Notice of Voluntary Dismissal of her claims on March 7, 2011. See Amended Complaint (II) [DE–47] p. 1.

Plaintiff filed Dalenko v. Stephens, et al., 5:10–CV–432–H (hereinafter Stephens I ) on October 8, 2010, alleging, inter alia, that Superior Court Judges Stephens, William R. Pittman, and Kenneth C. Titus, and North Carolina Court of Appeals Judges Jackson, James A. Wynn, Jr., and Robert N. Hunter, Jr.:

acted under color of law without jurisdiction, to deprive her of property rights ... without “due process” in violation of her Fourteenth Amendment rights in her state civil libel suit against N & O and on appeal, and barred her access to the courts and imprisoned her to deter her from petitioning for redress of grievances according to her lawful rights in violation of her First, Fifth, Seventh, and Fourteenth Amendment rights, and deprived plaintiff of her First Amendment right to vindicate her reputation ... and that defendant judges should be enjoined in their official capacities from further injury to the plaintiff in her rights and her person, and are liable to her in their individual capacities when they lacked subject-matter jurisdiction in their official capacities....

Stephens I, 5:10–CV–432–H, Compl. [DE–1] p. 17. Plaintiff's claims in Stephens I arose in the course of her N & O litigation in state court. Senior United States District Judge Malcolm J. Howard dismissed Plaintiff's complaint in an order filed on July 7, 2011 for lack of jurisdiction. Stephens I., 5:10–CV–432–H, July 7, 2011, Order [DE–60].

C. The current action

Plaintiff initiated the instant action by filing a Complaint [DE–1] on March 7, 2012, alleging that Defendants Stephens, Joseph, Steelman, Jackson and Stroud, all judicial officers, acted under color of state law to deprive her of property, civil liberties, and freedom without prior notice or meaningful opportunity to be heard in violation of her due process rights under the Fourteenth Amendment throughout the course of the Peden I litigation. Compl. [DE–1]. She alleged that she is entitled to declaratory relief “to protected her federally guaranteed rights in state superior court” and sought damages against Defendants individually. Id.

On May 22, 2012, Plaintiff filed a “Joined Complaint” [DE–9] alleging claims against North Carolina Court of Appeals Judges Robert C. Hunter, Wynn, and Sam Ervin, IV. Specifically, Plaintiff alleged Judges Hunter, Wynn, and Ervin deprived her rights in the course of her appeal in the Monroe litigation, and she asserted she was entitled to declaratory relief against these defendant “to protect her rights on appeal in state court” and she sought damages against each defendant.

In response to the filing of the Joined Complaint [DE–9], the court issued an order on May 25, 2012, observing that Dalenko may file an amended complaint once as matter of course pursuant to Federal Rule of Civil Procedure 15(a), and she appears to have attempted to do this through the filing of the “Joined Complaint.” May 25, 2012 Order [DE–13]. The court observed that “[r]ather than filing a completely separate document with new allegations and newly-named defendants, however, Dalenko should have just filed one amended complaint which contains her allegations and claims against all the defendants.” Id. Accordingly, the court ordered Plaintiff to file within 21 days, “one amended complaint which lists all of the defendants in the caption and contains all of her allegations and claims.” Id. Plaintiff apparently took this Order to be an invitation to file, without leave, a complaint which not only named the defendants in the Original Complaint and Joined Complaint, but also included additional defendants and claims, including those ostensibly asserted in the Stephens I action before Judge Howard. See Amended Complaint [DE–25]. Additionally, Plaintiff included allegations that Defendant F. Blare Williams, Assistant Clerk for the Wake County Superior Court, refused to docket a new action for libel against new parties relating to her prior civil action for libel in Wake County until Plaintiff complied with the 2001 Gatekeeper Order issued by the Wake County Superior Court. She also alleged that Wake County Sheriff Donald Harrison and “unnamed” prison officers and guards violated her rights while she was confined in the Wake County Jail from November 2 to November 9, 2009. After receiving leave of court, Plaintiff filed another amended complaint, denominated “Amended...