Dingle v. Khan

Decision Date20 February 2020
Docket Number5:19-CV-129-D
CourtU.S. District Court — Eastern District of North Carolina
PartiesRANDY DINGLE, Plaintiff, v. BENJAMIN KHAN, et al., Defendants.

MEMORANDUM AND RECOMMENDATION

This pro se case is before the court, in part, for a frivolity review of the complaint (D.E. 1) filed by plaintiff Randy Dingle ("plaintiff"). It is also before the court on 21 motions:

(1) 13 motions to dismiss by, respectively, defendants Two Men and a Truck (D.E. 13); Natasha Barone ("Barone") and Michael B. Stein ("Stein") (D.E. 16); Mickey Locklear, Greg Morrison, and Terry Ray (D.E. 41); William Hill ("Hill") (D.E. 48); Bragg Mutual Credit Union (D.E. 75); Allen Kerr (D.E. 81); Benjamin Lovell (D.E. 85); Richard M. Hutson, II (D.E. 87); Shapiro & Ingle, LLP (D.E. 92); Joseph N. Callaway ("Judge Callaway") and Benjamin Khan ("Judge Khan") (D.E. 94); Timothy J. Peterkin ("Peterkin") (D.E. 98); Mitch Edwards (D.E. 100); and Gregg Edwards (D.E. 103);

(2) a motion to strike by Two Men and a Truck (D.E. 112);

(3) plaintiff's 5 motions for entry of default as to defendants Alonzo Dingle (D.E. 116); Bruce Bullock (D.E. 117); Jacquelyn Faye Carter (D.E. 118); Patricia Ellen Watson Dingle (D.E. 119); and Natashia Dingle (D.E. 120); and

(4) plaintiff's 2 motions for statements to be entered into evidence (DE. 127, 128).

As set out below, it will be recommended, based on the frivolity review, that plaintiff's complaint be dismissed for lack of subject matter jurisdiction and, alternatively, failure to state a claim upon which relief can be granted. It will be further recommended that each of the pending motions before the court be denied as moot.

I. PLAINTIFF'S ALLEGATIONS

In this action, commenced on 4 April 2019, plaintiff asserts claims against 22 defendants that appear to arise from or relate to other court proceedings involving plaintiff. See generally Compl. (D.E. 1). Specifically, he alleges as follows:

Plaintiff "became a target" starting in April of 1985. Id. at 11.1 He contends that Jim Spell, a real estate broker, allowed the Cumberland County Courthouse to assume the V.A. loan on plaintiff's home in Fayetteville, North Carolina and has been committing fraudulent acts to this day.2 Id.

In 2016, Judge Callaway disallowed a claim made by Ditech Financial LLC, presumably in a bankruptcy proceeding, which "was spearheaded by Michael Stein and Natasha Barone of the Hutchens Law Firm, Gregg Edwards, Timothy Peterkin (attorney), Cumberland County Sheriff Department, Cumberland County House, Judge Talmage S. Baggett, Ellen B. Hancox, (Clerk of Court), William Hill attorney for North State, Mitch Edwards owner of Edwards Auto Sales." Id. at 12. The claim was disallowed by Judge Callaway because it was not a secure loan. Id. at 13. Judge Callaway gave Patricia Ellen Watson Dingle a voucher for an automobile at a low interest rate. Id.

Stein, an attorney, had full knowledge that Conseco Financial, Greentree Financial, and Ditech Financial LLC3 were manufacturing and tampering with evidence. Id. at 11. Judge Khan was aware of the problems in the proceedings, but continued "to commit fraud, abuse of authority, racketeering, unlawful determinations, and human trafficking." Id.

In August of 2017, all defendants in the action failed to uphold their AO 1534 pocket card with integrity and violated their fiduciary duties. Id. at 12. Defendants "attempted to extort perjury, filing false claims, trying to embezzle, committing bribery, placing or filing of unlawful lien, levy, burden, liability, garnishment, encumbrance of attachment, unfounded accusation and unlawful arrest, and duplicating a United State Department of Defense Identification Card." Id.

Judge Baggett issued an order for eviction, and in September of 2017, Cumberland County Sheriff Department deputies came with guns drawn.5 Id. at 14. Plaintiff called attorney Peterkin, who called the attorney for the Sheriff Department to advise that plaintiff filed for bankruptcy the day before. Id.

The only thing plaintiff owned to take into the bankruptcy proceedings was a truck he purchased in June of 2017. Id. He purchased the truck from Mitch Edwards at Edwards Auto Outlet, Inc. Id. Not only would Mitch Edwards not accept plaintiff's payoff amount, but he duplicated the United States Department of Defense identification cards for plaintiff and plaintiff's wife, which is a violation of law. Id. at 15. Mitch Edwards did this so that he could accrue moreinterest on the auto loan. Id. North State's attorney, Hill, similarly stated that plaintiff owed a higher balance than he actually did. Id.

In August of 2018, orders issued by Sheriff Ennis Wright and Judge Baggett forced plaintiff to be evicted from his home.6 Id. at 16. The deputies completed the eviction at gun point. Id. Plaintiff has not seen his wife since the time of the eviction, because she was either kidnapped or committed alienation of affection. Id. at 16, 18.

In September of 2018, Natashia Dingle, Alonzo Dingle, and Jacquelyn Faye Carter, with assistance from Peterkin, sent a letter to Judge Kahn indicating that plaintiff and his wife had some form of mental issue. Id. at 16.

Plaintiff contends that the court has subject matter jurisdiction under 18 U.S.C. § 241 (relating to criminal conspiracy to violate constitutional rights) and § 242 (relating to criminal deprivation of rights under color of law). Id. at 9. He seeks monetary relief in the amount of $90 million "in lawful currency of US Silver or Gold according to the Coinage Act of 1792." Id. at 20.

II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW

A case brought by a person who is proceeding in forma pauperis, that is, without prepaying filing fees, is subject to a frivolity review under 28 U.S.C. § 1915(e)(2)(B). Plaintiff did prepay the filing fee, and therefore this case is not subject to a frivolity review under § 1915(e)(2)(B). This case is, though, subject to a frivolity review pursuant to the inherent authority of the court to conduct such reviews. See Ross v. Baron, 493 F. App'x 405, 406 (4th Cir. 2012) ("[F]rivolous complaints are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee has been paid."); Mills v. Greenville Cty., 586 F. Supp. 2d 480, 487 (D.S.C. 2008)("Further, even though the full filing fee has been paid, the pro se and non-prisoner [plaintiff's] claims are also subject to an initial sua sponte review by the Court pursuant to the Court's inherent authority to ensure that a plaintiff has standing, that subject matter jurisdiction exists, and that a case is not frivolous."); see also Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 307 (1989) ("Statutory provisions may simply codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a 'frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision." (dicta)).

While not controlling, Section 1915(e)(2)(B), as well as the case law interpreting it, offer useful guidance on the standards that should govern a frivolity review conducted, as here, pursuant to the court's inherent authority. Section 1915(e)(2)(B) provides that the court must dismiss a case if it determines that the action is frivolous or malicious, 28 U.S.C. § 1915(e)(2)(B)(i); fails to state a claim upon which relief can be granted, id. § 1915(e)(2)(B)(ii); or seeks monetary relief from an immune defendant, id. § 1915(e)(2)(B)(ii). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness).

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain "a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the complaint must "'state[ ] a plausible claim for relief that 'permit[s] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely "labels and conclusions," "a formulaic recitation of the elements ofa cause of action," or "naked assertion[s]" devoid of "further factual enhancement." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).

In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to "less stringent standards" than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. Instead, the court is permitted to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.

A court may consider subject matter jurisdiction as part of the frivolity review. 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"); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. 8 Jan. 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). "Federal courts are courts of limited jurisdiction...

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