Gilbert v. North Carolina State Bar

• Decision Date: 14 September 2009
• Docket Number: No. 5:09-CV-383-D.,5:09-CV-383-D.
• Citation: 660 F.Supp.2d 636
• Parties: Willie D. GILBERT, II, Plaintiff, v. The NORTH CAROLINA STATE BAR, and A. Root Edmonson, Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

660 F.Supp.2d 636

Willie D. GILBERT, II, Plaintiff, v. The NORTH CAROLINA STATE BAR, and A. Root Edmonson, Defendants.

No. 5:09-CV-383-D.

United States District Court, E.D. North Carolina, Western Division.

September 14, 2009.

COPYRIGHT MATERIAL OMITTED

Eric C. Michaux, Michaux & Michaux, P.A., Durham, NC, for Plaintiff.

ORDER

JAMES C. DEVER, III, District Judge.

Willie D. Gilbert, II ("Gilbert" or "plaintiff") brings this action against the North Carolina State Bar ("State Bar") and A Root Edmonson ("Edmonson") (collectively "defendants"). Gilbert seeks declaratory and injunctive relief against the State Bar and monetary and injunctive relief against Edmonson for the State Bar's ongoing attorney disciplinary proceeding against Gilbert. Contemporaneous with filing his complaint, Gilbert filed a motion for temporary restraining order and a motion for preliminary injunction [D.E. 2.]. On September 4, 2009, the court held a hearing. Before the hearing, the court advised the parties to prepare to address the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny [D.E. 3].

As explained below, pursuant to Younger and its progeny, the court abstains from plaintiffs claims against the State Bar and Edmonson in his official capacity seeking injunctive relief and dismisses those claims with prejudice. The court stays the balance of the claims seeking monetary relief against Edmonson in his individual capacity. Because the court dismisses Gilbert's claims seeking injunctive relief, the court denies Gilbert's motions for temporary restraining order and preliminary injunction.

I.

In August 1990, the North Carolina State Bar ("State Bar") licensed Willie D. Gilbert, II ("Gilbert or plaintiff") to practice law in the State of North Carolina. Compl. ¶ 14. Essentially, Gilbert alleges that the State Bar and Edmonson, a prosecutor for the State Bar, have acted vindictively and in bad faith in taking various actions against him. See id. ¶¶ 8, 20-92.

Between February 2000 and September 2003, the State Bar filed three actions against Gilbert. First, on February 15, 2000, the State Bar brought an administrative action before the State Bar's Disciplinary Hearing Commission ("DHC"), alleging that Gilbert violated the North Carolina Revised Rules of Professional Conduct ("RRPC") while representing three clients between 1997 and 1999 ("Gilbert I"). See Gilbert v. N.C. State Bar, 363 N.C. 70, 72, 678 S.E.2d 602, 603 (2009). The DHC held a four-day hearing and, at the conclusion, entered a disciplinary order, concluding that plaintiff had violated Rules 1.5, 1.7, 1.15-2(h), 8.4(b), 8.4(c), 8.4(d), and 8.4(g) of the RRPC. See id. at 72, 678 S.E.2d at 603-04. The DHC suspended Gilbert's license to practice law for five years, but stayed the last three years of the suspension upon enumerated conditions. See id. at 72, 678 S.E.2d at 604. On July 16, 2002, the North Carolina Court of Appeals affirmed the DHC order. N.C. State Bar v. Gilbert, 151 N.C.App. 299, 566 S.E.2d 685 (2002). On October 2, 2003, the North Carolina Supreme Court affirmed the North Carolina Court of Appeals. N.C. State Bar v. Gilbert, 357 N.C. 502, 586 S.E.2d 89 (2003) (per curiam).

Second, on April 18, 2002, while the Gilbert I appeal was pending, the State Bar, on behalf of its Client Security Fund ("CSF"), brought a civil action in Wake County District Court to recover $4,627.43 from Gilbert that the CSF paid one of Gilbert's clients ("Gilbert II"). See Gilbert, 363 N.C. at 73, 678 S.E.2d at 604. The Wake County District Court held a bench trial in January 2004, found Gilbert liable, and awarded the State Bar double damages pursuant to N.C. Gen.Stat. § 84-13, totaling $9,254.86 plus interest. See id. On appeal, the North Carolina Court of Appeals affirmed the trial court's judgment in part, but remanded the action for additional findings as to Gilbert's affirmative defenses. N.C. State Bar v. Gilbert, 176 N.C.App. 408, 626 S.E.2d 877 (2006). On remand, the Wake County District Court entered judgment in favor of the State Bar. See Gilbert, 363 N.C. at 73, 678 S.E.2d at 604. On the second appeal of Gilbert II, the North Carolina Court of Appeals affirmed the Wake County District Court's judgment in part, but remanded with instructions to recalculate the interest pursuant to N.C. Gen.Stat. § 24-5(b). N.C. State Bar v. Gilbert, 189 N.C.App. 320, 663 S.E.2d 1 (2008).

Third, on September 12, 2003, the State Bar filed a second disciplinary action against Gilbert, alleging that, in April 1998, Gilbert had misappropriated funds from his trust account and failed to pay client funds promptly to third parties ("Gilbert III"). See Gilbert, 363 N.C. at 73, 678 S.E.2d at 604. In response, on November 18, 2003, Gilbert filed a motion to dismiss, moved for sanctions, answered the complaint, and asserted counterclaims. Among Gilbert's defenses in Gilbert III are that the DHC lacks jurisdiction over the subject matter, that the State Bar has been unconstitutionally designated, and that the prosecution is vindictive and in bad faith in violation of the United States Constitution and the North Carolina Constitution. See Mot. to Dismiss, Mot. for Sanctions, Answer to Compl. & Counterclaims, N.C. State Bar v. Gilbert, 03 DHC 16 (Disciplinary Hearing Comm'n Nov. 18, 2003), available at http://www. ncbar.gov/discipline/DHC_File_DHC_file_ filename_bv.asp?DHC_file_doc=130 (last visited Sept. 14, 2009).¹ Gilbert's counterclaims include vindictive prosecution/enforcement, deprivation of procedural due process, and deprivation of substantive due process, in violation of the United States Constitution and the North Carolina Constitution. See id. at 5-14.

In 2004, while Gilbert III was pending before the DHC, Gilbert filed a civil action in Wilson County Superior Court against the State Bar, asserting claims under 42 U.S.C. § 1983 and the North Carolina Constitution and alleging, inter alia, that the State Bar was prosecuting Gilbert III in bad faith. See Gilbert, 363 N.C. at 73, 678 S.E.2d at 604. Gilbert sought injunctive and monetary relief for the alleged violations of his substantive and procedural due process rights. See id. On April 9, 2004, the Wilson County Superior Court granted Gilbert an ex parte temporary restraining order ("TRO"), enjoining the State Bar from proceeding with further prosecution of Gilbert III. See id. At the preliminary injunction hearing, the State Bar argued that the trial court lacked jurisdiction to enjoin a disciplinary action pending before the DHC. See id. Gilbert contended that the DHC did not have the authority to consider constitutional issues, so the Wilson County Superior Court was the appropriate forum to bring these constitutional claims. See id, at 73-74, 678 S.E.2d at 604. After considering the arguments, the Wilson County Superior Court granted Gilbert's motion for a preliminary injunction. See id. at 74, 678 S.E.2d at 604.

On August 3, 2004, the State Bar filed a motion in the Wilson County Superior Court to dismiss Gilbert's complaint. See id. On October 13, 2004, Gilbert moved for partial summary judgment on the issue of liability for violations of his procedural and substantive due process rights. See id. at 74, 678 S.E.2d at 604-05. The Wilson County Superior Court converted the State Bar's motion to dismiss to one for summary judgment. At oral argument on the motion for partial summary judgment, the Honorable Toby Fitch of the Wilson County Superior Court stated:

[I]t smacks in the face of fairness when you have a man that you take a period of time, you go in and you find three people, you prosecute him on those three, and there were six people there at the same time, and instead of prosecuting him on six and doing whatever you want to do to him, you choose to do three of them, have a time of suspension to run, and then come back when that time of suspension runs and says, oh, yes, I got three more that I didn't prosecute you on so I want to now prosecute you on those matters. And that, right or wrong, in my mind is where I have the problem, because—and that's why I used the terms that the State Bar knew or should have known, having done the investigation of the trust account, that those violations were there.

Id., 678 S.E.2d at 604-05 (quotation omitted).

On September 12, 2005, the Wilson County Superior Court granted Gilbert's motion for partial summary judgment and permanently enjoined the State Bar from prosecuting Gilbert III. See Gilbert, 363 N.C. at 74, 678 S.E.2d at 605. The court also expressly retained jurisdiction over the action to enforce the injunction, calculate compensatory damages, and award attorney's fees. See id.

The State Bar appealed, and the North Carolina Court of Appeals dismissed the State Bar's appeal as one from an interlocutory order not affecting a substantial right. Gilbert v. N.C. State Bar, 180 N.C.App. 690, 639 S.E.2d 143 (2006). The North Carolina Supreme Court allowed the State Bar's petition for discretionary review regarding "(1) whether the Court of Appeals erred by dismissing [the State Bar's] appeal as interlocutory, and (2) whether the superior court had jurisdiction to enjoin permanently [the State Bar's] prosecution of plaintiff in an administrative disciplinary proceeding before the DHC." Gilbert, 363 N.C. at 75, 678 S.E.2d at 605.

On March 20, 2009, the North Carolina Supreme Court reversed the North Carolina Court of Appeals. Id. at 86, 678 S.E.2d at 612. As to the first issue, the North Carolina Supreme Court held that the State Bar had a substantial right in prosecuting its disciplinary action against Gilbert, and, therefore, the order was appealable. See id. at 75-77, 678 S.E.2d at 605-06. As to the second issue, the North Carolina Supreme Court held that Gilbert failed to state a claim under section 1983 "because (1) substantive due process does not provide an individual right to be free from either vindictive or...