Short v. North Carolina
| Decision Date | 12 January 2016 |
| Docket Number | CIVIL ACTION NO. 1:15-CV-44-GCM-DSC |
| Parties | TODD W. SHORT, Plaintiff, v. STATE OF NORTH CAROLINA, et. al., Defendants. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on the following Motions:
1. "Verified Motion to Dismiss Action Against Defendants Matney & Associates, P.A. and David E. Matney, III" (document #125) filed August 24, 2015;
2. "Verified Motion to Dismiss Action Against Defendant Lawrence E. Thompson, III" (document #127) filed August 24, 2015;
3. Defendant Marianne Redmond's "Motion to Dismiss Pursuant to Rule 4(M) of the Federal Rules of Civil Procedure" (document #147) filed August 28, 2015;
4. Defendant F. Lachicotte Zemp, Jr.'s "Motion to Dismiss Pursuant to Rule 4(M) of the Federal Rules of Civil Procedure" (document #150) filed August 28, 2015;
5. "Motions [to Dismiss] of Steven Kropelnicki and Carter & Kropelnicki, P.A." (document #160) filed September 2, 2015;
6. "Defendant Ace American Insurance Company's Motion to Dismiss" (document #176) filed September 7, 2015; 7. "Defendant Great American Insurance Company's Motion to Dismiss the Complaint" (document #177) filed September 8, 2015;
8. "Defendant Roberts & Stevens, P.A.'s Motion to Dismiss for Failure to State a Claim" (document #183) filed September 11, 2015;
9. "Motion of Defendant Jennifer B. Formichella to Dismiss Pursuant to Rule 4(m) of the FRCP" (document #199) filed September 15, 2015;
10. "Motion to Dismiss by Defendant John Bramlett" (document #206) filed September 18, 2015;
11. "Motion To Dismiss Pursuant To 12(b)(6)" by Defendant Buncombe County, North Carolina (document #211) filed September 18, 2015;
12. "Motion to Dismiss on Behalf of Defendant William E. Loose Fed. R. Civ. P. 12(b)(1), (5) and (6) and Motion to Strike Fed. R. Civ. P. 12(f)" (document #218) filed September 30, 2015;
13. Defendants Sandra Layton, Blair Clark and Parkway Behavioral Health, LLC's "Motion to Dismiss" (document #220) filed October 6, 2015;
14. Defendant Arthur Carder's "Motion to Dismiss" (document #224) filed October 6, 2015;
15. Defendants Elizabeth A. Martineau, Guiselle F. Mahon and Martineau King, PLLC's "Motion to Dismiss" (document #228) filed October 8, 2015;
16. "Motion to Dismiss on Behalf of Defendant North Carolina Department of Health and Human Services (Fed. R. Civ. P. 12(b)(1), (2) and (6))" (document #230) filed October 8, 2015;
17. Defendant Smoky Mountain LME/MCO's "Motion to Dismiss" (document #232) filed October 8, 2015; 18. "Motion to Dismiss by Defendants Cheryl A. Dommer and Scottsdale Insurance Company" (document #234) filed October 8, 2015; and
19. Defendants State of North Carolina, North Carolina Clerks of Superior Court for the North Carolina Unified Court System, Richard Schumacher, Robert H. Christy, Jr., Edwin D. Clontz, Steven D. Cogburn, Tammy C. Case, and Ann Melton's "Motion to Dismiss" (document #236) filed October 15, 2015.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and these Motions are now ripe for the Court's consideration.
Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendants' Motions to Dismiss be granted as to Plaintiff's federal claims and that the Court decline supplemental jurisdiction of any remaining state law claims, as discussed below.
Plaintiff's claims arise out of state court proceedings in 2002 where he was adjudicated incompetent and a guardian ad litem was appointed. See "Verified Amended Complaint ..." (document #21). See also "Order" dated July 14, 2015 (document #63) (since Plaintiff failed to file his Second Amended Complaint within the time allowed, the Verified Amended Complaint is the operative pleading.)
Plaintiff's Verified Amended Complaint is hardly "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To the contrary, the Verified Amended Complaint contains 149 pages, 609 numbered paragraphs- 528 of which purport to be factual allegations- and forty exhibits. Plaintiff's meandering allegations are nearly incomprehensible.
In his "Omnibus Memorandum of Law in Opposition to Defendants' Respective Motions to Dismiss" (document #245) and his "Supplement... to His Omnibus Memorandum ..." (document #248), Plaintiff argues that N.C. Gen. Stat. § 35A-1101, et. seq., which governs incompetency and guardianship, violates his rights under the Americans with Disabilities Act ("ADA") and the Sixth and Fourteenth Amendments. According to Plaintiff, the appointment of counsel during these proceedings is "forced representation" which violates his right to represent himself. See Document #245 at 2-3, 7-8 and Document #248 at 9. Plaintiff does not advance any other claims arising under federal or state law.
Defendants' Motions to Dismiss have been fully briefed and are ripe for determination.
In reviewing a Rule 12(b)(6) motion, "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In Iqbal, the Supreme Court articulated a two-step process for determining whether a complaint meets this plausibility standard. First, the court identifies allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy "because of" its adverse effects on protected group was conclusory and not assumed to be true). Although the pleading requirements stated in "Rule 8 [of the Federal Rules of Civil Procedure] mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79.
Second, to the extent there are well-pleaded factual allegations, the court should assume their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. "Determining whether a complaint contains sufficient facts to state a plausible claim for relief "will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.. "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief,'" and therefore should be dismissed. Id. (quoting Fed. R. Civ. P. 8(a)(2)).
The Court is mindful of the latitude extended to the pleadings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should "[c]onstru[e] petitioner's inartful pleading liberally"). However, courts cannot act as the pro se plaintiff's advocate or develop claims which the plaintiff failed to raise clearly on the face of his complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (). See also Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Accepting Plaintiff's argument that the statute of limitations was tolled until his competency was restored on March 2, 2012, the two-year statute of limitations on his ADA claim expired before he filed his Complaint on March 2, 2015.
Because Congress has not adopted a specific statute of limitations for actions under the ADA and Section 504, the analogous state statute of limitations applies. North Carolina's most analogous statute to the ADA and Section 504 is the Persons with Disabilities Protection Act ("PDPA"), N.C. Gen. Stat. ch. 168A. The PDPA provides a two-year statute of limitations for non-employment-related claims. See N.C. Gen. Stat. § 168A-12. Accordingly, "[c]laims brought pursuant to Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act are both subject to the two-year statute of limitations set forth in North Carolina's Persons with Disabilities Protection Act."
J.W. v. Croom, No. 5:11-CV-707-D, 2012 U.S. Dist. LEXIS 136300, at *16-17 (E.D.N.C. Sept. 24, 2012) (internal citations omitted); see also Mary's House, Inc. v. North Carolina, 976 F. Supp. 2d 691 (M.D.N.C. 2013) ()
Although the limitations periods for claims brought under the ADA and Section 504 are borrowed from state law, the time for accrual of an action is a matter of federal law. A claim accrues when the plaintiff knows or has reason to know of the injury forming the basis of an action.
J.W. v. Croom, No. 5:11-CV-707-D, 2012 U.S. Dist. LEXIS 136300, at...
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