Dalenko v. Stephens

917 F. Supp. 2d 535, 2013 WL 97449, 2013 U.S. Dist. LEXIS 2618
CourtDistrict Court, E.D. North Carolina
DecidedJanuary 8, 2013
DocketNo. 5:12-CV-122-F
StatusPublished
Cited by18 cases

This text of 917 F. Supp. 2d 535 (Dalenko v. Stephens) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalenko v. Stephens, 917 F. Supp. 2d 535, 2013 WL 97449, 2013 U.S. Dist. LEXIS 2618 (E.D.N.C. 2013).

Opinion

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 action1 in this court filed by the pro se Plaintiff arises out of various North Carolina court proceedings involving the Plaintiff. Be[538]*538cause the state proceedings are explicitly-referenced in Plaintiffs 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 require[539]*539ment as 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. Steel-man, 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. Plaintiffs 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 Plaintiffs complaint in an order filed on July 7, 2011 for lack of jurisdiction. Stephens 7, 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, [540]

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917 F. Supp. 2d 535, 2013 WL 97449, 2013 U.S. Dist. LEXIS 2618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalenko-v-stephens-nced-2013.