Polidi v. Bannon

226 F. Supp. 3d 615, 2016 U.S. Dist. LEXIS 181633, 2016 WL 8135476
CourtDistrict Court, E.D. Virginia
DecidedDecember 28, 2016
DocketCase No. 1:16-cv-1535
StatusPublished
Cited by16 cases

This text of 226 F. Supp. 3d 615 (Polidi v. Bannon) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polidi v. Bannon, 226 F. Supp. 3d 615, 2016 U.S. Dist. LEXIS 181633, 2016 WL 8135476 (E.D. Va. 2016).

Opinion

ORDER

T.S. Ellis, III, United States District Judge

The matter is before the Court on the pro se plaintiffs application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Because plaintiff has made the requisite showing, his application to proceed in forma pauperis must be granted.

Importantly, however, § 1915(e) requires that a complaint filed in forma pau-peris be dismissed if at any time it is determined that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In determining whether to dismiss a case pursuant to § 1915(e), a district court has “wide latitude” and “meaningful discretion.” Nagy v. FMC Butner, 376 F.3d 252, 256 (4th Cir. 2004).

With respect to failure to state a claim, the familiar plausibility pleading standard applies. See De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). Under that standard, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).1 In addition, an action is frivolous when it “lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. [617]*617319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Notably, in evaluating whether a complaint must be dismissed as frivolous pursuant to § 1915(e), “district courts are at liberty to consider any factors that experience teaches bear on the question of [frivolousness]” Nagy, 376 F.3d at 257.

I.

This case is the fifth lawsuit that plaintiff, a disbarred attorney, has filed in this district in connection with his disbarment by the North Carolina State Bar (“NCSB”) or the United States Patent and Trademark Office (“USPTO”). With respect to his disbarment in North Carolina, plaintiff signed a consent order of disbarment and a sworn, notarized “Affidavit of Surrender,” affirming, inter alia:

(i) that plaintiff freely and voluntarily resigned his bar license;
(ii) that he was under investigation by the NCSB for misuse of funds that plaintiff received in connection with the representation of a client;
(iii) that the material facts upon which the NCSB’s investigation was predicated were true; and
(iv) that plaintiff was submitting his resignation because “if disciplinary charges were predicated upon the misconduct under investigation [by the NCSB], [plaintiff] could not successfully defend against them.”

North Carolina State Bar v. Polidi, 14CV009738 (N.C. Super. Ct. July 21, 2014) (Affidavit of Surrender).2

Despite this sworn affidavit, plaintiff has filed the following lawsuits—two of which have already been dismissed pursuant to § 1915(e):

(i) In August 2015, plaintiff filed a claim seeking judicial review of the USPTO’s decision to disbar him. The USPTO’s decision was affirmed, and plaintiffs petition was therefore dismissed. Plaintiff subsequently appealed, which appeal was docketed on May 5, 2016 and is still pending.3
(ii) In September 2015, a month after filing his first suit, plaintiff brought 42 U.S.C. § 1983 and malicious prosecution claims against a federal officer and one of the defendants in the instant case. Plaintiff voluntarily dismissed all claims in this § 1983 and malicious prosecution suit against all defendants.4
[618]*618(iii) Approximately a year later, in October 2016, plaintiff filed defamation and § 1983 claims against the NCSB and unknown “John Doe” NCSB employees. That complaint was dismissed, pursuant to § 1916(e), as frivolous, for failure to state a claim, and for seeking money damages against a defendant who is immune from such relief.5 Plaintiff subsequently filed a “Motion For New Hearing,” invoking Rules 52, 69, and 60, Fed. R. Civ. P., which motion was denied.6
(iv) Then, on December 9, 2016, plaintiff filed a lawsuit against the lawyers and firm that represented plaintiff in connection with the NCSB disbarment proceedings, alleging § 1983 and § 1986 claims, as well as three state-law claims. On December 22, 2016, the federal claims in that case were dismissed pursuant to § 1916(e) as frivolous and for failure, to state a claim, and the remaining state-law claims were dismissed pursuant to 28 U.S.C. § 1367(c).7
(v) The instant action was also filed on December 9, 2016. Plaintiffs original Complaint in this action named as defendants (i) the NCSB, (ii) three named employees of the NCSB in their official and individual capacities, (iii) an individual named Douglas Bell, and (iv) fifteen “Jane” or “John Does.” The original Complaint alleged four causes of action: (i) a § 1983 claim; (ii) a § 1985 claim, (iii) abuse of process, and (iv) breach of fiduciary duty.8

On December 27, 2016—five days after plaintiffs suit against his former lawyers was dismissed—plaintiff filed an Amended Complaint (“AC”) in the instant action.9 Plaintiff now alleges claims against only (i) Carmen Bannon, individually and in her official capacity as a prosecutor employed by the NCSB, and (ii) Douglas Bell, a private citizen who submitted a complaint against plaintiff to the NCSB.10 The AC alleges the following causes of action: (i) a § 1983 claim; (ii) a § 1985 claim; (iii) breach of fiduciary duty; (iv) abuse of process; (v) conversion; (vi) interference with contract; (vii) malicious prosecution; and (viii) intentional infliction of emotional distress. Plaintiff seeks money damages and declaratory relief. These Claims are addressed as follows.

[619]*619A. Section 1983

To state a claim under § 1983, “a plaintiff must allege that he was ‘deprived of a right secured by the Constitution or laws of the United States, and that- the alleged deprivation was committed under color of state law.’ ” Thomas v. Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)). Section 1983’s “color of state law” requirement is “synonymous with the more familiar state-action requirement,” and “the analysis for each is identical.” Philips v. Pitt Cnty.

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Cite This Page — Counsel Stack

Bluebook (online)
226 F. Supp. 3d 615, 2016 U.S. Dist. LEXIS 181633, 2016 WL 8135476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polidi-v-bannon-vaed-2016.