Opinion
5:20-CV-101-BO
05-21-2021
VINCENT PROCOPIO, individually and as Personal Representative of the Estate of Robert Procopio, Jr., Plaintiff, v. SUPER 8 WORLDWIDE, INC, a subsidiary of Wyndham Worldwide; WAKEMED RALEIGH CAMPUS; JEFFREY ABRAMS, M.D.; RODNEY MCCASKILL, M.D.; ANDREY BELAYEV, M.D.; CAROLINA DONOR SERVICES, INC.; RALEIGH POLICE DEPARTMENT; DOES 1-10, inclusive, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the application by Vincent Procopio, individually and as Personal Representative of the Estate of Robert Procopio, Jr., to proceed in forma pauperis [DE-1], for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and on Plaintiffs motion for court to approve licensed counsel pro hac vice based outside of North Carolina along with associated supportive medical expert witness, [DE-14]. Plaintiff has demonstrated, appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, for the reasons that follow, it is recommended that the case be allowed to proceed against Super 8 Worldwide, Inc., the Raleigh Police Department, and Does 1-10 for wrongful death, civil conspiracy, violation of 4th Amendment rights, and intentional infliction of emotional distress and that the remainder of the claims and defendants be dismissed.
Additionally, it is ordered that Plaintiffs motion to approve pro hac vice counsel with associated supportive medical expert witness is denied.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F. 3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed Med Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md House o/Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
A. Background
In the proposed complaint [DE-1-1], Plaintiff alleges as follows: the action is brought by Vincent Procopio, individually and on behalf of the estate of his brother, Robert Procopio, Jr. ("Procopio"). Compl. [DE-1-1] at 1 ¶ 1. On March 17, 2018, Procopio was a guest at the Super 8 Motel in Raleigh, North Carolina, a hotel which he frequented. Id. at 1 ¶ 2, 9. Procopio was due to check out of the hotel at 11:00 a.m. that day, but overslept and did not answer a phone call to the room from the front desk. Id. The hotel front desk called the Raleigh Police Department to forcibly evict Procopio from the room. Id. At 11:45 a.m., two Raleigh Police Department officers arrived and forcibly entered the hotel room, demanding that Procopio leave the room, and forced him to leave his personal items behind. Id. at 1 ¶ 3. Procopio went back to the front desk and requested re-entry into the room to gather his belongs and was given a room key to do so. Id. at 1 ¶ 4. Before getting to the room, Procopio was intercepted by the officers and a confrontation ensued. Id. While the police officers claimed that Procopio committed suicide and they discovered him bleeding and unconscious in the room, this account differs from the hotel's video surveillance which showed the officers following Procopio into the hotel room. Id. at 1 ¶ 5. Raleigh Police Department resisted Plaintiffs attempts to retrieve the full police report, 911 call recordings, and body camera footage. Id. at 1 ¶¶ 6, 7.
Plaintiff asserts claims against defendants Super 8 Worldwide, Inc., WakeMed Raleigh Campus, Jeffrey Abrams, M.D., Rodney McCaskill, M.D., Andrey Belayev, M.D., Carolina Donor Services, Inc., Raleigh Police Department, and Does 1-10 inclusive for: (1) wrongful death; (2) survival action; (3) civil conspiracy; (4) obstruction of justice; (5) violations of 4th Amendment rights; (6) violations of 42 U.S.C. 1985(3); (7) violations of EMTALA; (8) medical malpractice; (9) medical battery; (10) negligent homicide; (11) manslaughter; (12) organ procurement fraud; (13) intentional infliction of emotional distress; and (14) challenge to state statute. Id. at 8.
The court on initial review sought to determine whether Plaintiff, proceeding pro se, could properly represent his brother's estate in this matter and ordered Plaintiff to provide documentation substantiating his appointment as representative of his brother's estate and to indicate whether the estate has other beneficiaries or creditors. [DE-5]. In response to the court's order, Plaintiff provided a copy of the Restricted Letters of Administration for Wrongful Death Action for Robert Anthony Procopio, Jr., issued to Plaintiff by the Wake County Clerk of Superior Court on January 7, 2021, appointing Plaintiff as administrator for the purpose of pursuing a wrongful death action on behalf of Procopio's estate. [DE-10-1]. Plaintiff also asserted that, aside from Plaintiff, the decedent's only heirs are two other surviving siblings who declined to participate in the administration of the estate or this matter and that the estate has no known creditors other than WakeMed, where the decedent died. Id. The court determined that for frivolity review purposes Plaintiff had made a sufficient preliminary showing of his right to proceed on behalf of Procopio's estate subject to reconsideration should the issue be raised in a motion to dismiss. [DE-11].
B. Legal Analysis
As an initial matter, Plaintiffs motion asking the court to approve licensed counsel pro hac vice based outside of North Carolina along with associated supportive medical expert witness, [DE-14], is denied. Plaintiff states he is still searching for counsel to represent him in this case and asks the court to prospectively approve out-of-district counsel he may retain and any supportive medical expert witness. Id. The court's Local Civil Rule 83.1(e) governs appearances by attorneys not admitted in the district, in this court known as a "special appearance," not pro hac vice. If Plaintiff retains counsel not admitted in this district to represent him in this matter, said counsel can seek to appear in conformity with the court's Local Rules. Likewise, the court cannot pre-approve an undisclosed expert witness. Frivolity review has been pending for approximately fourteen months to allow Plaintiff time to be appointed to represent his brother's estate and to attempt to retain counsel, Plaintiff was warned in the court's March 24, 2021 order that he should not expect further extensions, and any further delay may prejudice both Plaintiffs search for the truth and Defendants' ability to defend the case due to the passage of time since the events at issue are alleged to have occurred in March 2018. Accordingly, the motion is denied, and the court will proceed to frivolity review.
1. Claims Asserted Against Individual Defendants
Defendants Jeffrey Abrams, M.D., Rodney McCaskill, M.D., and Andrey Belayev, M.D., are not mentioned anywhere in the body of Plaintiffs complaint, or anywhere on the IFP application, civil cover sheet, notice of self-representation, or financial disclosure form. [DE-1, -1-1, -1-2, 2, 3]. Their names appear as defendants in the caption of Plaintiffs complaint, but Plaintiff has not explained any nexus between these defendants and the facts alleged in the complaint, and as a result, no viable claim against these defendants has been alleged. Accordingly, it is recommended that all claims against Jeffrey Abrams, M.D., Rodney McCaskill, M.D., and Andrey Belayev, M.D., be dismissed without prejudice.
2. Claims Arising Pursuant to Criminal Law
Certain claims pled in plaintiffs complaint, specifically, negligent homicide, manslaughter, and obstruction of justice, arise pursuant to criminal law. These criminal laws do not create a private right of action. On this basis alone, all three claims are subject to dismissal. Smith v. Shaw, No. CIV.A. 5:09-01001,2012 WL 1832340, at *1 (S.D.W. Va. Apr. 25 2012) ("The violation of a federal criminal statute does not provide for a private cause of action."), rep. and recomm. adopted, 2012 WL 1831864 (May 18, 2012); Plotzker v. Lamberth, No. CIV. 3:08-CV-00027, 2008 WL 4706255, at *7 (W.D. Va. Oct. 22, 2008) ("There is no private right of action for obstruction of justice . . . "). Accordingly, it is recommended that Plaintiffs claims for negligent homicide, manslaughter, and obstruction of justice be dismissed with prejudice.
3. Claims Against WakeMed Raleigh Campus and Carolina Donor Services
Plaintiffs complaint generally contains allegations of medical malpractice and medical battery, as well as allegations of a conspiracy by unnamed individuals or entities to withhold lifesaving emergency protocols for patients without insurance with the intention of harvesting their organs. Compl. [DE-1-1] at 3-4. Plaintiff contends that the aforementioned practice violates the Emergency Medical Treatment and Active Labor Act. Relatedly, Plaintiff challenges the constitutionality of the North Carolina statute relating to determination of death by a physician, N.C. Gen. Stat. § 90-323 ("The determination that a person is dead shall be made by a physician licensed to practice medicine applying ordinary and accepted standards of medical practice. Brain death, defined as irreversible cessation of total brain function, may be used as a sole basis for the determination that a person has died, particularly when brain death occurs in the presence of artificially maintained respiratory and circulatory functions. This specific recognition of brain death as a criterion of death of the person shall not preclude the use of other medically recognized criteria for determining whether and when a person has died."). Presumably, Plaintiffs claims arising pursuant to the Sarbanes-Oxley Act are asserted against these defendants as well, though the complaint does not explicitly so allege.
Even if these claims were viable claims, there is no factual support at all underpinning them in the complaint. Plaintiffs complaint does not allege any facts particular to any medical care received by Procopio or any connection between any injury sustained by him and any acts committed by WakeMed Raleigh Campus or Carolina Donor Services. As a result, the court is unable to discern the factual basis of the purported claims or if the elements of those claims can be satisfied by Plaintiff. Accordingly, it is recommended that Plaintiffs claims against WakeMed Raleigh Campus and Carolina Donor Services for medical malpractice, medical battery, organ procurement fraud, violations of the Emergency Medical Treatment and Active Labor Act, challenging the constitutionality of N.C. Gen. Stat. § 90-323, and alleging violations of the Sarbanes-Oxley Act be dismissed without prejudice.
4. Claim Arising Pursuant to 42 U.S.C. § 1985(3)
Section 1985(3) prohibits "two or more persons" from conspiring "for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws" 42 U.S.C. § 1985(3). To establish a claim pursuant to 42 U.S.C. § 1985(3), a showing of discriminatory treatment is required. See Benzing v. North Carolina, No. 3:17-CV-619-KDB-DCK, 2020 WL 3439558, at *4 (W.D.N.C. June 23, 2020) ("In order to prove a conspiracy in violation of 42 U.S.C. § 1985(3), a plaintiff must show, among other things, that 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action.'" (quoting Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68 (1993)); Horowitz v. Sherman, No. CV DKC 19-2459, 2020 WL 2319113, at *5-6 (D. Md. May 11,2020) ("To state a claim under 42 U.S.C. § 1985(3), a plaintiff must prove: (1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy." (quoting A Soc'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011))).
Here, Plaintiffs complaint is devoid of any allegation concerning the existence of any specific class-based, invidiously discriminatory animus engaged in by any defendant. Accordingly, it is recommended that Plaintiffs claims arising pursuant to 42 U.S.C. § 1985(3) be dismissed without prejudice.
5. Remaining Claims
Although not artfully pled, giving Plaintiffs complaint the liberal construction to which it is entitled, the court finds that Plaintiff has pled the elements of his remaining claims sufficiently to survive frivolity review. See generally Estate of Robert Ethan Saylor v. Regal Cinemas, Inc., No. CV WMN-13-3089, 2016 WL 4721254, at *6 (D. Md. Sept. 9, 2016) (plaintiffs stated 42 U.S.C. § 1983 claim against officers where they alleged the officers "deprived [the decedent] of his Fourth Amendment right to be free from the use of excessive and unreasonable force"), aff'd, 698 F. App'x 72 (4th Cir. 2017); Houck v. Howell, No. 514-CV-00187-RLV-DCK, 2016 WL 1599806, at *6 (W.D.N.C Apr. 21,2016) ("To bring an action under the Wrongful Death Statute, 'a plaintiff must allege a wrongful act, causation, and damages.'" (quoting Bailey v. Gift, 518 S.E.2d 794, 795, 135 N.C. App. 119, 120 !(1999)); Fletcher v. Corcoran, No. CV PWG-18-3567, 2020 WL 1503702, at *13 (D. Md. Mar. 30, 2020) ("To the extent [plaintiff] claims a civil conspiracy under § 1983, he must present evidence that the defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in deprivation of a constitutional right."); Medl NCServs., L.L.C. v. Medl Plus, L.L.C., No. 19 CVS 1983, 2020 WL 930651, at *8 (N.C. Super. Feb. 26, 2020) ("To plead a civil conspiracy, a plaintiff must allege: '(1) an agreement between two or more individuals; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or more of the conspirators; and (4) pursuant to a common scheme.'" (quoting Piraino Bros., LLC v. Atlantic Fin. Grp., Inc., 211 N.C.App. 343, 350,712 S.E.2d 328, 333 (2011))); Jones v. Parry, No. 5:19-CV-00078-FDW, 2019 WL 6999705, at *3 (W.D.N.C. Dec. 19, 2019) ("The elements of the tort of intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant, (2) which is intended to cause and does cause (3) severe and emotional distress to another." (citing Turner v. Thomas, 369 N.C. 419, 427, 794 S.E.2d 439, 446 (2016))); Parker v. Grand Hyatt Hotel, 124 F.Supp. 2d 79, 88 (D.D.C. 2000) ("Liability for conspiracy under section 1983, though, may be imposed on a private individual or party who acts in concert with the party or parties who are acting under color of law. The Supreme Court held in Dennis that liability for conspiracy may be imposed on a private individual if the plaintiff establishes that the private individual was 'a willful participant in joint action with the State or its agents.'" (quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980))).
Accordingly, for purposes of the instant analysis, it is recommended that Plaintiffs claims against Super 8 Worldwide, Inc., the Raleigh Police Department, and Does 1-10 for wrongful death, civil conspiracy, violation of 4th Amendment rights, and intentional infliction of emotional distress be permitted to proceed. Plaintiff must file, within 21 days of the date of this order, completed summonses for these remaining Defendants to allow for service of the complaint.
III. CONCLUSION
For the reasons stated herein, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that all claims against defendants Jeffrey Abrams, M.D., Rodney McCaskill, M.D., Andrey Belayev, M.D, WakeMed Raleigh Campus, and Carolina Donor Services, Inc. for medical malpractice, medical battery, organ procurement fraud, violations of the Emergency Medical Treatment and Active Labor Act, challenging the constitutionality of N.C. Gen. Stat. § 90-323, and alleging violations of the Sarbanes-Oxley Act be dismissed without prejudice; that Plaintiffs claim arising pursuant to 42 U.S.C. § 1985(3) be dismissed without prejudice; and Plaintiffs claims alleging negligent homicide, manslaughter, and obstruction of justice be dismissed with prejudice.
It is further RECOMMENDED that the Clerk be directed to file Plaintiffs complaint and the case proceed on the remaining claims against Super 8 Worldwide, Inc., Raleigh Police Department, and Does 1-10 inclusive, and Plaintiff must file, within 21 days of the date of this order, completed summonses for these remaining Defendants.
IT IS DIRECTED that the Clerk serve a copy of this Oder and Memorandum and Recommendation on Plaintiff. You shall have until June 4, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).