United States District Court, E.D. Virginia, Richmond Division
JOHN L. HANCOX, JR., Plaintiff,
ELLEN MARIE HESS, Commissioner, and DAVID AISTROP, Defendants.
A. Gibney, Jr. United States District Judge.
se plaintiff brings this suit against Ellen Hess, in her
official capacity as the Commissioner of the Virginia
Employment Commission (the "VEC"), and David
Aistrop. The plaintiff says that the defendants wrongfully
found him ineligible for unemployment benefits and then
wrongfully garnished his tax returns to pay back unemployment
funds that the VEC had overpaid him. Aistrop moved to dismiss
this case, noting that the body of the complaint never even
mentions him. Hess moved to dismiss because the plaintiff
fails to state a cognizable claim. The plaintiff failed to
respond to the motions to dismiss, and the Court grants the
motions because Hancox fails to state a claim in his
former employer, NIBCO Inc. ("NIBCO") terminated
him on January 28, 2015. He received unemployment payments
for three weeks, but NIBCO then disputed his right to
unemployment. The VEC determined that Hancox did not qualify
for unemployment and cancelled the benefits. The final date
to appeal that decision passed on October 21, 2015, and
Hancox did not appeal. On February 4, 2016, the VEC
determined that it had overpaid Hancox for $1, 134 worth of
unemployment benefits. The VEC notified Hancox that he could
appeal the decision in Virginia circuit court by March 2016.
Hancox never served a petition for judicial review. For the
past two years, the Virginia Department of Taxation has
intercepted Hancox's tax return to pay his debt owed to
the VEC. Hancox has filed multiple appeals through the VEC
about the tax intercepts, but the state has affirmed the
intercept in each instance.
says that federal judges may review the decisions of local
agencies where a plaintiff raises an issue of constitutional
law. Giving Hancox the broadest latitude in interpreting his
complaint, he says that the VEC did not give him due process
(1) when it determined he did not qualify for unemployment
and (2) when the VEC intercepted his tax refunds. The
rambling complaint also discusses Terry stops,
character evidence, exculpatory Brady evidence,
defamation, and NIBCO's OSHA requirements. The body of
the complaint does not mention Aistrop
filing the complaint, the defendant has also filed an array
of improper motions including two motions for summary
judgment, an incomprehensible motion entitled "Rule 4,
" a "Request Access to Update The Side Bar, "
and a "Motion To the Court: Pandora's Box of
complaint must contain "a short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). Where, as here, a
defendant brings a motion to dismiss for failure to state a
claim, the Court must analyze the plaintiffs complaint to
determine whether it states sufficient facts to state a claim
to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). "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. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 565 (2007)). When considering the complaint
itself, courts must accept all allegations as true and must
draw all reasonable inferences in favor of the plaintiff.
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City
of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). In
cases where the plaintiff appears pro se, courts do not
expect the plaintiff to frame legal issues with the clarity
expected from lawyers. Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985). Courts do not, however,
need to discern the unexpressed intent of the plaintiff or
conjure up issues on the plaintiffs behalf. See Laber v.
Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006);
Beaudett, 775 F.2d at 1276.
Court dismisses the frivolous complaint because it fails to
state any cognizable claim-federal or otherwise.
the complaint never mentions defendant David Aistrop, aside
from naming him as a defendant. The Court grants
Aistrop's motion to dismiss because Hancox does not
attempt to plead a cause of action against him and because
Hancox did not respond to the motion to dismiss.
Hancox takes issue with Hess and the VEC for (1) the
VEC's 2015 process in determining that he did not qualify
for unemployment and (2) the process of intercepting his tax
refund. Giving the pro se litigant the broadest possible
leeway and interpreting these as due process claims, they
both fail based on the documents Hancox attaches to his
complaint. First, the VEC held a hearing to determine that
Hancox did not qualify for unemployment, sent him a letter
notifying him of his right to appeal, and he did not appeal.
Second, Hess sent a letter to Hancox letting him know that
the VEC held a hearing on his tax-intercept appeal. Hess
notes that Hancox did not participate. In his complaint,
Hancox does not dispute these notices and appeals, but
instead complains that the VEC only communicates with him
over the phone. Hancox cannot state a claim based on these
facts because the process outlined in the documents attached
to Hancox's complaint complies fully with the
requirements of due process. See Brewer v.
Canlrell, 622 F.Supp. 1320, 1326 (W.D. Va. 1985),
affd, 796 F.2d 472 (4th Cir. 1986). The plaintiff
may bring any available appeals in state court, but he fails
to stale a federal claim and has failed to respond to the
defendants* motions to dismiss.
Court dismisses any federal claims with prejudice and any
state claims without prejudice.
Clerk send a copy of this Memorandum Opinion to the pro se