IN THE SUPERIOR COURT OF NORTH CAROLINA

STATE OF NORTH CAROLINA in Orange County

v.

NAPIER SANDFORD FULLER, No. 17-CRS-050340

Defendant-Appellant, pro se.

MOTION TO REQUEST DISQUALIFICATION

OF RICHARD R. BADDOUR PER NC CODE OF JUDICIAL CONDUCT

TO THE HONORABLE SUPERIOR COURT:

1. The self-represented Defendant-Appellant, Napier Sandford Fuller,

(hereafter referred to as “Mr. Fuller”) respectfully petitions this Superior Court,

pursuant to North Carolina Code of Judicial Conduct (Canon 3, § C), for the

voluntary disqualification of Superior Court Judge Richard R. Baddour from this

case. The case is in the post-conviction phase, and not yet formally docketed

in the North Carolina Appeals Court. Thus, it is still in this court’s jurisdiction

and open to motions for appropriate relief. In support of this motion, Mr. Fuller

shows the following:

2. North Carolina’s Bar’s Rules of Professional Conduct, Rule #8.2, observes

that “unrestrained and intemperate statements [about judicial misconduct] tend

to lessen public confidence in our legal system. Criticisms motivated by reasons

other than a desire to improve the legal system are not justified.”

Legal Reasoning to Request Disqualification of Mr. Baddour

3. Mr. Fuller brings this motion within the following framework: Mr. Fuller

aims to improve our state’s legal system as it relates to the state’s compliance

with federal disability laws.

4. 28 U.S.C. § 455(a) states, “Any justice [or] judge ... shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned.”

5. North Carolina Code of Judicial Conduct1 (Canon 3, § C) states:
“On motion of any party, a judge should disqualify himself/herself in a
proceeding in which the judge’s impartiality may reasonably be questioned,
including, but not limited to, instances where:
(a) The judge has a personal bias or prejudice concerning a party;
(c) The judge knows that he/she, individually ... has a financial interest in the
subject matter in controversy;
(d) The judge ... (i) Is a party to the proceeding or (iv) Is to the judge’s
knowledge likely to be a [party] in the proceeding.”

6. It is in Canon 3, § C(d)(iv) that Mr. Fuller requests disqualification in

addition the common sense language found in 28 U.S.C. § 455(a).

7. To wit, per Canon 3, § C(c), Mr. Baddour has a financial interest in this

subject matter2, as he is presently a defendant in the subject matter of the

controversy3.

8. Mr. Baddour is employed by the State of North Carolina judiciary (the

N.C.A.O.C.), a unit of the State of North Carolina, in the role of a Superior

Court Judge.
1 Amended by Order of the Supreme Court of North Carolina on November 6, 2015.
2 See discussion of the Civil Rights Attorney’s Fees Awards Act of 1976 as applied in Pulliam v. Allen.
3 See derivative cases: 7:18-cv-00059-FL (EDNC) and USCA4 19-1110.

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9. The State of North Carolina receives more than $15 billion in federal

funds each year, and it is therefore obligated to create administrative processes

to ensure compliance with federal disability laws in all of its governmental units.

10. Mr. Fuller has asserted that state judges, including Mr. Baddour, have an

administrative function in processing, evaluating, and responding to Mr. Fuller’s

written requests under Title II of the ADA, which is administrative in nature.

11. A USDOJ amicus curiae brief prepared in 1993 in Santiago v. Garcia, 98-

1993 supports this theory. In this dispute, a deaf pro se litigant requested ADA

accommodations from a state judge in order to more effectively participate

in his own trial. Here are some quotes from Santiago that are germane to this

present motion:
Defendants [state judges] have moved to dismiss on several grounds. The
United States as amicus curiae urges the Court to deny the motions as to
plaintiff’s ADA claim, because contrary to the basis on which the Defendants
seek such dismissal:

(i) Plaintiff has pleaded a prima facie case under title II of the ADA.

(ii) Congress has specifically abrogated the States’ eleventh amendment

immunity for suits brought pursuant to the ADA.

(iii) Under title II of the ADA the Defendants can be sued in their official
capacities.

(iv) Judges do not enjoy absolute immunity for acts that are administrative rather
than judicial in nature.

Based on the language of the ADA, Defendants’ [immunity] argument is

without merit. In the ADA, Congress expressly abrogated the States’ eleventh
amendment immunity.

Given the abrogation of state immunity by the ADA, claims can be brought
against a state judge in his/her individual or official capacity under the ADA but
for the doctrine of judicial immunity.

In its enforcement of the ADA, the United States has seen that [state] courts
establish system-wide administrative policies and leave the task of processing
individual requests to system-wide administrators rather than individual judges.
This court should not dismiss [state judges] from the case before plaintiff has an
opportunity to prove that the Judge acted administratively, not judicially, when

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 refusing plaintiff’s [ADA request].

For the foregoing reasons, the United States respectfully requests that this court
deny Defendants’ motions to dismiss.

The salient point from Santiago is that the process of receiving, evaluating,

and complying with ADA requests for access to government services is

administrative: state courts of justice are no exception.

12. Disputes of ADA in terms of access to state courts are resolved in federal

courts. Specifically, an opinion by Justice John Paul Stevens in Tennessee v.

Lane, 541 U.S. 509 (2004) is worth exploring. Justice Stevens’ lengthy analysis

found that immunity defenses do not apply when a qualified disabled party is

prevented from having equal access to the state court system itself.

13. In Lane, the U.S. Supreme Court recounted congressional studies showing

systemic violations of the fundamental constitutional rights of the disabled by

state courts that have persisted long after the ADA was passed. Here are some

quotes from Lane that are germane to Mr. Fuller’s complaint:

The unequal treatment of disabled persons in the administration of judicial
services has a long history, and has persisted despite several legislative efforts
to remedy the problem of disability discrimination. Faced with considerable
evidence of the shortcomings of previous legislative responses, Congress was
justified in concluding that this “difficult and intractable probable[m]” warranted
“added prophylactic measures in response.” Hibbs, 538 U. S., at 737 (internal
quotation marks omitted).

Recognizing that failure to accommodate persons with disabilities will often

have the same practical effect as outright exclusion, Congress required
the States to take reasonable measures ... It requires only “reasonable
modifications” that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible
for the service.

This duty to accommodate is perfectly consistent with the well-established due

process principle that, “within the limits of practicability, a State must afford to
all individuals a meaningful opportunity to be heard” in its courts. Boddie, 401 U.
S., at 379.

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 Mr. Baddour Involved in a Federal Legal Controversy
14. On April 4, 2018, Mr. Fuller filed an 18-page federal complaint against six
judicial officials employed by the State of North Carolina:
Defendant Rebecca W. Holt superior court judge
Defendant Richard A. Baddour superior court judge
Defendant James C. Stanford clerk of court
Defendant James T. Bryan, III district court judge
Defendant Samantha Hyatt Cabe district court judge
Defendant Catherine C. Stevens emergency district court judge

15. Mr. Fuller made the following claims in his initial complaint:

“Defendants past and current discrimination against Plaintiff violates Title II of

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, and the Federal
regulations promulgated pursuant to the Act at 28 C.F.R. Part 35 et seq.
“Plaintiff avers retaliation and vindictiveness in conduct of Defendants. Plaintiff has
hours of audio recordings of his court appearances and many emails as evidence
for the court to consider.”

16. On August 9, 2018, Mr. Fuller, a self-represented defendant, was convicted

of a single misdemeanor, Cyberstalking § 14-196.3(b)(2), after a chaotic jury trial in

Orange County, NC, presided over by Superior Court Judge George Bryan Collins,

Jr., who later set a $50,000 secured bond in abstenia in the $1,000 fine on appeal.
17. According to the NIH4, Fuller’s mental disorder manifests as oscillating

patterns between being too withdrawn and being too intrusive. The key concepts

are as follows:

“Symptoms of the withdrawn phase include: problems sustaining attention in

conversations, not following instructions, being distracted by unrelated thoughts.”

“Symptoms of the intrusive phase include: talking nonstop, interrupting or

intruding in conversations, constant moving about, and aggressive behaviors that
have high potential for harm.”

4 https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorder-adhd/index.shtml

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 “These problems are not due to defiance or lack of comprehension.”

18. On November 20, 2018, Mr. Fuller’s federal lawsuit against Orange County

judicial officials was dismissed with prejudice, based upon two technicalities

related to immunity. The legal question was one of relief, as the Defendants’

claimed two forms of immunity: judicial and sovereign. However, the undisputed

facts, as summarized by Judge Louise Flanigan, make it quite clear that Mr. Fuller’s

federal rights had indeed been violated by the State of North Carolina in the

prosecution of case 17-CRS-050340.

19. Title II of the ADA, provides that, “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” See 42 U.S.C. § 12132.

20. Quoting from a recent USDOJ amicus brief, the United States argued that

“to state a claim under title II of the ADA, a plaintiff must prove three elements:

(i) that he is a qualified individual with a disability, (ii) that he was discriminated

against by being excluded from or denied the benefits of a public entity’s

services, and (iii) that he was discriminated against because of his disability.

21. Mr. Fuller has sued Mr. Baddour in federal court, alleging ADA retaliation,

which is technically a separate claim that survives even the underlying claims.

22. An ADA Title II retaliation claim has three elements: (i) Plaintiff engages in

a protected activity such as suing a state judge for ADA violations, (ii) materially

adverse actions are taken against Plaintiff by other state judges with knowledge

of the lawsuit, and (3) a requisite level of causal connection exists between the

protected activity and the materially adverse action.

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23. To be clear, Mr. Fuller does not seek to gain tactical advantage in this

Court via Mr. Baddour’s disqualification. Rather Mr. Fuller seeks due process

without the specter of conflicts-of-interest in future court appearances.

24. State judges can be sued in federal court when violations of federally

protected civil rights are alleged under § 1983. In such disputes, reasonable

attorney’s fees may be awarded to the Plaintiff. See Pulliam v. Allen, 466 U.S.

522 (1984).

Relief Sought from Mr. Baddour (or Court Hearing)

25. Having shown good cause that Mr. Baddour should voluntarily recuse

himself from adjudicating this case in post-conviction motions, he is hereby

requested to promptly file written notice to that effect in this docket, thereby

terminating this motion from being set for a hearing. Otherwise, Petioner

requests that the Clerk of Superior Court schedule this motion for a special

hearing with a neutral judge at the first available opportunity agreeable to

all parties, as time is of the essence. The State is hereby requested to enter

a response to this pleading: either “no objection” or a detailed statement of

objections.

26. This voluntary disqualification, if issued, would indicate a judgment

or conclusion neither about Mr. Baddour’s actions nor Mr. Fuller’s pending

lawsuit(s). Rather, Mr. Fuller’s focus is upon the spirit of the federal law, 28

U.S.C. § 455, “Any justice [or] judge ... shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned.“

27. Finally, as to the standard of review in evaluating this pleading, courts

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have traditionally afforded some leeway to compensate for self-represented

parties lacking legal training: pro se pleadings are held to “an especially liberal

standard.” See Haines v. Kerner, 404 U.S. 520 (1971) and Melvin Finance, Inc.

v. Artis, 157 N.C. App. 716, 2003 WL 21153426 (N.C. App.) This principal is

especially prescient when evaluating the pleading of a pro se litigant with a

mental disability that impairs behavioral and cognitive function5.

SWORN DECLARATION: I declare under penalty of perjury that the foregoing facts

stated in which I have personal knowledge, are true and correct to the best of my ability.

This being the 24th day of April 2019; a 12-page document submitted by US mail from

my home/office in Wilmington, North Carolina. I received no assistance in editing this

pleading or preparing these legal arguments.

blank

5 Both the United States District Court (E.D.N.C.) and the United States Court of Appeals for the 4th
Circuit have issued orders in 2019 that Mr. Fuller is to receive federal disability accommodations in terms of
court interactions regarding his mental disability in the interest of justice.

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 Attached, as a good showing of related federal litigation, are three 1-page Exhibits:
A: United States District Court
B: United States Court of Appeals (4th Circuit)
C: United States Supreme Court

NAPIER SANDFORD FULLER

Defendant–Appellant (self-represented)
2201 Lynnwood Drive
Wilmington NC 28403-8026
Post Office Box 7901
Wilmington NC 28406-7901
910.262.2359
napier@alum.mit.edu

CERTIFICATE OF SERVICE
I, the petitioner, NAPIER SANDFORD FULLER, pro se, certify that on the date above, I served a copy of this
pleading upon the opposing party by depositing a copy of same in the United States mail with prepaid, first-class
postage and/or via email. I have been instructed that the following individuals might be the State’s agent, but no order of
representation has been filed in the docket of 17-CRS-050340 and thus such representation is speculative.

Both attorneys named below will also be sued in the forth coming federal litigation for the very same reasons as
described in this motion of disqualification: they participated actively in violations of federal law by ignoring, denying,
discriminating, and or retaliating against Mr. Fuller’s efforts to obtain federally protected disability accommodations as it
relates to equal access to the State Courts of Justice. USDOJ guidelines may it clear that such federal protections, invoked
by defendants, apply equally to prosecutors as agents of the State and immunity has been specifically abrogated by the
US Congress as a result of the State accepting federal funds.

Kimberly Overton Spahos, Bar #28006 Mary C. Babb, Bar #25731

Special Prosecutor NCDOJ Criminal Appeals
PO Box 3159 114 W. Edenton St.,
Cary, NC 27519 Raleigh, NC 27603
kimberly.n.overton@nccourts.org mcbabb@ncdoj.gov
919-270-9403 919-716-6573

The petitioner, NAPIER SANDFORD FULLER, pro se, aver that I have been ordered by this Orange County Superior
Court to (1) never contact the Orange County prosecutors, and to (2) never contact “any judge” in this Orange County
Superior Court by threat of imprisonment of 30 days and/or a loss of a secured bond of $50,000.

I AVER THESE EXCESSIVE POST-CONVICTION BOND CONDITIONS, IN THE APPEAL OF A $1,000 FINE, FURTHER
PREVENT COMMUNICATION AND COMPLIANCE REGARDING MY ADA DISABILITY REQUESTS, ARE THINLY VEILED
ACTS OF RETALIATION FOR FILLING AN ADA LAWSUIT, AND HAVE SUBSEQUENTLY DEPRIVED ME OF FEDERALLY
PROTECTED CONSTITUTIONAL RIGHTS. SUCH ACTS, OMISSIONS, AND FAILURE TO TAKE CORRECTIVE ACTIONS
ARE ACTIONABLE BY FUTURE TORT LITIGATION VIA 42 U.S.C. § 1983-1988. A US DISTRICT COURT RECENTLY
CONCLUDED (SEE PAGE 3-4, DE #70, CASE 7:18-CV-00059-FL) THAT MR. FULLER WAS UNLAWFULLY DENIED
FEDERALLY MANDATED DISABILITY ACCOMMODATIONS IN HIS PRO SE APPEARANCES IN ORANGE COUNTY.

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 Exh
ibi
tA

Case 7:18-cv-00059-FL Document 1 Filed 04/04/18 Page 1 of 18

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 Exh
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tB
USCA4 Appeal: 19-1110 22
Doc: 19 Filed: 04/17/2019
03/19/2019 Pg: 1 of 30
17

No. 19-1110

in the United States Court of Appeals

for the Fourth Circuit

NAPIER SANDFORD FULLER,

Plaintiff-Appellant,

v.

REBECCA W. HOLT, in her official capacity as an employee of the North

Carolina Administrative Office of the Courts; RICHARD A. BADDOUR, in his
official capacity as an employee of the North Carolina Administrative Office
of the Courts; JAMES C. STANFORD, in his official capacity as an employee
of the North Carolina Administrative Office of the Courts; JAMES T. BRYAN,
III, in his official capacity as an employee of the North Carolina Administrative
Office of the Courts; SAMANTHA HYATT CABE, in her official capacity
as an employee of the North Carolina Administrative Office of the Courts;
CATHERINE C. STEVENS, in her official capacity as an employee of the North
Carolina Administrative Office of the Courts,

Defendants-Appellees.

on Appeal from the United States District Court

for the Eastern District of North Carolina

CONSOLIDATED INFORMAL
INFORMAL BRIEF BRIEF
FOR
INFORMAL FOR
THE THE PLAINTIFF-APPELLANT
PLAINTIFF-APPELLANT
APPELLANT BRIEF

N. S. FULLER, pro se
Plaintiff-Appellant
P.O. Box 7091
Wilmington NC 28406-7091
910.262.2359
napier@alum.mit.edu

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 Exh
ibi
tC

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