Opinion
4:23-CV-103-FL
07-26-2023
VENUS D. ADDISON-POTTS, Plaintiff, v. ECU HEALTH MEDICAL CENTER, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR., UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiffs application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1, 2], Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
After allowing an application to proceed in forma pauperis, the court must still review the allegations of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), and 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 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 attorneys. 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
Plaintiff was employed by Defendant from September 8, 2020 through May 5, 2022, when her employment was terminated. Plaintiff alleges she was discriminated against by her employer due to her mental health disability in violation of the Americans with Disabilities Act of 1990, 42 2 U.S.C. §§ 12112 to 12117, (“ADA”). Plaintiff states the discriminatory acts, including treating her mistakes severely, treating her differently because of her disability, and not granting her requested reasonable accommodation, occurred from October 24, 2021 through her date of discharge. She filed a charge with the Equal Employment Opportunity Commission (“EEOC”) in April 2022, and she received the Notice of Right to Sue letter from the EEOC on March 22, 2023. Plaintiff filed this action on June 21, 2022, seeking recovery of back pay. Compl. [DE-1] at 1-5.
Before a plaintiff may file a suit under the ADA, she is required to exhaust her administrative remedies by filing a charge of discrimination with the EEOC. Sydnor v. Fairfax Cnty., Va, 681 F.3d 591, 593 (4th Cir. 2012) (citing 42 U.S.C. § 2000e-5(b), (f)(1)). “Within 90 days of receipt of a right to sue letter from the EEOC, the aggrieved party must bring a civil action based upon ‘the alleged unlawful employment practice,'” 42 U.S.C. § 2000e-5(f)(1), and a claim is time barred if it is not filed within the ninety days. Wilson v. Daly Seven, Inc., No. 5:15-CV-610-FL, 2018 WL 1800853, at *3 (E.D. N.C. Apr. 16, 2018), aff'd, 740 Fed.Appx. 286 (4th Cir. 2018). In Fort Bend County v. Davis, the Supreme Court held that while the administrative exhaustion requirement is not a jurisdictional issue and thus may be waived, it is mandatory and can serve as grounds for dismissal when timely raised by a defendant. 139 S.Ct. 1843, 1850-52 (2019). Courts in the Fourth Circuit have applied Davis to the ADEA. See, e.g., Yang v. Lai, No. 1:22-CV-5, 2022 WL 2440834, at *3 (M.D. N.C. July 5, 2022) (collecting cases). However, the court may consider affirmative defenses sua sponte when a litigant seeks to proceed in forma pauperis. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 953- 54 (4th Cir. 1995)).
Plaintiff alleges that she received the Notice of Right to Sue letter on March 22, 2023. Compl. [DE-1] at 4. Plaintiff filed her complaint in this court on Wednesday, June 21,2023, which which is ninety-one days after she received the notice. The Fourth Circuit has held that a filing made one day outside the ninety-day period is time barred and may result in dismissal absent reasonable grounds for equitable tolling. See Harvey v. New Bern Police Dep't, 813 F.2d 652, 653-54 (4th Cir. 1987). Plaintiff did not file a civil action within ninety days from the date she received notice of her right to sue and has provided no grounds for equitable tolling; thus, her ADA claim is time-barred. See Ndiaye v. Austin, No. 5:20-CV-00486-BO, 2021 WL 2096063, at *3 (E.D. N.C. Apr. 13, 2021) (finding complaint filed ninety-one days after receipt of right to sue letter was time barred), report and recommendation adopted, 2021 WL 2080198 (E.D. N.C. May 24, 2021). Accordingly, it is recommended that the complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until August 9, 2023 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 you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you 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).