Opinion
2:23-cv-05521-RMG-MGB
04-24-2024
Azeez Sayfa Al-Din Bey, Plaintiff, v. Circle K, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Azeez Sayfa Al-Din Bey (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action against Circle K (“Defendant”) alleging employment discrimination. (Dkt. No. 1.) Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned recommends that this action be summarily dismissed.
BACKGROUND
Plaintiff contends that Defendant Circle K did not hire him for a customer service position because of his national origin and religion. (Dkt. No. 1 at 5.) More specifically, the Complaint states that during his job interview, Plaintiff told the store manager that he “did not possess nor need a [Social Security number] to get a job” because he is “tax exempt” as an “aboriginal/indigenous” person. (Id. at 5-6.) According to Plaintiff, he then provided “corporate” with a “copy of [his] Free Sovereign Moorish Nationality Identification Card,” and an individual from the Human Resources Department apparently “agreed with the tax exemption.” (Id. at 6.) Nonetheless, Plaintiff states that he has “been denied a job [to] this day,” while Defendant has hired “at least 3 new employees” to fill the same position for which he applied. (Id.) Plaintiff contends that Defendant did not hire him because of his purported status as “a foreign national and a sovereign” and his practice of Islam. (Id. at 5.) Based on the above, the Complaint demands $1 million in damages (id. at 5) pursuant to the Zodiac Constitution; the United Nations Declaration on the Rights of Indigenous Peoples; 18 U.S.C. § 242; 42 U.S.C. § 1983; and § 7 Pub. Law 93-579 (id. at 3).
Upon reviewing these initial allegations, the undersigned issued an order notifying Plaintiff that his Complaint was subject to summary dismissal for failure to state a claim upon which relief may be granted. (Dkt. No. 7.) In light of Plaintiff's pro se status, the undersigned afforded him twenty-one days, plus three days for mail time, to submit an amended pleading that cured the deficiencies identified in his Complaint. (Id. at 4.) The undersigned emphasized that if Plaintiff did not follow these instructions within the time permitted by the order, his case would be summarily dismissed. (Id.) Plaintiff later filed a motion seeking an extension of time to amend his Complaint (Dkt. No. 10), which the undersigned promptly granted (Dkt. No. 11). Unfortunately, Plaintiff still never filed an amended pleading or otherwise responded to the undersigned's instructions, and the time to do so has expired. Accordingly, the instant action remains limited to the claims presented in the original Complaint as summarized above. (Dkt. No. 1.)
LEGAL STANDARD
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses, the court must dismiss any prisoner complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte “at any time” under § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” as required under Rule 8(a)(2) of the Federal Rules of Civil Procedure. To satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the court need not accept as true a complaint's legal conclusions). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is therefore charged with liberally construing a complaint filed by a Pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a)(2). See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule 8, Fed. R. Civ. P., for “all civil actions”). The Fourth Circuit has explained that “though Pro se litigants cannot, of course, be expected to frame legal issues with the clarity and precision ideally evident in the work of those trained in law, neither can district courts be required to conjure up and decide issues never fairly presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1276 (4th Cir. 1985).
DISCUSSION
Despite receiving ample time to comply with this Court's instructions, Plaintiff has failed to file an amended complaint that cures the deficiencies identified in his initial pleading. As a result, this action remains subject to summary dismissal for the reasons discussed below.
At the outset, the undersigned previously warned Plaintiff that none of the authorities cited in his Complaint provide a valid basis for the instant case. (Dkt. No. 7 at 2-3.) Turning first to the Zodiac Constitution (Dkt. No. 1 at 3), federal courts have routinely dismissed claims involving treaties, declarations, and/or resolutions predicated on the plaintiff's Moorish heritage as frivolous. See Nasi El for Collins v. South Carolina, No. 2:22-cv-506-BHH-MHC, 2022 WL 2835752, at *4 (D.S.C. June 17, 2022) (collecting cases), adopted sub nom. El v. South Carolina, 2022 WL 2835373 (D.S.C. July 20, 2022). Accordingly, any such claims are subject to summary dismissal.
With respect to the United Nations Declaration on the Rights of Indigenous Peoples, this declaration is not a legally binding instrument under international law and does not create a private right of action. See, e.g., Singletary v. Internal Revenue Serv. N. Carolina, No. 5:17-cv-231-FL, 2017 WL 7736168, at *2 (E.D. N.C. Sept. 19, 2017), adopted, 2018 WL 1006451 (E.D. N.C. Jan. 30, 2018); Johenkins v. New Jersey, No. 5:19-cv-17-FL, 2019 WL 4309037, at *2 (E.D. N.C. Aug. 19, 2019), adopted, 2019 WL 4309005 (E.D. N.C. Sept. 11, 2019); Bey v. Colon, No. 2:19-cv-941-BHH-BM, 2019 WL 3557920, at *3 (D.S.C. July 10, 2019), adopted, 2019 WL 3547086 (D.S.C. Aug. 5, 2019). Thus, any such claims are likewise subject to summary dismissal.
With respect to 18 U.S.C. § 242, this statute is part of the criminal code and “does not give rise to civil liability or authorize a private right of action.” See Bey, 2019 WL 3557920, at *3; see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (finding that a private citizen does not have a judicially cognizable interest in the prosecution or non-prosecution of another person); Diamond v. Charles, 476 U.S. 54, 64-65 (1986) (collecting cases). For that reason, any such claims must also be dismissed.
With respect to 42 U.S.C. § 1983, this statute “creates a private right of action to vindicate violations of rights, privileges, or immunities secured by the Constitution and laws of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, the plaintiff must show that (1) a right secured by the Constitution or laws of the United States was violated, and (2) the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Purely private conduct, “no matter how wrongful, injurious, fraudulent, or discriminatory,” generally does not qualify as state action. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). Because Defendant and its employees are not state actors, Plaintiff cannot raise a cognizable claim under § 1983 against the same.
Finally, the Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of personal information about individuals by agencies. See 5 U.S.C. § 552a. Section 7(b) requires that “[a]ny Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory authority such number is solicited, and what uses will be made of it.” Federal Privacy Act § 7(b), Pub. L. No. 93-579, 88 Stat. at 2194 (codified as amended at 5 U.S.C. § 552a (Note)). Because Defendant is a private corporation and not a government agency, Plaintiff cannot raise a cognizable claim under Section 7 of the Privacy Act.
Notwithstanding the above, the substance of Plaintiff's allegations indicates that he is likely attempting to raise a claim of employment discrimination under Title VII of the Civil Rights Act of 1964, which makes it unlawful for covered employers “to fail or refuse to hire . . . any individual . . . because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). As the undersigned previously noted, however, the Complaint does not allege facts sufficient to demonstrate that Plaintiff is entitled to relief under Title VII.(Dkt. No. 7 at 3.)
As a threshold matter, before filing a claim in federal court, a Title VII plaintiff must first exhaust administrative procedures as set forth in 42 U.S.C. § 2000e-5(b), which includes submitting a complaint to the Equal Employment Opportunity Committee. See Smalls v. Lawrence, No. 2:23-cv-885-DCN-KDW, 2023 WL 2465691, at *1 (D.S.C. Mar. 10, 2023). It is unclear whether Plaintiff exhausted such administrative remedies in this case.
While Plaintiff suggests that Defendant did not hire him because of his national origin as a “foreign national” and “sovereign” citizen (Dkt. No. 1 at 5), the real issue here appears to be Plaintiff's failure to provide the employer with a Social Security number. As noted above, Plaintiff essentially told the store manager during his interview that he did not need a Social Security number “to get a job” because he is exempt from federal tax regulations as an “aboriginal/indigenous” person. (Id.) Federal courts have consistently rejected this argument, finding that “[a]ll persons in the United States who receive earned income or remuneration or unearned income are required to file tax returns and, if the income is sufficient, must pay taxes.” El-Bey v. Rogalski, No. 8:14-cv-3784-GJH, 2015 WL 1393580, at *4 (D. Md. Mar. 24, 2015) (internal citation omitted); Blackstone v. I.R.S., No. 1:98-cv-2648-CCB, 1998 WL 796738, at *1 (D. Md. Sept. 30, 1998); see also Pleasant-Bey v. City of Baltimore, No. 8:16-cv-3879-DKC, 2016 WL 7491624, at *2 (D. Md. Dec. 30, 2016) (collecting cases), aff'd, 690 Fed.Appx. 115 (4th Cir. 2017). To that end, federal law requires employers to report to the Internal Revenue Service the amount of taxes withheld for each employee as identified by their respective Social Security numbers. See 26 U.S.C. § 6109. Thus, Defendant's insistence that Plaintiff provide his Social Security number does not amount to unlawful national origin discrimination under Title VII. See Baltgalvis v. Newport News Shipbuilding Inc., 132 F.Supp.2d 414, 418-19 (E.D. Va.) (dismissing Title VII discrimination claim because the requirement that plaintiff provide her Social Security number “was one imposed by federal law and merely implemented by [the employer]”), aff'd, 15 Fed.Appx. 172 (4th Cir. 2001).
With respect to Plaintiff's assertion that Defendant also discriminated against him because of his religious beliefs, Plaintiff merely states, “I practice Islam.” (Dkt. No. 1 at 5.) Beyond this conclusory statement, the Complaint does not provide any factual support whatsoever that would suggest Defendant did not hire Plaintiff because of his religion. See Foster v. Asheville Buncombe Cmty. Christian Ministry, No. 1:23-cv-101-MR-WCM, 2023 WL 3081296, at *2 (W.D. N.C. Apr. 24, 2023) (dismissing discrimination claim where plaintiff failed “to allege any plausible set of facts to show that it [was] more likely than not that he was subjected to adverse employment actions because of his religious beliefs”). Without more, the Court simply cannot discern an inference of religious discrimination from the Complaint and any such claims therefore fail.
CONCLUSION
For the reasons discussed above, the undersigned finds that Plaintiff's action is subject to summary dismissal for failure to state a federal claim upon which relief may be granted. The undersigned therefore RECOMMENDS that this action be DISMISSED without further leave to amend, as Plaintiff has already had an opportunity to do so. See Britt v. DeJoy, 45 F.4th 790, 798 (4th Cir. 2022); see also Workman v. Morrison Healthcare, 724 F. App'x. 280, 281 (4th Cir. June 4, 2018). The Clerk of Court shall not forward this matter to the United States Marshal Service for service of process at this time.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).