Opinion
5:22-CV-525-D
03-06-2023
EGYPT EARTH-COLON, Plaintiff, v. SECRETARY OF STATE, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-1], and for frivolity review of the complaint, [DE-1-1], pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. Furthermore, the case is allowed to proceed, provided Plaintiff files a financial disclosure statement as directed by the court's prior notice, and if Plaintiff fails to do so, it is recommended the case be dismissed.
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 Plaintiff's 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 of Corr, 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). The 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).
IL DISCUSSION
Plaintiff Egypt Earth-Colon brings this action against the North Carolina Secretary of State under the Fair Labor Standards Act (“FLSA”) for failure to pay wages earned in August 2022, while working at the Department of Administration Mail Center. Plaintiff states that in October 2022, she contacted Mr. Blizzard at the Mail Center about not receiving her pay, and he said she should have already received it, asked if she had corrected her 1-9 form, and told her to email Temporary Solutions to let them know she had not been paid. Plaintiff emailed Robert Bolough at Temporary Solutions but received no response. Plaintiff reached out to Blizzard again, who responded that he would email Temporary Solutions personally but Plaintiff did not receive her pay or hear from Blizzard or Bolough. Plaintiff seeks monetary including punitive damages. Compl. [DE-1-1].
The FLSA, 29 U.S.C. § 203 et seq., requires employers to pay the minimum hourly wage to qualified employees in “any workweek.” 29 U.S.C. § 206(a); see Walsh v. Lalaja, Inc., No. 4:20-CV-189-FL, 2022 WL 1143290, at *2 (E.D. N.C. Apr. 18, 2022). North Carolina has expressly waived its sovereign immunity as to claims by state employees in state and federal courts for violations of the FLSA. See Blackmon v. Cohen, No. 1:17CV890, 2018 WL 2451246, at *3 (M.D. N.C. May 31,2018) (citing N.C. Gen. Stat. § 143-3OO.35(a)(1)). It is not entirely clear from the complaint whether Plaintiff was employed by Temporary Solutions or the state for purposes of the FLSA or whether Plaintiff has sued the correct Defendant. However, these issues are more appropriately considered on a fully briefed Rule 12(b)(6) motion. Accordingly, Plaintiff s FLSA claim may proceed at this time.
However, Plaintiff has failed to respond to the court's deficiency notice dated December 28, 2022 directing Plaintiff to file a financial disclosure statement pursuant to 7.1 of the Federal Rules of Civil Procedure and Local Civil Rule 7.3. Plaintiff shall file the financial disclosure statement by March 20, 2023, and if Plaintiff fails to do so it is recommended that this matter be dismissed for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962) (“The authority of a federal trial court to dismiss a plaintiffs action with prejudice because of his failure to prosecute cannot seriously be doubted.”); United States v. Merrill, 258 F.R.D. 302, 308 (E.D. N.C. 2009) (“Although Rule 41(b) does not itself provide for sua sponte dismissal, a district court has the inherent power to dismiss a case for lack of prosecution or violation of a court order.”) (citations omitted). If Plaintiff timely files the financial disclosure statement, the Clerk shall file the complaint and issue the summons prepared by Plaintiff, and the United States Marshal shall serve the summons and a copy of the complaint on defendant.
III. CONCLUSION
For the reasons stated above, the application to proceed in forma pauperis is allowed, the case is allowed to proceed provided Plaintiff timely files a financial disclosure statement by March 20, 2023, if Plaintiff fails to do so, it is recommended that this matter be dismissed for failure to prosecute. If Plaintiff timely files the financial disclosure statement, the Clerk shall file the complaint and issue the summons prepared by Plaintiff, and the United States Marshal shall serve the summons and a copy of the complaint on defendant.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 20,2023 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).