Opinion
7:22-CV-39-FL
09-08-2022
KATHY JUANITA REAVES, Plaintiff, v. PUBLIC SCHOOLS OF ROBESON COUNTY, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on Plaintiffs amended application to proceed in forma pauperis, [DE-12], 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. However, it is recommended that the complaint be dismissed for failure to state a claim.
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 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. Discussion
Plaintiff alleges she was employed as a CTE teacher, or resource teacher, by the Robeson County Public Schools, and she brings this action against the Public Schools of Robeson County, the Public Schools of Robeson County Board of Education, Michael Mike Smith, Brenda Fairley-Ferebee, Freddie Williamson, Angela Faulkner, Catherine Truitt, Roy Cooper, the Public Schools of North Carolina, the North Carolina Department of Public Instruction, the North Carolina State Board of Education, and the State of North Carolina. On December 6, 2021, Plaintiff filed a grievance against defendant Freddie Williamson, the Superintendent for the Public Schools of Robeson County. On December 10, 2021, Williamson had Plaintiffs work email blocked, which prevented her from accessing the CTE curriculum and standards she needed to teach CTE, and resulted in her seventy-two CTE students being denied CTE education from December 10 through February 28. Plaintiff, who is black, asserts that the work email addresses of a white male and a white female resource teacher were not blocked. Plaintiff further alleges that she and her seventy-two CTE students were discriminated against, and defendants Angela Faulkner, the school principal, and Freddie Williamson failed to report the discrimination as required by federal and state law. On February 14, Plaintiff made a statement accusing Faulkner of falsifying CTE grades to the State of North Carolina Department of Public Instruction. Compl. [DE-1-1].
Plaintiffs email access was restored on March 1, 2022, and on that day and the following day, Faulkner attempted to conduct a teacher evaluation of Plaintiff, which Plaintiff refused. On March 2, Plaintiff informed Defendants via email that she was reporting the alleged discrimination against the CTE students to the United States Department of Education, and Plaintiff also informed the parents of her CTE students that they were discriminated against and denied CTE education. On March 3, Plaintiff was suspended with pay for ninety days and escorted from the school premises by law enforcement, while the white resource teachers, Faulkner, and Williamson remained employed. The grievance Plaintiff filed against Williamson was not addressed at board meetings on January 3 and February 23, 2022, and remains outstanding. Plaintiff brings claims under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, the North Carolina Retaliatory Employment Discrimination Act (“REDA”), the Whistleblower Protection Act of 2014, Chapter 115C of the North Carolina General Statutes for Elementary and Secondary Education, the North Carolina State Tort Claims Act, 20 U-S.C. § 1703, and for interference with contract. Plaintiff seeks monetary damages. Compl. [DE-1 -1 ].
1. Due Process
Plaintiff alleges a Fourteenth Amendment procedural due process claim, which the court construes as a claim under 42 U.S.C. § 1983, based on her work email being blocked without a legal explanation. Compl. [DE-1-1] ¶¶ 108-110.
To state a procedural due process claim, a plaintiff must show “(1) a cognizable liberty or property interest; (2) the deprivation of that interest by some form of state action; and (3) that the procedures employed were constitutionally inadequate.” Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). “In assessing a procedural due process claim, unless there has been a deprivation of a protected liberty or property interest by state action, the question of what process is required is irrelevant, for the constitutional right to due process is simply not implicated.” Id. at 146. As the court recently explained,
“The Supreme Court has identified ‘certain attributes of ‘property' interests protected by procedural due process.'” Strickland, 32 F.4th at 348 (quoting Bd. of Regents of State Colls, v. Roth, 408 U.S. 564, 577 (1972)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” 408 U.S. at 577. Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. “A ‘person's interest in a benefit is a ‘property' interest for due process purposes if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.' ” Strickland, 3 2 F .4th at 348 (quoting Perry v. Sindermann, 408 U.S. 593, 601 (1972)).Helsius v. Raleigh-Durham Airport Auth., No. 5:21-CV-433-FL, 2022 WL 2532488, at *4 (E.D. N.C. July 7, 2022).
Plaintiff alleges that her work email was blocked without legal explanation. [DE-1-1] ¶¶ 108-110. While due process protections can extend, under certain circumstances, to continued employment, Helsius, 2022 WL 2532488, at *5, the court has found no authority to support a work email account being a protected property interest for due process purposes. Accordingly, Plaintiff has failed to state a procedural due process claim based on the deprivation of her work email account.
To the extent Plaintiffs complaint could be liberally construed to allege that her suspension with pay constituted a procedural due process violation, she has likewise failed to state a claim. Under North Carolina law, the superintendent may, under certain circumstances, suspend a teacher with pay for a reasonable period of time, not to exceed ninety days. N.C. Gen. Stat. § 11 SC-325.5(c). If the superintendent does not initiate dismissal or demotion proceedings against the teacher within the ninety-day period, the teacher must be reinstated immediately. Id. There are notice and hearing procedures regarding the dismissal or demotion of a teacher for cause set forth in N.C. Gen. Stat. § 115C-325.6.
Plaintiffs complaint alleges that she was suspended with pay for ninety days on March 3, 2022. [DE-1-1] ¶ 52. Plaintiff filed her complaint on March 11, 2022, prior to the end of the ninety-day period, and there is no allegation that dismissal or demotion proceedings had been initiated against her by the superintendent. Thus, under North Carolina state law, Plaintiff was not yet due a hearing. Because an actionable constitutional violation “is not complete unless and until the State fails to provide due process,” Zinermon v. Burch, 494 U.S. 114, 126 (1990), Plaintiff has failed to state a claim for violation of her due process rights. See Gilreath v. Cumberland Cnty. Bd. of Educ., 253 N.C.App. 238,798 S.E.2d 438 (2017) (dismissing a teacher's federal procedural due process claim and finding “[t]he statutory scheme set out in N.C. Gen. Stat. § 115C-325 provided Plaintiff with all of the procedural due process to which he was constitutionally entitled,” and the plaintiff failed to take advantage of the process afforded to him).
Accordingly, it is recommended that Plaintiffs due process claim be dismissed without prejudice.
2. Title VII
Plaintiff alleges she was discriminated against when her work email was blocked while the emails of her white co-workers were not blocked. Compl. [DE-1-1] ¶¶ 77-88.
Title VII prohibits an employer from “discharging] any individual, or otherwise . . . discimin[ating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . .” 42 U.S.C.A § 2000e-2(a). A plaintiff is required to exhaust her administrative remedies by bringing a charge with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. See Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) (citing 42 U.S.C. § 2000e-5(b), (f); 29 U.S.C. § 633a(d)). “The allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). While the charge-filing requirement is not jurisdictional, i.e., it can be forfeited if not timely raised, the requirement is mandatory. See Fort Bend Cnty., Texas v. Davis, - U.S. -, 139 S.Ct. 1843, 1849-51 (2019); Rios v. City of Raleigh, No. 5:19-CV-00532-M, 2020 WL 5603923, at *7 (E.D. N.C. Sept. 18, 2020). 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 has not alleged that she exhausted her administrative remedies by filing a charge with the EEOC prior to bringing this action. See Francisco Ramos v. Def. Commissary Agency, No. 5:18-CV-380-BO, 2020 WL 1165282, at *1 (E.D. N.C. Mar. 9, 2020) (dismissing Title VII claim where plaintiff did not file a charge with the EEOC), aff'd, 822 Fed.Appx. 217 (4th Cir. 2020). Accordingly, Plaintiffs Title VII claim should be dismissed for failure to exhaust administrative remedies.
Alternatively, Plaintiff has failed to plausibly allege that she was discriminated against because of her race in violation of Title VII. Plaintiff alleged that she is a black resource teacher and was treated differently than two white resource teachers when her email was blocked and when she was suspended but the white teachers' emails were not blocked and they remained employed. [DE-1-1] ¶ 12. There are no allegations in the complaint that constitute direct evidence of race discrimination. “Absent direct evidence [of discrimination], the elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)), aff'd, 566 U.S. 30 (2012). “Although an employee need not prove a prima facie case of discrimination to survive a motion to dismiss, he must state a plausible right to relief.” Ofoche v. Apogee Med. Grp., Va., P.C., 815 Fed.Appx. 690, 692 (4th Cir. 2020) (citing Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017)). To state a plausible claim, the complaint must contain allegations from which the court could find that defendant took adverse employment action against plaintiff because of her race. See McCleary-Evans v. Maryland. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015).
Plaintiffs claim that she was discriminated against based on her race is speculative. While Plaintiff has alleged she was treated differently than two other employees who are of a different race, there are no factual allegations from which the court could draw a plausible inference that she was treated differently and discriminated against because of hex race. See id. at 586 (finding allegation that employer did not hire the plaintiff because the decision makers were biased was too conclusory, and explaining that “[w]hile the allegation that non-Black decisionmakers hired nonBlack applicants instead of the plaintiff is consistent with discrimination, it does not alone support a reasonable inference that the decisionmakers were motivated by bias.”). It is not enough to simply state that one was treated differently and is a member of a protected class. See Nadendla v. WakeMed, 24 F.4th 299, 306 (4th Cir. 2022) (concluding the plaintiffs allegations-that but for her race defendant's wrongful conduct would not have occurred and plaintiff suffered harm due to defendant's racial discrimination-were insufficient to State a claim because there were no facts alleged to support a plausible inference that the defendant's actions were because of the plaintiffs race). Accordingly, it is recommended that Plaintiffs Title VII claim be dismissed without prejudice for failure to state a claim.
3. REDA
Plaintiff alleges that she filed a complaint with the North Carolina Department of Labor under REDA against defendant Freddie Williamson and the Public Schools of Robeson County for suspending her in retaliation for filing a grievance against Williamson. [DE-1-1] ¶ 3. Plaintiff states that “on March 3,2022 the NCDOL found probable cause to move forward with a retaliatory complaint against defendants Public Schools of Robeson County and defendant Freddie Williamson pursuant to REDA Retaliation.” Id. ¶ 51. However, Plaintiff does not allege that these administrative remedies have been exhausted, i.e., that she has received a right to sue letter, which is a prerequisite to bringing a REDA claim in federal court. See Krings v. AVL Techs., No. 1:20-CV-259-MR-WCM, 2021 WL 1235129, at *5 (W.D. N.C. Feb. 10, 2021) (“[A] REDA claim requires a plaintiff to first obtain a right-to-sue letter.”) (citing Whitfield v. DLP Wilson Med. Ctr., LLC, 482 F.Supp.3d 485, 496 (E.D. N.C. 2020) (“Before filing a lawsuit under REDA, plaintiff must file a complaint with the North Carolina Commissioner of Labor, obtain a right-to-sue letter from the Commissioner, and file suit within 90 days of receiving that letter. These claim processing rules are mandatory under North Carolina law.”)), report and recommendation adopted, 2021 WL 1233478 (W.D. N.C. Apr. 1, 2021); Satterwhite v. Wal-Mart Stores E. . L.P., No. 5:ll-CV-363-BO, 2012 WL 255347, at *3 (E.D. N.C. Jan. 26, 2012) (stating that “[i]n order to bring a civil complaint under REDA, a plaintiff must first file a complaint with the [NCDOL] within 180 days of the alleged violation and receive a right-to-sue-letter”). Accordingly, it is recommended that Plaintiffs REDA claim be dismissed without prejudice for failure to exhaust her administrative remedies.
4. The North Carolina Whistleblower Act
Plaintiff alleges that she notified Defendants on March 2, 2022 that she was reporting to the U.S. Department of Education and the U.S. Department of Justice that her CTE students were discriminated against and denied CTE education and that she filed a REDA complaint against Williamson, and Plaintiff was suspended on March 3 as a result of the reports. [DE-1-1] ¶¶ 99105.
“The NCWPA imposes certain requirements on, and provides protection from retaliation to, state employees who report misconduct of a state agency or state employee.” Whitfield, 482 F.Supp.3d at 496 (citing N.C. Gen. Stat. §§ 126-84, 126-85). The three essential elements of a Whistleblower Act claim are “(1) that the plaintiff engaged in a protected activity, (2) that the defendant took adverse action against the plaintiff in his or her employment, and (3) that there is a causal connection between the protected activity and the adverse action taken against the plaintiff.” Newberne v. Dep't of Crime Control & Pub. Safety, 359 N.C. 782, 788, 618 S.E.2d 201, 206 (2005). “The Act protects State employees from intimidation or harassment when they report on ‘matters of public concern.'” Yili Tseng v. Martin, 247 N.C.App. 400, 786 S.E.2d 433 (2016) (quoting Hodge v. N.C. Dept. of Transp., 175 N.C.App. 110, 116, 622 S.E.2d 702, 706 (2005)). “The Act was not intended to protect an employee's right to institute a civil action concerning individual employee grievances.” Id. (citing Hodge, 175 N.C.App. at 117, 622 S.E.2d at 707).
The North Carolina Whistleblower Act is found in Chapter 126, Article 14 of the North Carolina General Statutes. See N.C. Gen. Stat. §§ 126-84, et seq. Section 126-5 lists those to whom the provisions of Chapter 126 apply and public school teachers are expressly excluded from the scope of Chapter 126. Id. § 126-5(c2)(1); see Johnson v. Forsyth Cnty., 227 N.C.App. 276, 280, 743 S.E.2d 227, 229 (2013) (concluding that “[o]nly the employees of certain local entities fall within the purview of Chapter 126; any local entities absent from that list are excluded from the provisions of Chapter 126, including the Whistleblower Act,” and holding County Board of Elections employees are county employees, not state employees, and therefore, are not covered by the Whistleblower Act). Plaintiff alleges she was a public school teacher at Townsend Middle School in Robeson County. Compl. [DE-1-1] ¶ 36. Accordingly, because Whistleblower Act expressly does not apply to public school teachers, Plaintiff cannot state a claim under the Act, and this claim should be dismissed with prejudice.
5. Chapter 115C
Plaintiff contends Defendants violated N.C. Gen. Stat. §§ 115C-276(p), 115C-288(b), and 115C-307 by failing to make accurate reports to the Superintendent regarding her CTE students, preventing her from doing her job by blocking her email, and failing to suspend Faulkner and Williamson. [DE-1-1] ¶¶ 17-19, 90, 92. Section 115C-276(p) provides as follows:
The superintendents may require teachers to make reports to the principals and principals to make reports to the superintendent. Any superintendent who knowingly and willfully makes or procures another to make any false report or records, requisitions, or payrolls, respecting daily attendance of pupils in the public schools, payroll data sheets, or other reports required to be made to any board or officer in the performance of his duties, shall be guilty of a Class 1 misdemeanor and the certificate of such person to teach in the public schools of North Carolina shall be revoked by the Superintendent of Public Instruction.Section 115C-288(b) has similar provisions applicable to principals, and section 115C-307 outlines the duties of teachers, including a duty to teach their students “as thoroughly as they are able,” and contains reporting requirements similar to those listed above.
None of the statutes expressly provide for a private right of action, and North Carolina “case law generally holds that a statute allows for a private cause of action only where the legislature has expressly provided a private cause of action within the statute.” Lea v. Grier, 156 N.C.App. 503, 508, 577 S.E.2d 411, 415 (2003) (quoting Vanasekv. Duke Power Co., 132 N.C.App. 335, 339, 511 S.E.2d 41, 44 (1999)). Accordingly, Plaintiff cannot state a claim under N.C. Gen. Stat. §§ 115C-276(p), 115C-288(b), and 115C-307, and these claims should be dismissed with prejudice.
Plaintiff alleges that between December 10, 2021 and February 28, 2022, while her email was blocked, she was denied equal education opportunity when she was not able to access CTE matters and education courses that she could use towards her certification and recertification, while white co-workers were afforded the opportunities to do so. Compl. [DE-1-1] ¶ 107.
Section 1703 prohibits a state from denying equal educational opportunity to an individual on account of her race by (a) segregating students on the basis of race, (b) failing to remove the vestiges of a dual school system, (c) assigning students to certain schools in a discriminatory manner, (d) discriminating against faculty and staff on the basis of race in employment, employment conditions, and school assignment, (e) transferring students for purposes of racial segregation, and (f) failing to take action to overcome language barriers that impede equal participation by students. 20 U.S.C. § 1703. Subsection (d), regarding racial discrimination . against faculty and staff in employment conditions, appears to be the sole provision that could . apply to Plaintiff s claim. As with Plaintiff s Title VII claim, however, this claim must fail because there are no allegations to support a plausible inference that blocking Plaintiffs email address had anything to do with her race. Accordingly, it is recommended that this claim be dismissed without prejudice.
7. North Carolina Tort Claims Act
Plaintiff asserts Defendants violated the North Carolina Tort Claims Act by concealing and failing to report the discrimination against and denial of education to her CTE students, and intentionally inflicting emotional distress on her by failing to intervene. [DE-1-1] ¶¶ 89-95.
“Under the North Carolina Tort Claims Act (the “Act”), the Industrial Commission has exclusive jurisdiction over claims against the State, state departments, institutions, and agencies for personal injuries or damages sustained by any person due to the negligence of [a] state officer, agent, or employee acting within the scope of his employment.” Carmona v. North Carolina, No. 3:21-CV-00211-MR, 2021 WL 2295517, at *1 (W.D. N.C. May 26, 2021) (citing Guthrie v. State Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983)). Here, Plaintiff asserts a claim of intentional infliction of emotional distress rather than negligent conduct. See Vincent v. N C. Dep 't of Trans., No. 1:20CV51, 2020 WL 5710710, at *11 (M.D. N.C. Sept. 24, 2020) (concluding intentional infliction of emotional distress is an intentional tort) (citing Dickens v. Puryear, 302 N.C. 437, 452-53 (1981)). “The Act. .. does not give the Industrial Commission jurisdiction to award damages based on intentional acts,” and “[a]s such, injuries intentionally inflicted by employees of a state agency are not compensable under the Act.” Id. at *2 (citing Frazier v. Murray, 519 S.E.2d 525, 528 (N.C. App. 1999)). Accordingly, Plaintiffs claim under the North Carolina Tort Claims Act for intentional infliction of emotional distress should be dismissed with prejudice. .
To the extent Plaintiff seeks to bring a claim for intentional infliction of emotional distress against the individual Defendants in their individual capacities, the court should decline to exercise jurisdiction over these state law claims where Plaintiff has failed to state a federal claim. See 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm 'rs of Calvert Cnty., 401 F.3d 274,277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Accordingly, it is recommended any individual capacity state law claims be dismissed without prejudice.
8. Contractual Interference
Plaintiff claims that Defendants interfered with her contractual obligations by blocking her email. Compl. [DE-1-1] ¶¶ 97-98. Interference with contract is a state law tort claim. See Parks v. N.C. Dep'tof Pub. Safety, No. 5:13-CV-74-BR, 2014 WL 32064, at *5 (E.D. N.C. Jan. 6,2014) (concluding plaintiff's claim for tortious interference with contractual or prospective business relations was an intentional tort) (citing Blue Ridge Pub. Safety, Inc. v. Ashe, 712 F.Supp.2d 440, 447- 48 (W.D. N.C. 2010) (under North Carolina law, tortious interference with contract and tortious interference with prospective economic advantage are intentional torts); see Charles E. Daye & Mark W. Morris, North Carolina Law of Torts §§ 14.10-14.60 (2d ed. 1999). Where it is recommended that Plaintiff's federal claims be dismissed, the court should decline to exercise jurisdiction over this state law claim. See 28 U.S.C. § 1367
III. Conclusion
For the reasons stated herein, Plaintiff's 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 September 22, 2022 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).