Opinion
5:23-CV-114-FL
06-16-2023
DERRICK ALLEN, Plaintiff. v. ANTHONY CLARKE, et al., Defendants.
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, [DE-2], and for frivolity review of the complaint, [DE-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.
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 Correction, 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.
II. DISCUSSION
Plaintiff alleges that during a Teams video he told his tutor she was beautiful and twice asked for her number. Compl. [DE-1] at 2. As a result, Plaintiff was written up for harassment. Id. Plaintiff contends his First Amendment right to freedom of speech was violated, and he seeks compensatory and punitive damages in the amount of $750,000.00. Id. at 2-3.
Plaintiff has failed to state a constitutional claim. First, the allegations of the complaint are sparse and do not allege any conduct by the three Defendants, Anthony Clarke, Scott Jaeschke, and Guilford Technical Community College. Second, not every perceived wrong or slight is a federal case, and the First Amendment does not protect all speech. Speech that would “undermine the school's basic educational mission” is not protected, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986), and “schools have a special interest in regulating speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others,'” Mahanoy Area Sch. Dist. v. B. L. by & through Levy, __U.S. __210 L.Ed.2d 403 (2021) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)). Remarking on someone's appearance and repeatedly asking for her number would be both disruptive to the educational mission and invasive to the rights of another and therefore, is not protected speech.
Plaintiff has filed numerous pro se lawsuits in this district, see 5:20-CV-144-BO; 5:21-CV-293-BO; 5:22-CV-179-BO; 5:22-CV-207-FL; 5:22-CV-224-BO; 5:22-CV-301-D; 5:22-CV-322-BO; 5:22-CV-00368-FL; 5:22-CV-423-M-KS; and 5:22-CV-452, and as well as in other districts, and has been referred to as a “prolificpro se litigator,” Allen v. Correct Care Sols., No. 1:21-CV-146, 2021 WL 954624, at *1 (M.D. N.C. Mar. 4, 2021), report and recommendation adopted sub nom. 2021 WL 949633 (M.D. N.C. Mar. 12, 2021), aff'd, 853 Fed.Appx. 858 (4th Cir. 2021), and a “serial filer who has taken undue advantage of IFP status,” Allen v. Birkhead, No. L21-CV-551, 2022 WL 16949733, at *1, 5 (M.D. N.C. Nov. 15, 2022) (ruling that “[b]ecause Plaintiff repeatedly has commenced meritless civil actions in this Court as a pauper (undeterred by clear instructions to cease his abusive litigation activities and the consequences of his failure to do so), the Court will deny the instant Applications.”). On February 6, 2023, the Chief Judge in the Middle District of North Carolina directed the Clerk of Court to refuse to accept for two years any civil action submitted by Plaintiff without prepayment of the full filing fee. See Allen v. Birkhead, No. 1:21-CV-551 (M.D. N.C. ). Plaintiff here continues his pattern of filing frivolous actions. Accordingly, it is recommended that Plaintiffs complaint be dismissed.
III. CONCLUSION
For the reasons stated above, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiffs claims against Defendant be DISMISSED for failure to state a claim.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until June 30, 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 may 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).
Submitted, this 16th day of June 2023.