Opinion
5:22-CV-524-FL
06-27-2023
DERRICK ALLEN, Plaintiff, v. PARAGON THEATERS, et al, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court on the application by plaintiff Derrick Allen (“plaintiff”) to proceed in forma pauperis [D.E. 1] pursuant to 28 U.S.C. § 1915(a)(1) (“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). The court finds that defendant has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, for the reasons set forth below, it is recommended that plaintiff's complaint be dismissed.
As recently noted in this district:
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 “prolific pro 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. 1:21-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.Allen v. Anthony Clarke, et al., 5:23-CV-114-FL, [D.E. 5] at 3-4 (E.D. N.C. June 16, 2023), mem. & recomm. pending.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's application and finds that he has adequately demonstrated his inability to prepay the required court costs. His application to proceed in forma pauperis [D.E. 1] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S ALLEGATIONS AND CLAIMS
In this action, plaintiff asserts claims against six defendants: Paragon Theaters (“Paragon”); Professional Employer Resources (“P.E.R.”); Cary-Ann Philoctete; John Andel; Michael Consolazio; and Ashley Dreps. Compl. [D.E. 1-1] at 1. Plaintiff alleges that Paragon's principal office is in Cary, North Carolina, while P.E.R.'s principal office is in Maitland, Florida. Id. at 2. Plaintiff alleges (1) employment discrimination under Title VII of the Civil Rights Act of 1964 based on his race and sex, and (2) “retaliation, for actually addressing the (then) HR Director or Manager about Jaysha.” Id. at 2-3. Plaintiff's complaint states that plaintiff is “not sure” whether he filed charges with the Equal Employment Opportunity Commission (“EEOC”) regarding the alleged discriminatory conduct, “but will today.” Id. at 4.
In his filed Civil Cover Sheet, plaintiff indicates that the court has federal jurisdiction under 28 U.S.C. §§ 1331 and 1332, and 18 U.S.C. § 242; and claims violations of the Seventh, Eighth, and Fourteenth Amendments to the Constitution of the United States. [D.E. 1-2] (Civ. Cover Sheet § VI. Cause of Action). Plaintiff seeks recovery of back pay, reinstatement of his former job, and any other relief as may be appropriate. [D.E. 1-1] at 5.
Plaintiff's handwritten complaint alleges the following facts in support of his causes of action:
Paragon theaters and its employees as with Ashley Dreps, Michael Consolazio and John Andel fail to report hours worked for approximately six or seven months which infringes the 7th, 8th and 14th Amendment of the U.S. Constitution. Insofar as [P.E.R.] are concerned, were not able [sic] to produce a check until I confirmed and/or communicated the hours work [sic] via email December 19th which the General Manager approved by email for the Pay-Roll [sic] specialist of P.E.R. to produce a check for 8 hours, please see email attachments.Compl. [D.E. 1-1] at 4.
Plaintiff references “email attachments” ostensibly in support of his handwritten complaint. The court notes, however, that no attachments have been filed or otherwise appear in the docket of this matter.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), mem. & recomm. adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a 4 federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here, the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978).
III. ANALYSIS
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). A court may consider subject matter jurisdiction as part of the frivolity review. See Lovern 190 F.3d at 654.
A. LACK OF SUBJECT MATTER JURISDICTION
1. Failure to Exhaust Administrative Remedies for Civil Rights Claims
If plaintiff had an actionable claim under Title VII for employment discrimination, this court would have subject matter jurisdiction. Under Title VII, an employer may not “discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ....” 42 U.S.C. § 2000e-2(a). A plaintiff must exhaust his administrative remedies by bringing a charge with the 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, 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). However, this court has the authority to consider affirmative defenses sua sponte when a litigant seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 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)).
A prerequisite to the filing of an actionable claim for violations of Title VII is the filing of a charge with the EEOC. Mitchell v. N. Carolina Div. of Employment Sec., 76 F.Supp.3d 620, 624 (E.D. N.C. 2014), aff'd, 599 Fed.Appx. 517 (4th Cir. 2015) (dismissing Title VII claims on frivolity review for plaintiff's failure exhaust administrative remedies with the EEOC). With few exceptions, the Fourth Circuit has “long held that receipt of, or at least entitlement to, a right-to-sue letter [from the EEOC] is a jurisdictional prerequisite that must be alleged in a plaintiff's complaint.” Davis v. North Carolina Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (emphasis added).
Here, plaintiff does not include a right-to-sue letter from the EEOC with his filings. Instead, he alleges that he is “not sure” whether he filed charges with the EEOC regarding the alleged discriminatory conduct, “but will today.” [D.E. 1-1] at 4. Plaintiff's promise to file a claim with the EEOC after he filed suit in this court does not satisfy plaintiff's requirement to exhaust his administrative remedies before filing suit. See Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002) (“Before a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC.”) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000)); see also Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005) (“The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit.”). Accordingly, the undersigned recommends that the court dismiss plaintiff's Title VII claim without prejudice.
2. Lack of Jurisdiction under 18 U.S.C. § 242
For federal question jurisdiction, plaintiff also looks to 18 U.S.C. § 242. 18 U.S.C. § 242 is a criminal statute, and does not create private rights of action. See El Bey v. Celebration Station, No. 3:02CV461, 2006 WL 2811497, at *3 (W.D. N.C. 28 Sept. 2006) (“[18 U.S.C. § 242] however, do[es] not give rise to a civil action for damages, and neither the plaintiff nor this Court has the authority to issue a criminal complaint.”), aff'd, 242 Fed.Appx. 917 (4th Cir. 2007). Because it does not create a private right of action, it cannot serve as a basis for subject matter jurisdiction. The complaint is subject to dismissal on this ground.
Section 242 reads:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.18 U.S.C. § 242.
3. Constitutional Claims
Plaintiff also appears to claim federal question jurisdiction under 28 U.S.C. § 1331 and the Seventh, Eighth, and Fourteenth Amendments to the U.S. Constitution. Compl. [D.E. 1-1] at 4; [D.E. 1-2]. 28 U.S.C. § 1331 is the statute codifying federal question jurisdiction. It is not a source of substantive rights itself. Even if plaintiff's complaint is construed to assert a claim under 42 U.S.C. § 1983, as discussed below, any such claim would fail due to the lack of state action.
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Title 28 U.S.C. § 1331.
4. Diversity Jurisdiction
Plaintiff additionally appears to allege that the court has diversity jurisdiction in this matter. Plaintiff does not select “Diversity” as a basis of jurisdiction in Section II of his Civil Cover Sheet, however he cites to 28 U.S.C. § 1332 and completes Section III indicating (i) that he is a citizen of this state and (ii) that defendants include a citizen of another state, a business incorporated or with its principal place of business in this state, and a business incorporated or with its principal place of business in another state. See [D.E. 1-2] Civ. Cover Sheet §§ II. Basis of Jurisdiction (exclusively indicating federal question jurisdiction as the basis of this court's jurisdiction) and III. Citizenship of Principal Parties; Compl. [D.E. 1-1] at 1-2 (alleging that plaintiff resides North Carolina; Paragon's principal office is in Cary, North Carolina; and P.E.R.'s principal office is in Maitland, Florida).
Although plaintiff is a citizen of North Carolina and P.E.R. has its principal office in Florida, “diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in original). As alleged, Paragon's principal office is in North Carolina, and, therefore, there is not complete diversity of citizenship in this matter. The complaint is subject to dismissal for lack of subject matter jurisdiction on this ground as well.
B. FAILURE TO STATE A CLAIM
1. Failure to State a Claim under 42 U.S.C. § 1983
Plaintiff alleges violations of the Seventh, Eighth, and Fourteenth Amendments to the U.S. Constitution. Compl. [D.E. 1-1] at 4. In liberally reading plaintiff's filings, the court construes the complaint to assert a claim under § 1983, the statute which provides a cause of action for alleged constitutional violations. To establish a claim under § 1983, a plaintiff must prove: “(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL, 2021 WL 312621, at *2 (E.D. N.C. Jan. 6, 2021), mem. & recomm. adopted, No. 4:20-CV-233-FL, 2021 WL 308592 (E.D. N.C. Jan. 29, 2021), aff'd, No. 21-2110, 2021 WL 5985559 (4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D. N.C. 12 Apr. 2012)) (internal citations omitted) (internal quotation marks omitted). Plaintiff's § 1983 claims fail against each defendant because there is no indication that any defendant was acting under the color of state law.
The “under-color-of-state-law element of § 1983,” is similar to the Fourteenth Amendment's “state-action” requirement in that it “excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838, 1029 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (noting the equivalence of the § 1983's “color of law” requirement and the Fourteenth Amendment's “state action” requirement). The United States Court of Appeals for the Fourth Circuit has identified several contexts in which private action may be found to constitute state action, such as:
(1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen. If the conduct does not fall into one of these four categories, then the private conduct is not an action of the state.Andrews v. Fed. Home Loan Bank, 998 F.2d 214, 217 (4th Cir.1993).
Plaintiff's complaint does not mention any state actors let alone that they coerced any of the defendants, delegated any functions to them, or were enforcing the rights of any private citizen. As there is no indication in the filings that the defendants were anything but non-state parties engaged in private action, any § 1983 claims against defendants would fail.
2. Absence of Cause of Action under 18 U.S.C. § 242
In addition, as addressed above in the context of lack of subject matter jurisdiction, the criminal statute upon which plaintiff expressly relies for his claim, 18 U.S.C. § 242, does not create private rights of action. See El Bey, 2006 WL 2811497, at *3. The complaint is thereby subject to dismissal for failure to state a claim upon which relief can be granted. See Andrews v. Wolcott Rivers Gates, No. 3:14CV76-HEH, 2014 WL 3016483, at *2 (E.D. Va. 3 July 2014) (holding that plaintiff failed to state a claim upon which relief could be granted where his claim was asserted pursuant to a criminal statute that did not include a private right of action), aff'd, 587 Fed.Appx. 75 (4th Cir. 2014).
3. Deficient pleading
Finally, the deficient pleading in the complaint (Compl. [D.E. 1-1] at 4) subjects the complaint to dismissal for failure to state a claim upon which relief may be granted. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016).
For example, plaintiff alleges that he suffered “retaliation, for actually addressing the (then) HR Director or Manager about Jaysha” ([D.E. 1-1] at 3) but provides no further details on the relevance of the named individual, the nature of the interaction, or the nature of the retaliation. In short, plaintiff fails to allege any specific actions or circumstances relating to any of the named defendants in this allegation. Similarly, plaintiff references certain “email attachments” that would ostensibly shed additionally light on his claims but fails to submit any such documents or files in his filings.
The court finds such statements of plaintiff's claims to be insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8.
For the reasons given above, the court therefore concludes that plaintiff's complaint fails to state a claim upon which relief may be granted and recommends that this case also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until July 11, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must co0nduct 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiff 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 27th day of June, 2023.