Opinion
No. 4:18-CV-120-D
08-02-2018
CURTIS PULLEY, et al., Plaintiffs, v. GREENVILLE HOUSING AUTHORITY, et al., Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915 and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1]. Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs and the application is allowed. However, the complaint fails to state a claim for relief. Accordingly, 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. 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). Of course, as part of its review, the court may consider whether it has subject matter jurisdiction of the case. 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"); Wright v. Huggins, No. 5:09-CV-551-D, 2010 WL 2038806, at *2-3 (E.D.N.C. Mar. 11, 2010) (dismissing complaint on basis of lack of subject matter jurisdiction as part of court's frivolity review under 28 U.S.C. § 1915) (citations omitted).
II. ANALYSIS
Plaintiff brings this action for racial and religious discrimination, and violation of the Voting Rights Act of 1965, against defendants. Compl. [DE-1-1] at 2. Plaintiff proffers minimal factual allegations in the complaint. Liberally construing the pro se filings, the court discerns three separate claims related to housing, banking, and voting.
The first is with respect to Plaintiff's housing with the Greenville Housing Authority, stating that Greenville Housing Authority "refuse[s] to accept [his] rent in a timely ma[nn]er." Id. Plaintiff alleges that he uses his apartment for "prayer time to communicate with God almighty from 3:00 a.m. to 12:00 noon," which Greenville Housing Authority "did not approve of." [DE-1-2] at 2. He alleges that his apartment, which is currently "under eviction notice," has been entered without his consent and money has been stolen. Id. Further, he states that there is surveillance footage which would show the alleged illegal entry, and he requests that those videotapes be "subpoenaed as well as an expert to analyze the tapes." Id. He asserts that the Pitt County, North Carolina Clerk's Office incorrectly completed a subpoena, preventing the Sheriff's Office from serving the subpoena, and ultimately causing a judge to "rule against" Plaintiff with respect to the subpoena, all of which he alleges was a conspiracy to evict him in order to raise the rent. Id.
These facts may be liberally read to allege discrimination in violation of the Fair Housing Act. The Fair Housing Act was enacted to provide fair housing throughout the United States. 42 U.S.C. § 3601. Section 804 of the Fair Housing Act makes it unlawful "to discriminate against any person in the terms, conditions or privileges of . . . rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin" or because of handicap. 42 U.S.C. § 3604(b), (f). To establish a claim under the Fair Housing Act, Plaintiff must demonstrate that the housing action or practice being challenged was either motivated by a discriminatory purpose or had a discriminatory impact. See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986 (4th Cir. 1984). The only indication Plaintiff provides in the complaint of discrimination is his statement that Greenville Housing Authority did not "approve of him praying in his apartment. [DE-1-2] at 3. Such conclusory allegations are not entitled to the presumption of truth. See Iqbal, 556 U.S. at 681. Further, Plaintiff does not allege that this disapproval of his use of his apartment for prayer resulted in his eviction. Therefore, with respect to any claims under the Fair Housing Act, the court recommends such claims be dismissed for failure to state a claim where Plaintiff has failed to plead plausible allegations that a housing action was motivated by a discriminatory purpose or had a discriminatory impact. See Bailey v. Village Green Mutual Homes Inc., No. RWT 12-cv-3079, 2014 WL 198348 (D. Md. Jan. 14, 2014) (dismissing case for failing to plead how the plaintiff was discriminated against based on race or in retaliation for pursuing a charge of discrimination other than to generally allege that he was discriminated against for being Muslim).
To the extent Plaintiff aims to use this forum to attack a state-court eviction, the Rooker-Feldman doctrine bars the court from exercising such review as the court is without subject matter jurisdiction, and the court accordingly recommends that any such claim be dismissed. See Carmichael v. Irwin Mort. Corp., No. 5:14-CV-122-D, 2014 WL 7205099, at *3 (E.D.N.C. Dec. 17, 2014) ("This court, however, lacks subject matter jurisdiction to sit in direct review of a North Carolina state foreclosure action."); Everette v. Peele, No. 5:14-CV-213-BO, 2014 WL 4961099, at *3 (E.D.N.C. July 28, 2014) ("Although Plaintiff is not explicitly requesting that the court vacate or 'undo' the state court's judgment of foreclosure, to grant relief on this claim would require a finding that the state court's judgment was in error. As such, this claim should be dismissed as barred by the Rooker-Feldman doctrine."), adopted by 2014 WL 4961102 (E.D.N.C. Oct. 3, 2014).
With respect to the alleged conspiracy regarding the Pitt County Clerk's Office incorrectly completing a subpoena, Plaintiff has provided no legal basis for a cause of action and the court can conceive of none. To the extent Plaintiff refers to criminal conspiracy, there is no private cause of action for a violation of the criminal statute pertaining to conspiracy, and, accordingly, the court recommends that any such claims be dismissed for failure to state a claim. See Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990) ("No citizen has an enforceable right to institute a criminal prosecution."). Likewise, the court finds Plaintiff has failed to state a federal claim related to the allegations that his apartment was entered without consent and money was stolen, and it is recommended that the court decline to exercise supplemental jurisdiction over any state law claims pursuant to 28 U.S.C. § 1367(c)(3).
Plaintiff's second claim is with respect to an alleged conspiracy amongst financial institutions to prevent him from opening bank accounts based on discrimination. [DE-1-2] at 2. He alleges that Wells Fargo refused to open a new bank account under his campaign committee's name, the Pulley Committee, because Equifax advised them not to do business with Plaintiff. Id. at 2. Similarly, Plaintiff alleges that BB&T refused to open a merchant account for his business, Listen to God Ministries, because Equifax advised them not to. Id. Other than alluding to conspiracy and discrimination, Plaintiff fails to include any factual allegations that would support a cause of action with respect to these financial institutions, and reliance on legal terms is insufficient in a complaint. Twombly, 550 U.S. at 555 (holding a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (holding a court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments."). With respect to Plaintiff's cursory allegation to discrimination, he fails to plead the basis of the discrimination, citing both racial and religious discrimination generally in the jurisdictional statement of his complaint. Although the court must liberally construe pro se, Plaintiff's allegations, it "cannot ignore a clear failure to allege facts" that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp. 2d 766, 766 (E.D.N.C. 2011). Accordingly, the court recommends any claims with respect to these financial institutions be dismissed for failure to state a claim.
Throughout the complaint, Plaintiff consistently refers to this party as "Fquifax." However, given its context within the allegations and the address listed on the proposed summons, the court considers this a typographical error and will instead refer to the party as "Equifax," the assumed party name. --------
Lastly, Plaintiff cursorily alleges that he "was discriminated [against] because [he] register[ed] to vote and [to run for] candidate for mayor of Greenville, N.C.," and that he was "blacklisted from the news media." Id. at 3. In his jurisdictional statement, Plaintiff cites the Voting Rights Act of 1965 and states that the Act was signed into law in order to "overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote as guaranteed under the [Fifteenth] Amendment." Compl. [DE-1-1] at 2. He then propounds what appears to be a business plan for the "University Healing Complex," a 100,000-seat complex in Greenville, North Carolina which would include over 400 fine restaurants, over 500 retail stores, a television radio network, create 35,000 new jobs, and reap $4 trillion in revenue in the first 20 years. Id. In liberally construing the complaint, the court cannot discern a cause of action for which the court could exercise jurisdiction. The Voting Rights Act was enacted to "rid the country of racial discrimination in voting," State of South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966), by providing a means for which "aggrieved persons" whose voting rights have been denied or impaired have standing to bring suit. 42 U.S.C. § 1973a. While Plaintiff cursorily cites the Voting Rights Act of 1965, he fails to plead any facts that may implicate a cause of action under the Act. Iqbal, 556 U.S. at 678. Rather, his allegations read plainly negate any such claim where he appears to have registered to vote and registered to run for public office without objection from the government. Accordingly, the court recommends that Plaintiff's claimant be dismissed where it fails to state a claim upon which relief can be granted.
III. CONCLUSION
For the reasons stated herein, the 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 August 16, 2018 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).
Submitted, the 2nd of August 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge