United States District Court, E.D. North Carolina, Western Division
DANIELLE A. CARTER, Plaintiff,
LCA OVERLOOKE AT SIMMS CREEK, LP, and OVERLOOK AT SIMMS CREEK APARTMENTS, Defendants.
MEMORANDUM AND RECOMMENDATION
B. Jones, Jr. United States Magistrate Judge
matter is before the court for a memorandum and
recommendation 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 her inability to pay the required
court costs, however, the court finds that the complaint
fails to state a claim over which the court has subject
matter jurisdiction. Accordingly, it is recommended that the
application to proceed in forma pauperis be denied
and the complaint be dismissed.
STANDARD OF REVIEW
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
E3d 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).
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).
original complaint, attached as an exhibit to her motion for
leave to proceed in forma pauperis, lists the named
defendants in the caption of this memorandum and
recommendation. [DE-1-1]. On March 5, 2018, the court ordered
that Plaintiff's complaint was insufficient where she
attempted to incorporate by reference the allegations
contained in a complaint sent to the North Carolina
Department of Justice and failed to state her allegations in
the complaint in the instant case. [DE-5]. Accordingly, on
March 26, 2018, Plaintiff filed a corrected complaint wherein
she stated her initial allegations with respect to the
original defendants, and named the following additional
defendants: Tiara Green, Jimmy Gibbs, A'Keisha Thomas,
Ricardo (Maintenance), Drucker and Falk, Lamara Management
Group, Jennifer Cooper, Raleigh Housing Authority, HUD, the
United States, and On Point Security. [DE-7] at 1-2. The
court reviews the corrected complaint, and the additional
defendants named therein, in conducting the frivolity review.
asserts a claim for discrimination based on Defendants'
treatment of her while she lived at Overlook at Simms Creek
Apartments. Compl. [DE-7] at 2-11. Plaintiff specifically
alleges that the landlords "would not accommodate for
perceived disabilities, " id. at 2; Defendant
Tiara Green "intimidated" Plaintiff by demanding
her to "take [her] bra off and exploiting
Plaintiff's personal information, including her name,
whereabouts, and health issues, and divulging the information
to other tenants, id; Defendants A'Keisha Thomas
and Jimmy Gibbs ridiculed Plaintiff regarding her stereo and
entertainment equipment, id. at 2-3; Plaintiff's
car was towed and tampered with while it was in the parking
lot of the Overlook at Simms Creek Apartments, id.
at 3; Defendant Jennifer Cooper "violently
attacked" Plaintiff, id; Defendant Lamara
Management Group requested the release of Plaintiff's
health information during lease negotiations in 2016 and
2017, and retaliated against Plaintiff when she refused by
breaking and entering into Plaintiff's apartment,
stealing her personal property, vandalizing her residence,
and subjecting her to sexual abuse by unknown individuals
with master keys, id. at 5; Plaintiff's parakeet
died due "to being tormented by the demands of Defendant
Jimmy Gibbs, id. at 6-7; Plaintiff's request for
a therapeutic animal was "avoided" in March/April
2017, id. at 7; the Raleigh Police Department
ridiculed Plaintiff by shouting, "Cry! She is the
Christ!" id; during a court appearance related
to Plaintiff's eviction, an attorney ridiculed Plaintiff
by smiling at her and calling her a derogatory name,
id. at 8; and Plaintiff was wrongfully evicted from
her residence, id. at 9-10. Plaintiff alleges that
she is "a Section 8 voucher holder" and resided in
"a tax-credit space" that was "federally
funded." Id. at 9.
carefully reviewed Plaintiff's allegations, the court
determines that Plaintiff has failed to demonstrate how this
court has subject matter jurisdiction. Federal courts have
limited subject matter jurisdiction and "there is no
presumption that the court has jurisdiction."
Pinkley, Inc. v. City of Frederick, 191 F.3d 394,
399 (4th Cir. 1999). The district court has (1) federal
question jurisdiction over "all civil actions arising
under the Constitution, laws, or treaties of the United
States, " 28 U.S.C. § 1331, and (2) diversity
jurisdiction "where the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs, and is between . . . citizens of different States . .
., " 28 U.S.C. § 1332(a)(1). "[T]he facts
providing the court jurisdiction must be affirmatively
alleged in the complaint." Pinkley, Inc., 191
F.3d at 399; New River Lumber Co. v. Graff, 889 F.2d
1084 (4th Cir. 1989) ("To establish Section 1332
jurisdiction, a moving party must affirmatively allege ...
the essential elements of diversity on the fact of his
allegations asserted, the only possible allegation that the
court could exercise federal question jurisdiction over is
the cursory allusion to "civil rights" and
"discrimination." However, Plaintiff has failed to
allege facts sufficient to support such claims. See
Persaud v. Morgan State Univ., 34 F.3d 1066, 1994 WL
446797, at *2 (4th Cir. 1994) ("Conclusory allegations
of discrimination are insufficient to state a claim.")
(citing Simpson v. Welch, 900 F.2d 33, 35 (4th Cir.
1990)); Williams v. North Carolina, No.
5:12-CV-680-D, 2013 WL 6048740, at *4 (E.D. N.C. Nov. 14,
2013) (dismissing claim related to allegedly discriminatory
foreclosure where plaintiffs made no plausible allegations to
support an equal protection claim).
Plaintiff fails to cite which particular law she alleges
Defendants violated. However, liberally construing her
complaint, the court will consider whether she has shown a
claim under Title III of the Americans with Disabilities Act
("ADA"), the Fair Housing Act ("FHA"), or
Rehabilitation Act. To state a claim under Title III of the
ADA, a plaintiff must allege: (1) that she is disabled within
the meaning of the ADA; (2) that defendant owns, leases, or
operated a place of public accommodation; and (3) defendant
discriminated against her by denying her a full and equal
opportunity to enjoy services provided at such place of
public accommodation. See 42 U.S.C. § 12182(a);
Blue v. Cumberland Cty., No. 5:14-CV-86-FL, 2015 WL
164722, at *2 (E.D. N.C. Jan. 13, 2015). The FHA prohibits
discrimination in housing against people with disabilities,
42 U.S.C. § 3604(f)(2), including "a refusal to
make reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to
afford such person [with a disability] equal opportunity to
use and enjoy a dwelling, " id. §
3604(f)(3)(B); City of Edmonds v. Oxford House,
Inc., 514 U.S. 725, 729 (1995). Lastly, the
Rehabilitation Act also forbids discrimination based on a
disability, but requires that a plaintiff show that exclusion
from programs receiving federal assistance was "solely
by reason of her or his disability." 29 U.S.C. §
794; See Halpern v. Wake Forest Univ. Health Scis.,
669 F.3d 454, 461-62 (4th Cir. 2012) ("To succeed on a
claim under the Rehabilitation Act, the plaintiff must
establish he was excluded 'solely by reason of his
disability; the ADA requires only that the disability was
'a motivating cause' of the exclusion.").
Plaintiff alleges that her "landlords would not
accommodate for perceived disabilities, " Compl. [DE-7]
at 2, and that her request for a "therapeutic
animal" was "avoided, " id. at 7,
Plaintiff fails to allege any specific disability. A general
assertion that she was discriminated against for her
"perceived disabilities, " is insufficient without
a more particularized showing to plead a claim under the ADA,
FHA, or the Rehabilitation Act. See Persaud, 34 F.3d
1066. Furthermore, to the extent Plaintiff asserts her civil
rights were violated, she has failed to allege the basis of
the discrimination. Id. While the court notes that
the complaint need not include "specific facts
establishing a prima facie case of discrimination . . .
[f]actual allegations must be enough to raise a right to
relief above the speculative level" and have
"enough facts to state a claim to relief that is
plausible on its face." Twombly, 550 U.S. at
555, 570. The court, "take[s] the facts in the light
most favorable to the plaintiff, " but it "need not
accept the legal conclusions drawn from the facts [or]
unwarranted inferences, unreasonable conclusions, or
arguments." Giarratano v. Johnson, 521 F.3d
298, 302 (4th Cir. 2008) (quotations omitted). Furthermore, a
court need not accept an allegation of federal subject matter
jurisdiction and instead must ensure that subject matter
jurisdiction exists. See McNutt v. Gen. Motors Acceptance
Corp., 289 U.S. 178, 189 (1936); Burgess v.
Charlottesville Sav. & Loan Ass'n, All 477 F.2d
40, 43-44 (4th Cir. 1973). Therefore, Plaintiff's failure
to allege a disability is fatal under the ADA, the FHA, and
the Rehabilitation Act. Without providing a more complete
factual basis of the discrimination alleged, Plaintiff runs
afoul of the pleading requirements under Twombly.
has also failed to allege facts sufficient to find that the
court has subject matter jurisdiction based upon diversity of
the parties. Plaintiff's complaint contains no
allegations of the citizenship of Defendants, but does list
addresses for two Defendants, both of which are located in
North Carolina. Therefore, Plaintiff has failed to establish
complete diversity, because Plaintiff is a citizen of the
same state as at least one of the Defendants. See Sampson
v. Leonard, No. 4:10-CV-121-D, 2011 WL 129634, at *1
(E.D. N.C. Jan. 12, 2011) ("Section 1332 requires
'complete diversity such that the state of citizenship of
each plaintiff must be different from that of each
defendant.'") (quoting Athena Auto., Inc. v.
DiGregorio, 166 F.3d 288, 290 (4th Cir. 1999)).
Accordingly, Plaintiff has failed to plead facts that would
support exercise of the court's diversity jurisdiction
under 28 U.S.C. § 1332. Where Plaintiff has failed to
plead a claim over which the court can exercise federal
jurisdiction, it is recommended the court decline to exercise
jurisdiction over any remaining state law tort claims.
Chesapeake Ranch Water Co. v. Bd. Comm'r 's
Calvert Cty., 401 F.3d 274 (4th Cir. 2005).