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Carter v. LCA Overlooke at Simms Creek, LP

United States District Court, E.D. North Carolina, Western Division

May 3, 2018



          Robert B. Jones, Jr. United States Magistrate Judge

         This 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.


         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 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).

         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).

         II. ANALYSIS

         Plaintiff's 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.

         Plaintiff 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.

         Having 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 complaint.").

         Of the 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).

         Here, 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.").

         While 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.

         Plaintiff 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).

         III. ...

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