United States District Court, E.D. North Carolina, Western Division
DANIELLE A. CARTER, Plaintiff,
THE CITY OF RALEIGH, THE STATE OF NORTH CAROLINA, RALEIGH POLICE DEPARTMENT, WAKE MED FACULTY PHYSICIANS, NC STATE BAR NO. 33930, C.E. WARREN, and JENNIFER COOPER, 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 inability to pay the required court
costs, but the complaint fails to state a claim over which
the court has 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 for 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.
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 Hctines
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). As part of
its frivolity 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).
filed a form complaint containing pre-generated typewritten
allegations of employment discrimination in a
fill-in-the-blank format, supplemented with Plaintiff's
handwritten information. Compl. [DE-1-1]. In her complaint,
Plaintiff also lists several federal laws that she asserts
apply to her case: the Equal Protection Clause of the United
States Constitution, the Omnibus Crime Control and Safe
Streets Act of 1968, the Civil Rights Act of 1964, the Fair
Housing Act, federal laws that prohibit discrimination based
on disability, national origin, race, sex, religion, marital
status, and public income receivership status, the Matthew
Shepard and James Byrd, Jr. Hate Crime Act, Criminal
Interference with Right to Fair Housing, 42 U.S.C. §
3631, Conspiracy Against Rights, 18 U.S.C. § 241, the
Health Insurance Portability and Accountability Act
("HIPAA"), and the Privacy Act of 1974; hate
crimes; defamation; grief and continuous abuse, harassment,
and retaliation actions; police misconduct; criminal
violations of civil rights; violations of civil rights of
institutionalized persons; violations of Equal Employment
Opportunity; and violations of educational opportunities.
Compl. [DE-1-1] at 5-7, 11.
assertions appear to stem from an alleged altercation between
herself and Defendant Cooper, to which Defendant Warren of
the Raleigh Police Department responded. Id. at 5-7.
Plaintiff alleges that, during this encounter, Defendant
Warren "responded [with] physical force to [her] body,
and turned [her] head to force [her] eyes to open and
acknowledge the officer," while Defendant Cooper
"remained sitting on [Plaintiff's] spine,"
"causing thoracic injuries." Id. at 7, 10.
Plaintiff alleges Defendant Warren made statements
insinuating Plaintiff has a mental disability. Id.
Plaintiff was then transported to WakeMed Hospital, where she
was called a "ho" and told not to laugh by a
paramedic. Id. at 7-8. Plaintiff states Defendant
Warren accompanied Plaintiff to the hospital, where he told
her to "not be a problem," laughed at Plaintiff,
told her to "calm down," and complained that
Plaintiff's blood had stained his uniform. Id.
at 8. While in the hospital, Plaintiff "was injected
with an unknown substance" after she had "refused
to consume bad harmful drugs that were defective."
Id. at 9. Plaintiff also alleges, separate and apart
from this incident, that the Raleigh Police Department
"continued to interfere with [her] housing rights by
failing to protect [her] life from bodily harm."
Id. Further, she alleges that on April 1, 2018, an
"unknown police officer from the Raleigh Police
Department, in uniform, entered [her] room at a Comfort
Inn" and forced her to remove the bedsheets so that he
could "see [her] nakedness." Id. at 10.
caption of her complaint, Plaintiff has named six defendants:
Jennifer Cooper ("Cooper"), the Raleigh Police
Department, the State of North Carolina, the City of Raleigh,
Officer C.E. Warren, and Wake Med Faculty
Physicians. However, her application to proceed in
forma pauperis, the civil cover sheet, and the proposed
summonses only list the City of Raleigh as a defendant.
[DE-1, 1-2, 1-3, 1-4, 1-5].
Claims of Employment Discrimination
complaint consists of a court-issued fill-in-the-blank form
intended to address claims of employment discrimination.
Compl. [DE-1-1]. For example, in paragraph 3, Plaintiff
alleges, "[t]his action is brought pursuant to Title VII
of the Civil Rights Act of 1964 for employment
discrimination." Id. at 2. At paragraph five,
Plaintiff has checked the box indicating she is "not
presently employed by the defendant," and has provided
"N/A" in the space left blank for the dates of her
employment, as well as the three alleged bases of her
termination. Id. at 3. Further, at paragraph eleven,
the form states the following: "I filed charges with the
Equal Employment Opportunity Commissioner regarding
defendant(s) alleged discriminatory conduct on or about"
followed by a space for Plaintiff to provide the date she
filed her discrimination charge with the EEOC. Rather than
provide such date, Plaintiff has indicated "N/A."
Plaintiff responds the same when prompted to attach a copy of
the Notice of Right to Sue letter issued by the EEOC and when
she received the letter. Id. at 6. Reading her
complaint liberally, Plaintiff appears to identify the bases
of her employment discrimination as: disability, national
origin, race, religion, sex, perceived disability, color,
marital status and poverty. Compl. [DE-1 -1 ] at 2-3.
VII makes it "an unlawful employment practice for an
employer ... to discharge any individual, or otherwise to
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). The
Americans with Disabilities Act ("ADA") broadly
protects the employment rights of the disabled. 42 U.S.C.
§ 12112(a). Before a plaintiff may file a suit under
either Title VII or the ADA, she is required to exhaust her
administrative remedies by filing a charge of discrimination
with the EEOC. Sydnor v. Fairfax Cty., Va., 681 F.3d
591, 593 (4th Cir. ...