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Remington v. Dipierro

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

July 31, 2018

MARIA S. REMINGTON, Plaintiff,
v.
JOSEPH V. DIPIERRO, Defendant.

          ORDER

          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on the Memorandum and Recommendation (“M&R”) of United States Magistrate Judge Robert T. Numbers, II, regarding plaintiff's motion to proceed in forma pauperis (“IFP”). (DE # 18.) Also before the court is plaintiff's motion to amend complaint and objections to the M&R. (DE # 21.)

         I. FACTS

         Plaintiff's application to proceed IFP was filed in this matter on 24 July 2017. (DE # 1.) By order dated 24 October 2017, Judge Numbers instructed plaintiff that if she wanted the court to consider her IFP application and amended complaint, she must refile those documents publicly within seven days. (DE # 15.) Alternatively, plaintiff was directed to remit the $400.00 filing and administrative fee along with her amended complaint. (Id. at 1-2.) Following the expiration of the seven-day period, Judge Numbers filed a M&R that recommended the court deny plaintiff's application to proceed IFP and dismiss the action. (DE # 18.) Judge Numbers based his recommendation on plaintiff's failure to submit a properly executed application or to pay the required filing fee, as well as plaintiff's failure to comply with the court's earlier order. (Id. at 1-2.) After Judge Numbers issued the M&R, plaintiff refiled her application to proceed IFP on 28 November 2017. (DE # 19.) Plaintiff filed her objections to the M&R and motion to amend her complaint 12 December 2017. (DE # 21.)

         II. ANALYSIS

         A. Motion to Amend

         Federal Rule of Civil Procedure 15(a) provides that a party may amend her pleading once as a matter of course within 21 days of service, or “if the pleading is one to which a responsive pleading is required, 21 days after service of the responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Otherwise, a party may amend the pleading only by leave of court. Fed.R.Civ.P. 15(a). Plaintiff's complaint has not yet been served and, therefore, plaintiff may amend her complaint as a matter of right. Therefore, plaintiff's proposed amended complaint supersedes and replaces the original complaint. See Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir.2001) (stating the general rule “that an amended pleading supersedes the original pleading, rendering the original pleading of no effect”).

         B. Motion to Proceed IFP

         In her objections to the M&R, plaintiff explains that she experienced difficulty complying with Judge Numbers' 24 October 2017 order because she did not receive a copy of the order from the Clerk's Office in sufficient time for her to file a corrected application to proceed IFP. (DE # 21, at 7.) Because plaintiff is proceeding pro se and has refiled her application to proceed IFP, the court will consider her application. The information in plaintiff's application demonstrates sufficient evidence of her inability to pay the required court costs. Accordingly, the court will grant plaintiff IFP status.

         After allowing a party to proceed IFP, the court must conduct a review in accordance with 28 U.S.C. § 1915(e)(2). The court must determine whether the action is frivolous or malicious or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B); see Michau v. Charleston Cty., S.C., 434 F.3d 725, 728 (4th Cir. 2006) (standard for frivolousness). In making this determination, pro se complaints are entitled to more liberal treatment than pleadings drafted by attorneys. See White v. White, 886 F.2d 721, 724 (4th Cir. 1989). However, the court is not required to accept a pro se plaintiff's contentions as true and may dismiss claims that are based on wholly irrational or incredible factual allegations. See Denton v. Hernandez, 504 U.S. 25, 33 (1992).

         A complaint fails to state a claim if it does not “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 Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim has been stated, “[the] court accepts all well-pled facts as true and construes those facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, ... bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         Plaintiff's amended complaint asserts claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1988 against defendant Joseph V. Dipierro in both his personal and official capacities. (Am. Compl., DE # 21-1, at 1.) These claims arise from plaintiff's enrollment as an undergraduate at the University of North Carolina at Chapel Hill (“UNC”), where she claims campus police engaged in a pattern of racial harassment against her and manipulated the issuance of criminal charges for trespassing against her. (Id. ¶¶ 7, 23-24.) Plaintiff claims that defendant “led her to believe” that he would provide her with legal representation in the criminal trespass case. (Id. ¶ 6.) She seeks recourse against defendant for his failure to provide her with adequate legal representation, specifically his failures to appear at her court hearing in the criminal case and to file an appeal on her behalf. (Id. ¶¶ 12, 22, 25-26, 32.)

         1. 42 U.S.C. § 1981 Claim

         Section 1981 “protects the equal rights of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. 1981(a)). This section provides that “the term ‘make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. 1981(b). To state a § 1981 claim, a plaintiff must allege that: (1) she belongs to a racial minority group; (2) defendant intended to discriminate against plaintiff on the basis ...


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