United States District Court, W.D. North Carolina, Charlotte Division
TOMMY E. MARTIN, Plaintiff,
MORNING STAR, LLC, Defendant.
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of the
Complaint, (Doc. No. 1), and Plaintiff's Application to
Proceed in District Court Without Prepaying Fees or Costs,
(Doc. No. 2).
se Plaintiff purports to file suit under 42 U.S.C.
§ 1985. He names as the sole Defendant Morning Star,
LLC, doing business as Hardee's Restaurant.
Complaint's Nature of Case section states,
verbatim: “Had got an infection with Chronic
left arm pain, was put on antibiotic. Due to exposure of the
Hepatitis shot. I am one of the few people suffer more than
others.” (Doc. No. 1 at 2). The Complaint's
“Cause of Action” and “Injury”
sections contain no allegations. (Doc. No. 1 at 3). As his
Request for Relief, Plaintiff states “250, 000 or
unclosed [sic] amount” (Doc. No. 1 at 5).
MOTION TO PROCEED IN FORMA PAUPERIS
Court first addresses Plaintiff's motion to proceed
in forma pauperis. Plaintiff's affidavit shows
that he has $2, 501.70 in monthly income, comprised of $52 in
interest, $1, 045.70 in disability benefits, and $1, 404 in
social security. (Doc. No. 2 at 2-3). His assets include a
home worth $170, 000, two cars worth a total of $22, 000, and
a trailer. (Id. at 3). Plaintiff has two minor
children who rely on him for support. (Id.). His
monthly expenses appear to total $2, 712,  including $116
for utilities, $800 for food, and $333 for transportation.
(Doc. No. 2 at 4). He does not expect any major changes to
his monthly expenses, assets, or liabilities in the next
year. (Id. at 5). The Court is satisfied that
Plaintiff does not have sufficient funds to pay the filing
fee. The Court will, therefore, allow the motion and permit
Plaintiff to proceed in forma pauperis.
STANDARD OF REVIEW
Plaintiff is proceeding in forma pauperis, the Court
must review the Complaint to determine whether it is subject
to dismissal on the grounds that it is “frivolous or
malicious; fails to state a claim on which relief may be
granted; or seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(i)-(iii). The Court must determine whether the
Complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989).
8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007). The statement of the
claim does not require specific facts; instead, it
“need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.' ” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However,
the statement must assert more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555.
pro se complaint must be construed liberally.
See Haines v. Kerner, 404 U.S. 519, 520 (1972);
see also Smith v. Smith, 589 F.3d 736, 738
(4th Cir. 2009) (“Liberal construction of
the pleadings is particularly appropriate where …
there is a pro se complaint raising civil rights
issues.”). However, the liberal construction
requirement will not permit a district court to ignore a
clear failure to allege facts in the complaint which set
forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990).
Complaint is too vague and conclusory to pass initial review.
Plaintiff fails to explain his relationship with Defendant or
describe the alleged incident in enough detail to satisfy
Rule 8. His bare reference to 42 U.S.C. § 1985 is
insufficient to state a claim; he has failed to set forth a
short and plain statement describing each of the
Defendant's alleged actions and explaining how each of
these Defendants has violated his rights under the color of
state law. Indeed, the allegations are so severely deficient
that the Court cannot conclude at this juncture that it has
subject-matter jurisdiction over this action. The Complaint
is frivolous and fails to state a claim upon which relief can
be granted and will, therefore, be dismissed without
shall have fourteen (14) days in which to
file an Amended Complaint in which he may attempt to cure
these deficiencies. Although Petitioner is appearing pro
se, he is required to comply with all applicable
timeliness and procedural requirements including the Local
Rules of the United States District Court for the Western
District of North Carolina and the Federal Rules of Civil
Procedure. The Amended Complaint must be on a civil complaint
form, which the Court will provide, and it must refer to the
instant case number so that it is docketed in the correct
case. It must contain a “short and plain statement of
the claim” showing that Plaintiff is entitled to relief
against each defendant. Fed.R.Civ.P. 8(a)(2). The Amended
Complaint must contain all claims Plaintiff intends to bring
in this action, identify all defendants he intends to sue,
and clearly set forth the factual allegations against each of
them, and state a basis for the Court's subject-matter
jurisdiction. Plaintiff may not amend his Complaint by merely
adding defendants and claims in a piecemeal fashion. The
Amended Complaint will supersede the ...