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Bland v. Booth

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

May 3, 2019

SHAMUS BLAND, Plaintiff,
v.
LARRY BOOTH, Defendant.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          Jamas E. Gates United States Magistrate Judge

         This pro se employment discrimination case is before the court on the application to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) (D.E. 1) by plaintiff Shamus Bland ("plaintiff) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. See D.E. dated 28 Mar. 2019.

         ORDER ON IN FORMA PAUPERIS MOTION

         The court finds that plaintiff has adequately demonstrated his inability to prepay the required court costs. His motion to proceed in forma pauperis is therefore ALLOWED.

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). See Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). Based on this review and for the reasons stated below, it will be recommended that plaintiffs claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") be dismissed and the case proceed on the remaining claim encompassed by plaintiffs allegations, violation of 42 U.S.C. § 1981 ("§ 1981").

         1. BACKGROUND

         Plaintiff commenced this action on 27 March 2019. His proposed complaint consists, collectively, of a completed generic complaint form (Compl. Form (D.E. 1-1)) supplemented by a completed Title VII complaint form (Supp. Form (D.E. 1-2)).

         In his complaint, plaintiff alleges as follows: Plaintiff was employed as a cook at Mavericks Pointe Restaurant in Sunset Beach, North Carolina for a period of less than eight weeks ending in August 2018. Compl. Form 2, 3; Supp. Form 4 ¶¶ 8, 11. The owner of the restaurant and plaintiffs employer was defendant Larry Booth ("defendant"). Comp. Form 1, 2; Supp. Form 3 ¶ 7; 4 ¶ 9. Approximately eight employees worked at the restaurant. Supp. Form 2 ¶ 2.[1]

         While walking to his car from the back of the restaurant one day after work, plaintiff was approached by a white customer of the restaurant who, using a racial slur, told him that she did not want someone of his race cooking her food and that she planned to speak to defendant about it. Compl. Form 2; Supp. Form 4 ¶ 9.1. The next day, defendant's son instructed plaintiff not to go in the lobby area of the restaurant for any reason and, if plaintiff needed anything, to have defendant's son or a waitress obtain it for him. Compl. Form 2. Defendant also told plaintiff that when plaintiffs family came to pick him up at work, they could not sit outside the restaurant to wait for him and that plaintiff needed to clock out immediately upon his family's arrival, even if before his regular "end time." Id. at 2; Supp. Form 4 ¶ 9.4.

         Defendant later told plaintiff of his concern that plaintiff was using drugs at the restaurant and that he had to terminate plaintiffs employment, even though plaintiff informed defendant that he did not use drugs and had a baby on the way he needed to financially support. Compl. Form 2; Supp. Form 4 ¶ 9.2. At some point, defendant also falsely accused plaintiff of selling drugs at the restaurant. Supp. Form 4 ¶ 9.2.

         When defendant was asked about plaintiffs termination later by a local leader of the NAACP, defendant said that he had to let plaintiff go because he needed to borrow money and could not afford to lose a customer. Compl. Form 2. Following his termination, plaintiff called to ask defendant's son about obtaining his tax form and was told not to call there anymore. Id. at 2-3. As of 12 February 2019, plaintiff had not received his tax forms. Id. at 3.

         Plaintiff contends that his termination was discriminatory because it was based upon his race. Supp. Form 3 ¶ 6(A). The pre-printed supplement states that "[t]his action is brought pursuant to Title VII of the Civil Rights Act of 1964 for employment discrimination." Id. at 2 ¶ 3. Plaintiff seeks over $2 million in damages.[2] Compl. Form 3.

         II. APPLICABLE ...


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