United States District Court, E.D. North Carolina, Southern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
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.
ON IN FORMA PAUPERIS MOTION
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.
AND RECOMMENDATION ON FRIVOLITY REVIEW
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").
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)).
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.
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.
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
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.
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. Compl. Form 3.