United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of the
Amended Complaint, (Doc. No. 5). Plaintiff is proceeding
in forma pauperis. (Doc. No. 3).
se Plaintiff purports to file suit under 42 U.S.C.
§ 1983. He names as Defendant Hardee's Restaurant
a/k/a Morning Star LLC. The Complaint was dismissed on
initial review as frivolous and for failure to state a claim
upon which relief can be granted. (Doc. Nos. 1, 3). Plaintiff
has filed an Amended Complaint which is now before the Court
on initial review. (Doc. No. 5).
Amended Complaint's Nature of Case section states
verbatim “That I was not protected form Hep A
got vaccination right shoulder, injury related to vaccine.
That lead to thyroid abnormalities in liver. The gallbladder
is also medication.” (Doc. No. 5 at 2).
Cause of Action is verbatim: (1) “Excluding
from class action law suit. With regards to the extent of
harm suffered by the shot defendant's proposes is not
fair reasonable/and/or adequate;” and (2)
“Adequate compensation for personal injured. Defendant
value of the case assuming the lowest where I suffer an
injury due to the defendant that this type of damage does not
go away.” (Doc. No. 5 at 3).
states his injury as follows verbatim:
“Emotional distress suffered by defendant's. now
with other pain here come long term consequences. Shoulder
pain impairment lasting the life time. The accident aggravate
my pre existing medical condition. (The psychological problem
in the pass. Has no power over God help for us.).”
(Doc. No. 5 at 3).
request for relief is, verbatim “There is good evidence
that the cost of medication. That in the hospital cost. IRS
cost. 250, 00 or unclosed.” (Doc. No. 5 at 5).
has attached to his Amended Complaint a handwritten document
labeled “Exhibit D” which addresses an incident
at a Hardee's restaurant where his order was wrong, a
police report about the incorrect order, and a CaroMont
Health form addressing Plaintiff's vaccination history.
(Doc. No. 5 at 6-11).
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).