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Swanson v. Smith

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

September 30, 2019

Gary Swanson, Plaintiff,
v.
Sid Smith, Defendant.

          ORDER & MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gary Swanson alleges that his former employer, Defendant Sid Smith, discriminated against him because of his status as a military veteran. Compl. ¶ 4, 6, D.E. 1-1. Swanson seeks to proceed without paying court costs because he is financially unable to do so. Mot. for Leave to Proceed In Forma Pauperis, D.E. 1. Because Swanson lacks the personal resources to bring his claim, the court grants his motion to proceed in forma pauperis. But Swanson's complaint and attached letter do not provide any factual support for his claim and Swanson failed to file, as directed by the court, an amended complaint with more facts. Thus the undersigned recommends the district court dismiss this action without prejudice for failure to state a claim and failure to comply with a court order.

         I. Background

         Swanson alleges that Sid Smith of Carolina Fresh Water, LLC discriminated against him based on his status as a military veteran by failing to promote him and by terminating him. Compl. ¶ 4, 6-7. Swanson worked at Carolina Fresh Water from October 2018 to July 2019, when Carolina Fresh Water fired Swanson. Id. at ¶ 5. Swanson claims that Smith promised to promote him to an open staff position as a “Licensed P1 Plumber.” Letter to Employer at 2, D.E. 1-2. During a phone call, Swanson says Smith told him that he planned to offer Swanson the open position with the same salary as the former staff member, which Swanson knew to be around $100, 000 per year. Id. When Swanson requested a $1, 350 per week salary, less than that paid to the former employee, Smith offered Swanson a salary of $200 per week, causing Swanson to feel “extremely upset and insulted.” Id.

         Smith told Swanson that “everything was going to be done ‘in house, '” meaning he planned to hire an employee. Under IRS guidelines Swanson claims his work for Carolina Fresh Water made him an employee and not an independent contractor. Letter to Employer at 1. Swanson used his own tools and transportation to perform work for Carolina Fresh Water, was on call 24/7 for emergency service, held corporate credit cards, and has unrealized losses for personal fuel and transportation expenses, medical expenses, tools, wages, and taxes-all evidence of behavioral and financial control suggesting work as an employee. Id.

         Instead, Smith awarded the open position to “H3-1 Licensed contractor” James Istre, whom Swanson also names in his complaint. Id. at 2; Compl. ¶ 7. Swanson claims Istre is less experienced in plumbing systems than Swanson. Letter to Employer at 2. Swanson asserts Istre's hiring and training caused him pain, suffering, and depression. Id.

         Swanson also alleges that Carolina Fresh Water misused state plumbing licenses and makes a cursory allegation of age discrimination. See id. at 1-2. Swanson filed charges with the Equal Employment Opportunity Commission about a month and a half before filing this complaint, but those charges remain “in process.” Compl. ¶ 11.

         II. Analysis

         A. Application to Proceed in District Court without Prepaying Fees or Costs

         Swanson asks the court to allow him to proceed with his action without paying the required filing fee and other costs associated with litigation, known as proceeding in forma pauperis or IFP. The court may grant his request if he submits an affidavit describing his assets and the court finds that he could not pay the filing fee. 28 U.S.C. § 1915. In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation “and still be able to provide himself and his dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted).

         The court has reviewed Swanson's application and finds that he lacks the resources to pay the costs associated with this litigation. The court thus grants Swanson's motion (D.E. 1) and allows him to proceed IFP.

         B. Screening under 28 U.S.C. § 1915

         Along with determining whether Swanson is entitled to IFP status, the court must analyze the viability of the claims in his complaint. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate those claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from that relief. Id. § 1915(e)(2)(B).

         A complaint fails to state a claim upon which relief may be granted 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). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Swanson's pro se status relaxes, but does not eliminate, the requirement that his complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's ...


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