Gray v. Brent et al

Filing 25

ORDER granting 1 Motion to proceeding in forma pauperis, denying 4 Motion for delay and continuance, denying 4 Motion to consolidate cases, denying 4 Motion to reassign case, denying as moot 4 Motion to correct civil cover sheet to reflect jury demand, denying 9 Motion to delay scheduling of case, denying 9 Motion for Reconsideration, denying 9 Motion for Extension of Time, denying as moot 21 Motion in Limine, denying 22 Motion to Consolidate Cases and adopting [ 6] Memorandum and Recommendations. Plaintiff's complaint is DISMISSED pursuant to 28 U.S.C. § 1951(e)(2). The Clerk is directed to close the case. Copy of order to plaintiff via US Mail at address on record. Signed by Senior Judge W. Earl Britt on 4/2/2014. (Marsh, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-198-BR
ELLA LOUISE GRAY,
Plaintiff,
v.
LISA BRENT, Manager, Wingate Hotel,
and, OWNER & CEO OF WINGATE
HOTEL,
Defendants.

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ORDER

This matter is before the court on the 8 November 2013 Memorandum and
Recommendation (“M&R”) (DE # 6) of Magistrate Judge Robert B. Jones, Jr. regarding the
application filed by pro se plaintiff Ella Louise Gray (“plaintiff”) to proceed in forma pauperis
(DE # 1) and for frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). The magistrate judge
recommends that plaintiff’s application to proceed in forma pauperis be granted and that the
complaint be dismissed for failure to state a claim upon which relief can be granted. Plaintiff
filed an objection to the M&R and an accompanying exhibit on 22 November 2013. (DE ## 7,
7-1.) She subsequently filed additional exhibits to her objection on 27 November 2013. (DE ##
8, 8-1, 8-2, 8-3, 8-4, 8-5, 8-6.) Plaintiff has also filed several other motions in this matter that
were not ruled on by the magistrate judge. (DE ## 4, 9, 21, 22.)
The court first addresses plaintiff’s request that the undersigned recuse himself from this
case. (Mot., DE # 4, at 4.)1 A judge must “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The intent of section 455(a)

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Page citations are to the numbers generated by CM/ECF.

is to reduce perceived appearances problems; that is, situations in which the judge is not in fact
biased, but an outside observer might nonetheless have some reasonable basis for questioning the
judge’s impartiality.” United States v. Morris, 988 F.2d 1335, 1337 (4th Cir. 1993). As the
United States Supreme Court has articulated, the alleged bias must derive from “an extrajudicial
source.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). In other words, “the source
of the appearance of partiality must arise from some source other than the judge’s previous
involvement with cases that concerned the parties or witnesses in the present case.” Morris, 988
F.2d at 1337; see also Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.”); United States v.
Carmichael, 726 F.2d 158, 160 (4th Cir. 1984).
Here, plaintiff’s request is based on the fact that the undersigned ruled against her in
another case, Gray v. Wal-Mart Stores, Inc., No. 7:10-CV-171-BR (E.D.N.C.), and that her
current claims allegedly relate to the claims raised in that prior lawsuit. Plaintiff identifies no
personal or extrajudicial bias on the part of the undersigned but relies exclusively on the
dismissal of the claims in her former case. As such, the alleged bias is not from an extrajudicial
source and therefore cannot support a motion under 28 U.S.C. § 455(a). Although plaintiff
contends that there “appears to be a conflict of interest” (Mot., DE # 4, at 4 (emphasis omitted)),
the court’s impartiality in this matter cannot reasonably be questioned, and plaintiff’s motion for
recusal will be denied.
Next, the court addresses plaintiff’s motions for consolidation. (Mot., DE # 4, at 3; Mot.,
DE # 22.) In reviewing these motions, it appears that plaintiff has filed charges of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) in addition to the one that she

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filed in relation to the instant lawsuit. She is waiting for the EEOC to complete its investigation
of those charges. (Mot., DE # 4, at 3.) Plaintiff asks that her other EEOC charges be
consolidated with the current case. Because no lawsuits have been filed with respect to these
other claims, the court finds that plaintiff’s motions to consolidate are premature. Furthermore,
the court cannot identify the full scope of the allegations of discrimination that are being made
by plaintiff in the other EEOC charges. As a result, the motions for consolidation will be denied.
Plaintiff has also filed motions requesting a “delay” or “continuance” of this case. (Mot.
DE # 4, at 2-3; Mot., DE # 9.) She essentially wishes to stay the case in its entirety so that she
can amend her pleadings, add additional parties, and find an attorney to represent her. (Id.) The
court notes that plaintiff filed this action over six months ago and has had sufficient time to find
counsel. Moreover, plaintiff fails to specify a length of time for the delay or continuance.
Because indefinite stays are disfavored, plaintiff’s motions will be denied. See Landis v. N. Am.
Co., 299 U.S. 248, 257 (1936) (A court must not order a stay that would “continue by its terms
for an immoderate stretch of time . . . .”).
In addition, plaintiff has filed a motion for reconsideration (Mot., DE # 9) of the
magistrate judge’s order denying her request for the appointment of counsel (M&R, DE # 6, at
9). There is no constitutional right to counsel in civil cases absent “exceptional circumstances.”
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds, Mallard v.
U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989); see also Cook v. Bounds, 518
F.2d 779, 780 (4th Cir. 1975). Notwithstanding plaintiff’s contentions to the contrary, this case
does not present exceptional circumstances that justify the appointment of counsel. Therefore,
plaintiff’s motion for reconsideration will be denied.

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The court now turns to the substance of plaintiff’s claims. Where a plaintiff has
requested leave to proceed in forma pauperis, the court must conduct a review of the plaintiff’s
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Under this statute, a district court must
dismiss all or any part of an action found to be frivolous or malicious, which fails to state a claim
upon which relief can be granted, or which seeks money damages from a defendant immune
from such recovery. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Michau v. Charleston Cnty., S.C.,
434 F.3d 725, 728 (4th Cir. 2006); Cochran v. Morris, 73 F.3d 1310, 1315-16 (4th Cir. 1996)
(discussing sua sponte dismissal under predecessor statute 28 U.S.C. § 1915(d)). In evaluating a
case under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, a court may appropriately
look to cases decided under Federal Rule of Civil Procedure 12(b)(6) for guidance. See
De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (review standard for dismissals under
Rule 12(b)(6) applies to dismissals for failure to state claim under 28 U.S.C. §
1915(e)(2)(B)(ii)); Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (relying on standards
set out in Rule 12(b)(6) cases in applying failure to state claim provision in 28 U.S.C. §
1915(e)(2)(B)(ii)).
In this case, the magistrate judge recommends that plaintiff’s application to proceed in
forma pauperis be granted and that the complaint be dismissed for failure to state a claim upon
which relief can be granted. The district court reviews de novo only those portions of a
magistrate judge’s M&R to which specific objections are filed. See 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); Local Civil Rule 72.4(b). The court does not perform a de novo review
where a party makes only “general and conclusory objections that do not direct the court to a
specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,

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687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews
only for “clear error.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (citation and internal quotation marks omitted). Upon careful review of the record, “the
court may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Plaintiff identifies the defendants to this lawsuit as being an individual named Lisa Brent
(“Brent”), the alleged manager of the Wingate Hotel (“Hotel”), located in Wilmington, North
Carolina, and another individual, the unnamed CEO and owner of the Hotel2 (collectively
“defendants”). (Compl., DE # 1-1, ¶ 2.) Plaintiff alleges that defendants discriminated against
her by failing to employ her. (Id. ¶¶ 3-4, 6.) In a letter attached to the complaint, plaintiff states
that “[t]he discrimination is specifically related to Title VII of the Civil Rights Act, the
Americans with Disability [sic] Act (ADA), Genetic Information Nondiscrimination Act
(GINA), or [the] [A]ge Discrimination in [E]mployment Act (ADEA).” (Letter, DE # 1-2, at 3.)
Here, plaintiff has filed a lengthy objection to the M&R and has also filed multiple
accompanying exhibits. (Obj., DE ## 7, 7-1, 8, 8-1, 8-2, 8-3, 8-4, 8-5, 8-6.) The “objection”
consists largely of an elaboration of plaintiff’s claims. Upon review of the documents, the court
was able to identify only one specific factual error that was allegedly committed by the
magistrate judge. Plaintiff maintains that the magistrate judge’s assertion that “plaintiff never
identified her race in the complaint is untrue. The plaintiff checked her race as being black and
African American on the complaint sheet filed with the federal courts.” (Obj., DE # 7, at 17.)
However, even if plaintiff had identified her race in the complaint, the court agrees with the
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Plaintiff notes that the owner of the Hotel is unnamed because the “manager refused [to] give name of
owner of hotel.” (Compl., DE # 1-1, at 1.)

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magistrate judge that plaintiff “offers no assertions or evidence that her race has anything to do
with her claims.” (M&R, DE # 6, at 7.) Nothing in plaintiff’s objection or the accompanying
exhibits provides any basis for altering this conclusion. As a result, plaintiff’s argument is
without merit.
Furthermore, the magistrate judge has pointed out that plaintiff has only named
individuals as defendants in her complaint. (M&R, DE # 6, at 6.) In her objection to the M&R
and the exhibits thereto, plaintiff does not name any additional defendants to this action, nor
does she specifically dispute the magistrate judge’s construction of her complaint as naming the
defendants in their individual capacities. As the magistrate judge properly recognized (id.), it is
well-settled that Title VII, the ADA, and the ADEA “do not provide for causes of action against
defendants in their individual capacities.” Jones v. Sternheimer, 387 F. App’x 366, 368 (4th Cir.
2010) (per curiam) (unpublished); see also Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180-81
(4th Cir. 1998) (recognizing that supervisors are not liable in their individual capacities for Title
VII violations because an individual supervisor is not the plaintiff’s “employer” as defined in
Title VII); Darden v. Cumberland Cmty. Action Program, Inc., No. 5:13-CV-311-F, 2013 WL
5494080, at *2 (E.D.N.C. Oct. 2, 2013) (holding that individually-named CEO is not an
employer as defined in Title VII and ADEA); Ward v. Coastal Carolina Health Care, P.A., 597
F. Supp. 2d 567, 570 (E.D.N.C. 2009) (“[I]ndividual employees of corporate entities . . . are not
liable in their individual capacities for Title VII violations because such individuals are not
‘employers’ under Title VII.”). Similarly, the “GINA does not provide for individual liability
due to its incorporation of the Title VII definition of ‘employer.’” Wright v. StoneMor Partners
LLP, No. 3:12-cv-380, 2012 WL 4006120, at *2 (W.D.N.C. Sept. 12, 2012). Because plaintiff

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cannot maintain any of her claims against the individually-named defendants, the complaint must
be dismissed. The court notes that it also agrees with the magistrate judge that plaintiff has
failed to allege sufficient facts to support several of her claims.
For the foregoing reasons, plaintiff’s Motion for Delay and Continuance, Motion to
Consolidate Cases, and Motion to Reassign Case (DE # 4) are DENIED. Plaintiff’s Motion to
Delay Scheduling of Case, Motion for Reconsideration regarding Court Appointment of
Counsel, and Motion for Extension of Time to Seek Private Counsel (DE # 9) are DENIED. The
motion to Review and Consolidate Cases (DE # 22) is also DENIED. The court ADOPTS as its
own the findings and recommendations of the magistrate judge (DE # 6). Plaintiff’s application
to proceed in forma pauperis is GRANTED, and plaintiff’s complaint is DISMISSED pursuant
to 28 U.S.C. § 1915(e)(2). Plaintiff’s Motion to Correct Civil Cover Sheet to Reflect Jury
Demand (DE # 4) and Motion in Limine (DE # 21) are DENIED AS MOOT. The Clerk is
DIRECTED to close the case.
This 2 April 2014.

__________________________________
W. Earl Britt
Senior U.S. District Judge

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