TAY v. U.S. DEPARTMENT OF EDUCATION et al

Filing 30

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/21/2014 as set out herein. RECOMMENDED that Plaintiff's Motion to amend the Complaint (Docket Entry 8 ) be DENIED, and Plaintiff's complaint be DISMISSED for being frivolous and for failure to state a claim on which relief may be granted under 28 U.S.C. § 191S(e)(2)(B). In light of the undersigned's recommendation for dismissal, IT IS THEREFORE ORDERED that Defendant Microsoft Corporation's consent motion for an extension of time to answer (Docket Entry 9 ) is DENIED as MOOT.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TAY d/b/a DONTAVIOUS

S.

SMITH,

)
)

Plaintiff,

)
)
)
)

V

1,:1,4CY468

U.S. DEPARTMENT OF EDUCATION, et al., )
)
Defendants.
)

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This mattet is before the Court on Plaintiffs motion to amend the Complaint (Docket

E.rtty 8) and a consent motion for an extension of time to file an Answer by Defendant
Microsoft Cotpotation. Q)ocket Entry
status based upon his inabiliry

Entry

4.)

ß

9.)

On June 17, 201,4, Plaintiff was granted IFP

p^y fees ot costs associated with this action.

(See

Docket

The undetsigned will now conduct a ftivolity teview pursuant to 28 U.S.C.

$t9t5(e)(2)(B). After review of Plaintiffs odginal and amended Complaint, this Cout
recommends that Plaintiffls motion to amend the Complaint be denied, and this action be
dismissed.l

I. BACKGROUND
Plaintiff alleges that Defendants falsified a drug test which Piaintiff took as pa:t of
employment procedures to become a substitute teacher
generalþ Compl.,

Docket E.rt"y 2;

see also

in Btevatd County, F'lorida. (See

Am. Compl., Docket Entry

8-1.) Plaintiff alleges

i Because the Court recommends dismissal of this action as fiivolous, the court will deny Defendant
Mictosoft Corporation's consent motion as moo
.

that Defendants conspired and entered into a scheme to keep Plaintiff
permanently deprive him
Racketeet Influenced and
alleges

in povetty and

of "his pursuit to his ,{medcan Dream," in violation of the

Corupt Organizations Act ("RICO"). (Id. at 2.) Plaintiff further

that "[t]he Defendants Scheme and RICO Enterpdse acted to unlawfully

and

unreasonably detain [Plaintiff] against his will . . . and harbor him on food stamps with no
residual income to invest in his business endeavots, putchase a vehicle for ttavel, a personal

home fot adequate living . . .

."

(Id at 22.) Plaintiff asserts a \ttany of federal and state law

claims, and seeks damages including "Fat Boy Relìef," "living, transportation and marijuana
healthcare," "la] custom 2014 Rolls Royce Wraith," "Nationwide legal medicinal marljuana
ììcense," "[a] $3,650 gas catd voucher," "la]'365 !Øord Deeply Rooted Apology', 365 wotds,
10 wotd sentences, 5 paragraphs, 12 size font, double spaced,

in Times New Roman font

lettet of apology ftom each RICO Defendant's CEO, Ptesident and ot Executive Officet or
Chakman,"

^nd

personal economic and non-economic damages. (Id. at 28-29.)

amended Complaint, Plaintiff seeks
generalþ

II.

In

to add additional paties and claims for telief.

his
(See

-{m. Compl., Docket Entry 8-1.)

STANDARD OF' RE,VIE,ìø
The Court is tequired to dismiss frivolous or malicious claims, and any complaint that

fails to state a claim for upon which relief can be gtanted. 28 U.S.C. $ 1915(e)(2)@); Michaa
u,. Charleston Cnt1.,5.C.,434tr.3d725,728

appropriate when

(4thCir.2006). "Dismissal of an action...

it lacks an arguable basis in law or fact."

Jones u. Sternheimer,3ST

is

F. App'"

366,368 (4th Cir. 201,0). A ftivolous complaint "lacks an atgtable basis in eithet law ot in

fact."

Neitq/<e u.

lY/illiam¡,490 U.S. 31,9,325 (1989);

2

¡ee

al:o Nagy u. Federal Med. Ctr. Batner,

376 F3d 252,256-57

(4th Cn. 2004) ("The wotd 'ftivolous' is inherently

susceptible to categorical

definition. . The term's capaciousness

elastic and not

ditects lower courts to

conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing
upon the frivolity of a claim." (some internal quotation matks omitted)).
Alternatively, a complaintthatdoes not "contain sufficient factualmatter, accepted
true, to 'state a claim to telief that is plausible on its f^ce"' must be dismissed. A:hnoft

as

u.

Iqbal, 556 U.S. 662, 678 Q009) (quoting Bell Atlantic u. Twombþ, 550 U.S. 544, 570 (2007)).

"A claim has fact.al plausibility when the plaintrff pleads

fact:ttal content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct." Id. The
"court accepts all well-pled facts as true and consttues these facts in the light most favorable

to the plaintiff in weighing the legal suffìciency of the complaint," but does not consider
"legal conclusions, elements of a cause of

enhancement[]

action,

bate assertìons devoid

unwarranted infetences, unreasonable conclusions,

Nemet Cheurolet, Ltd. u. Consamerffiirlclq 1ftc.,591 tr.3d 250, 255 (4th

ot

of factual

atguments."

Cit. 2009) (citations

omitted). In other wotds, the standard requires a plaintiff to atticulate facts, that, when
accepted as true) demonstrate the plaintiff has stated a claim that makes

it

plausible he is

entitled to relief. Frantis u. Gianmelli,5SS F.3d 1,86, 1,93 (4th Cir. 2009) (quoting lqbal, 556
U.S. at 678, and Twombþ,550 U.S. at 557). Pro

se

complaints are to be construed liberally and

"must be held to less stringent standards than formal pleadings drafted by lawyers."
u.

Pardøs,551 U.S. 89,94 Q007) (internal quotation omitted).

J

Eiricþ.son

III.

DISCUSSION

Plaintiff is no stranget

to the fedetal courts,

particularly the Middle Disttict of

Flodda, relating to Btevatd County School Board's refusal to hite Plaintiff as a result of
drug test.

See

Smith

a/k/ a Ta1 u. State of Fla., et

al.,

a

No. 6:12-cv-00439-CEH-I3S (À4.D. Fla.

Aug. 7, 201,2) (dismissing complaint and enjoining Plaintiff ftom filing future lawsuits atising

from facts in ptevious telated
2033-G'\P-KRS, 2010

ìfL

cases); Smith u, Scl¡. Bd. of Breuard

1385866,

Cnfl,, et al., No. 6:09-cv-

at *3 (À4.D. Fla. ,\pt. 1,

201,0) (dismissing wrth

prejudice as "utter nonsense"); Snith u. Sch. Bd. of Breuard Cnfl., No. 6:11,-cv-73L-GAP-KRS
G\,f.D. Fla. May 25,201,1) (dismissing complaint
al.,

with ptejudice);

see

also Smitlt u. State of

Fla., et

No 6:1,2-cv-1385-ORL-22,201.2WL6645022,at*1 (i\4.D.Fla. Dec. 20,2072) (dismissing

complaint with prejudice and ordering cletk "not to accept any funhet pleadings, motions,
or other documents ftom Plaintiff in this case.") In addition, Plaintiff recently filed a lawsuit
substantially similat to the present case with many

District of New
36951.93,

Yotk.

See

Smith u. Dash,

et

of the same Defendants in the Eastern

aI.,

No. 1:14-cr-4047-ARR-LB,

201,4 WL

at *1 (E.D.N.Y. July 22, 2014). United States District Judge Allyne R.

Ross

dismissed the complaint as frivolous, and stated that "[t]he court will not allow plaintiff to

circumvent the Middle fDistrict of Florida's] filing injunction by allowing this complaint to
proceed

here."

Qd. at

*2.) In yet anothet

attempt, Plaintiff has now filed in this Court an

array of claims and violations that arc again cleady frivolous and "lacks an arguable basis in

law

ot fact."

Sternheimer,3ST F.

(1992) ("[A] finding

of facttal

App'r at 368; see also Denton a. HemandeT, 504 U.S. 25, 33

frivolousness is appropdate when the facts alleged dse to the

level of the irrational ot the wholly incredible . . .

4

.")

Plaintiff has shown no reason why his

claims should proceed hete. Moreover, Plaintiff fails
plausible

claim. ll/eller u. Dep't

of Soc, Serut.

to allege sufficient facts to

þr Citl of Baltimore,

901,

F.2d

387

,

391,

state any

(4th Cir.

1990) ("[A] district court is not requited to tecognize "obscure or extravagant claims defying

the most concerted efforts to unravel them.") (quotation and citation omitted). PlaintifPs
allegations ate either conclusory or completely nonsensical ftom which no cause
can be teasonably

of action

consttued. Thus, the Court recommends dismissal of this action fot being

ftivolous and for failure to state a colorable claim for relief under 28 U.S.C. $ t9ts(e)(Z)(B).

IV. CONCLUSION
Fot the reasons set herein,

IT IS THEREFORE RECOMMENDED

that

Plaintiffs Motion to amend the Complaint pocket Entry 8) be DENIED, and PlaintifPs
complaint be DISMISSED fot being frivolous and for failure

to

state

a claim on which

telief may be granted undet 28 U.S.C. $ t9t5(e)(Z)(B).

In light of the undersigned's recommendation for dismissal, IT IS THEREFORE
ORDERED that Defendant Mictosoft Corporation's consent motion
time to ansv/er Q)ocket E.rtty 9) is

DENIED

as

f.or.

MOOT.

LWe!:cBer
St*ter S{qintrrÉe Jurlg*

August 21,201,4
Durham, North Carohna

5

ar extension of