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

Filing 75

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 02/27/2015, that the Magistrate Judge's Recommendation (Doc. 30 ) is ADOPTED. FURTHER that Plaintiff's motion to amend the complaint (Doc. 8 ) is DENIED an d that Plaintiff's complaint (Doc. 2 ) and any amended complaints are DISMISSED for being frivolous and for failure to state a claim on which relief may be granted under 28 U.S.C. § 1915(e)(2)(B). FURTHER that because this case is being dismissed, all pending motions filed in this case, including but not limited to, the following motions, are DENIED AS MOOT: (1) Plaintiff's Motion for Entry of Default Judgment (Doc. 16 ); (2) Defendant Microsoft Corporat ion's Motion to Dismiss (Doc. 17 ); (3) Plaintiff's Motion for Entry of Default Judgment against Microsoft (Doc. 21 ); (4) Defendant School Board of Brevard County Florida's Motion to Dismiss (Doc. 26 ); (5) Plaintiff's Motion for Partial Summary Judgment against Microsoft (Doc. 36); (6) Plaintiffs Motion for Partial Summary Judgment against Defendant School Board of Brevard County, Florida (Doc. 38 ); (7) Plaintiff's Motion to Amend his Briefs for Partial Summar y Judgment pursuant to LR 56.1(d) against Microsoft and the School Board (Doc. 41 ); (8) Plaintiff's Motion for Preliminary Injunctive Relief (Doc. 43 ); (9) Defendant Microsoft's Motion to Stay Deadlines (Doc. 47 ); (10) Plaintiff 9;s Request for Entry of Default against Defendant U.S. Department of Education (Doc. 51 ); (11) Plaintiff's Request for Entry of Default against Defendant U.S. Department of Health and Human Services (Doc. 52 ); (12) Plaintiff's Moti on for Entry of Default Judgment (Doc. 54 ); (13) Plaintiff's Motion for Preliminary Injunctive Relief (Doc. 60 ); (14) Plaintiff's Amended Motion for Preliminary Injunctive Relief (Doc. 65 ); (15) Plaintiff's Second Motion for Pr eliminary Injunctive Relief (Doc. 67 ); and (16) Motion to Enjoin Case 1:14- CV-802 and its Evidentiary Attachments to this case (1:14-CV-468) pursuant to Fed. R. Civ. P. Rule 11(B)(3) and Amend Complaint pursuant to Fed. R. Civ. P. Rule 15 (Doc. 69). (Abby Taylor)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TAY,
d/b/a DONTAVIOUS S. SMITH,

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Plaintiff,
v.
U.S. DEPARTMENT OF EDUCATION,
et al.,
Defendants.

1:14CV468

ORDER
This matter is before this court for review of the Order,
Memorandum Opinion and Recommendation (“Recommendation”) filed
on August 21, 2014, by the Magistrate Judge in accordance with
28 U.S.C. § 636(b).

(Doc. 30.)

In the Recommendation, the

Magistrate Judge recommends that Plaintiff’s motion to amend the
complaint (Doc. 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. § 1915(e)(2)(B).
The Recommendation was served on the parties to this action on
August 27, 2014.

Plaintiff filed objections to the

Recommendation (Doc. 45) and Defendant Microsoft Corporation
filed a response to Plaintiff’s objections (Doc. 46).

This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is made.@
28 U.S.C. § 636(b)(1).

This court Amay accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge . . . . or recommit the matter
to the [M]agistrate [J]udge with instructions.@

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objections were made and has made a
de novo determination which is in accord with the Magistrate
Judge’s Recommendation.

This court therefore adopts the

Recommendation with the following additional analysis.
28 U.S.C. § 1915(e)(2) provides that “[n]otwithstanding any
filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines
that . . . the action . . . is frivolous or malicious . . . [or]
fails to state a claim on which relief may be granted.”

The

Magistrate Judge expressly addressed the frivolous nature of the
filings by Plaintiff in this case and the history of related
litigation in other districts in the Recommendation.

As the

Magistrate Judge notes, Plaintiff’s claims appear to originate
from claims that all Defendants are in some manner responsible

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for an alleged falsified drug test which Plaintiff took as part
of the employment procedures to become a substitute teacher in
Brevard County. (Recommendation (Doc. 30) at 1-2.)

By way of

objection to the Recommendation, Plaintiff alleges, inter alia,
that “venue is just pursuant to Rule 1 of the Fed. Rules of Civ.
P. due to the State of Florida providing Tay prejudicial ‘void
judgments’ to deny him relief and or access to the Courts to
receive his due relief, THEREFORE the State of Florida and its
Districts would provide Tay an injustice to his claims for
relief and material facts that have and can be proven at trial.”
(Doc. 45 at 10.)

This allegation confirms what the Magistrate

Judge recognized in quoting from an order of the Eastern
District of New York dismissing a similar case brought by this
Plaintiff:

“[t]he court will not allow plaintiff to circumvent

the Middle [District of Florida’s] filing injunction by allowing
this complaint to proceed here.” (Recommendation (Doc. 30) at 4
(quoting Tay v. Dash, et al., No. 1:14-CV-4047(ARR)(LB), 2014 WL
3695193, at *2 (E.D.N.Y. July 22, 2014)).)
Furthermore, the complaint and amended complaints fail to
allege a plausible claim, even considering Plaintiff’s pro se
status.

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible provided the plaintiff provides enough factual content
to enable the court to reasonably infer that the defendant is
liable for the misconduct alleged.

Id.

Thus, while the

complaint need not contain detailed factual allegations, a
“plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
(citation omitted).

Twombly, 550 U.S. at 555

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all allegations in the complaint are true.”
(citation omitted).

Id.

While courts must hold complaints filed by

pro se litigants “to less stringent standards than formal
pleadings drafted by lawyers . . .” Haines v. Kerner, 404 U.S.
519, 520-21 (1972), pro se plaintiffs must still meet the
plausibility standard to withstand a Rule 12(b)(6) motion.
The complaint and amended complaint filed in this matter are
wholly implausible and should therefore be dismissed.

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Two complaints filed by Plaintiff in this court have now
been dismissed as frivolous. (See also 1:14CV802.)

Plaintiff is

cautioned that the continued filing of similar complaints in
this district may result in a pre-filing injunction in this
court, in addition to any such order in the Middle District of
Florida. See Smith a/k/a Tay v. State of Florida, No. 6:12–cv–
00439–CEH–KRS (M.D. Fla. Aug. 7, 2012) (dismissing complaint and
entering filing injunction).
In determining whether a prefiling injunction is
substantively warranted, a court must weigh all the
relevant circumstances, including (1) the party's
history of litigation, in particular whether he has
filed vexatious, harassing, or duplicative lawsuits;
(2) whether the party had a good faith basis for
pursuing the litigation, or simply intended to harass;
(3) the extent of the burden on the courts and other
parties resulting from the party's filings; and (4)
the adequacy of alternative sanctions. See, e.g.,
Safir v. United States Lines, Inc., 792 F.2d 19, 24
(2d Cir. 1986); Green v. Warden, United States
Penitentiary, 699 F.2d 364, 368-69, 370 n.8 (7th Cir.
1983); Pavilonis [v. King], 626 F.2d [1075,] 1078-79
[1st Cir. 1980].
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 818 (4th Cir.
2004.)

Although Plaintiff’s practices in this case might merit

consideration of such an injunction, this court declines to do
so in light of the dismissal of this action.

However, Plaintiff

is CAUTIONED that such action may be considered should Plaintiff
file any further frivolous actions.

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IT IS THEREFORE ORDERED that the Magistrate Judge’s
Recommendation (Doc. 30) is ADOPTED.

IT IS FURTHER ORDERED that

Plaintiff’s motion to amend the complaint (Doc. 8) is DENIED and
that Plaintiff’s complaint (Doc. 2) and any amended complaints
are DISMISSED for being frivolous and for failure to state a
claim on which relief may be granted under 28 U.S.C.
§ 1915(e)(2)(B).
IT IS FURTHER ORDERED that because this case is being
dismissed, all pending motions filed in this case, including but
not limited to, the following motions, are DENIED AS MOOT:

(1)

Plaintiff’s Motion for Entry of Default Judgment (Doc. 16); (2)
Defendant Microsoft Corporation’s Motion to Dismiss (Doc. 17);
(3) Plaintiff’s Motion for Entry of Default Judgment against
Microsoft (Doc. 21); (4) Defendant School Board of Brevard
County Florida’s Motion to Dismiss (Doc. 26); (5) Plaintiff’s
Motion for Partial Summary Judgment against Microsoft (Doc. 36);
(6) Plaintiff’s Motion for Partial Summary Judgment against
Defendant School Board of Brevard County, Florida (Doc. 38); (7)
Plaintiff’s Motion to Amend his Briefs for Partial Summary
Judgment pursuant to LR 56.1(d) against Microsoft and the School
Board (Doc. 41); (8) Plaintiff’s Motion for Preliminary
Injunctive Relief (Doc. 43); (9) Defendant Microsoft’s Motion to

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Stay Deadlines (Doc. 47); (10) Plaintiff’s Request for Entry of
Default against Defendant U.S. Department of Education (Doc.
51); (11) Plaintiff’s Request for Entry of Default against
Defendant U.S. Department of Health and Human Services (Doc.
52); (12) Plaintiff’s Motion for Entry of Default Judgment (Doc.
54); (13) Plaintiff’s Motion for Preliminary Injunctive Relief
(Doc. 60); (14) Plaintiff’s Amended Motion for Preliminary
Injunctive Relief (Doc. 65); (15) Plaintiff’s Second Motion for
Preliminary Injunctive Relief (Doc. 67); and (16) Motion to
Enjoin Case 1:14-CV-802 and its Evidentiary Attachments to this
case (1:14-CV-468) pursuant to Fed. R. Civ. P. Rule 11(B)(3) and
Amend Complaint pursuant to Fed. R. Civ. P. Rule 15 (Doc. 69).
This the 27th day of February, 2015.

_______________________________________
United States District Judge

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