BLACKWELL v. ST. MORITZ BUILDING SERVICES et al
Filing
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MEMORANDUM OPINION, ORDER AND RECOMMENDATION SIGNED BY UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD ON 01/21/2015 re 3 Complaint and 2 APPLICATION to Proceed IFP filed by SHELIA BLACKWELL. After review, it has been concluded that Plaintiff 39;s case is frivolous and fails to state a claim. THEREFORE IT IS ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis be GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. IT IS RECOMMENDED that the Court dismiss this action pursuant to 28 U.S.C. § 1915 (e)(2)(B). Objections to R&R due by 2/9/2015 (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHEILA BLACKWELL,
Plaintiff,
v.
ST. MORITZ BUILDING SERVICES,
et al.,
Defendants.
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1:15CV8
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application
for Leave to Proceed In Forma Pauperis (Docket Entry 2), filed in
conjunction with her pro se Complaint (Docket Entry 3).
The Court
will grant Plaintiff’s Application (Docket Entry 2) for the limited
purpose of recommending dismissal of this action pursuant to 28
U.S.C. § 1915(e)(2)(B) for frivolousness and failure to state a
claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
quotation
however,
[is]
marks
not
omitted).
without
its
problems. . . . In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
FMC Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To address this
concern, the in forma pauperis statute provides that “the court
shall dismiss the case at any time if the court determines . . .
the action . . . is frivolous or malicious . . . [or] fails to
state a claim on which relief may be granted . . . .”
28 U.S.C.
§ 1915(e)(2).
As to the first of these grounds, the United States Supreme
Court has explained that “a complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact.”
Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
In assessing such matters,
this Court may “apply common sense.”
Nasim, 64 F.3d at 954; see
also Nagy, 376 F.3d at 256 (“The word frivolous is inherently
elastic and not susceptible to categorical definition.”
(internal
quotation marks omitted)).
As to the second ground, a plaintiff “fails to state a claim
upon which relief may be granted,” 28 U.S.C. § 1915(e)(2)(B)(ii),
when the complaint 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) (internal
citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “Where a complaint pleads facts that are ‘merely
2
consistent with’ a defendant's liability, it ‘stops short of the
line
between
relief.’”
possibility
and
plausibility
of
‘entitlement
Id. (quoting Twombly, 550 U.S. at 557).
to
This standard
“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”
Id.
In other words, “the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”
Id.1
ANALYSIS
Plaintiff’s Complaint stems from her dismissal from Defendant
St. Moritz’s employment, and the subsequent investigation and
handling of her claim by Equal Employment Opportunity Commission
(“EEOC”) employees Defendants Troxler and Glover.
Entries 3, 3-1.)
(See Docket
Although the Court “cannot shoulder the full
burden of fashioning a viable complaint for a pro se plaintiff,”
Simon v. Shawnee Corr. Ctr., No. 13-521-GPM, 2013 WL 3463595, at *1
(S.D. Ill. July 9, 2013) (unpublished), the Court understands
Plaintiff to allege claims under Title VII for termination of her
employment on the basis of her race, 42 U.S.C. § 2000e-2(a), and
1
Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (dismissing pro se complaint).
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for retaliation, 42 U.S.C. § 2000e-3(a).
The Court should dismiss
Plaintiff’s claims against Defendant St. Moritz for frivolousness
and against Defendants Troxler and Glover for failure to state a
claim.
A.
Frivolousness
Plaintiff’s Title VII claims qualify as untimely, and thus,
frivolous.
Under 42 U.S.C. § 2000e-5(f)(1), “the Commission . . .
shall so notify the person aggrieved and within ninety days after
the giving of such notice a civil action may be brought against the
respondent named in the charge . . . .”
The 90-day period does not
act as a jurisdictional bar but rather as a statute of limitations.
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
When the parties do not know the date of receipt of the right-tosue letter, a presumption arises that the party received the letter
within three days of its dispatch - as dated by the EEOC.
Ish v.
Arlington Cnty. Va., No. 90-2433, 918 F.2d 955 (table), 1990 WL
180127, at *1 (4th Cir. Nov. 21, 1990) (unpublished).
Here, Plaintiff makes no allegation in her Complaint regarding
when she received the right-to-sue letter; however, she did attach
two copies of her right-to-sue letter to her Complaint.
Entry 3-1 at 1-2.)
August 28, 2014.
(Docket
The EEOC dispatched the right-to-sue letter on
(Id.)
Applying the presumption to this case,
Plaintiff presumably received the right-to-sue letter on Monday,
4
September
1,
2014.2
Thus,
the
90-day
period
expiration on Monday, December 1, 2014.3
ran
until
its
Plaintiff did not file
her Complaint, as indicated by the file-stamp by the Clerk’s
Office, until January 5, 2015.
(See Docket Entry 3 at 1.)
The
Complaint’s untimeliness appears on its face, and, therefore, the
Court should dismiss the case as frivolous.
See Nasim, 64 F.3d at
956 (upholding dismissal of time-barred claim as frivolous).
B.
Failure to State a Claim
The Court should also dismiss Plaintiff’s claims against
Defendants
Troxler
and
Glover
for
failure
to
state
a claim.
Plaintiff does not specify in her Complaint the basis for claims
against Defendants Troxler and Glover; she accuses them of poorly
investigating
her
case,
Defendant St. Moritz.
1 at 9, 19-20.)
and
possibly
accepting
bribes
from
(See Docket Entry 3 at 4, 8; Docket Entry 3-
“The proper course for a private plaintiff whose
claim the EEOC mishandled is to bring a lawsuit against the
plaintiff’s employer on the merits, not one against the EEOC.”
Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000).
Title VII
does not provide a cause of action against the EEOC, or its
employees, for an individual dissatisfied with the results of her
2
The third day actually falls on August 31, 2014, a Sunday,
and the United States Post Office does not typically deliver mail
on Sundays.
3
The ninetieth day actually falls on November 30, 2014, a
Sunday, a day the Court did not open.
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investigation.
See Moore v. New Hanover Cnty. Gov’t, No. 7:03-CV-
195-DEV, 2004 WL 3266045, at *6 (E.D.N.C. Aug. 13, 2004) (citing
cases), aff’d, 122 F. App’x 644 (4th Cir. Mar. 4, 2005).
Thus,
Plaintiff fails to state a claim against Defendants Troxler and
Glover.
CONCLUSION
Plaintiff has demonstrated eligibility for proceeding in forma
pauperis; however, the Court should dismiss her Complaint under §
1915(e)(2)(B) for frivolousness and failure to state a claim.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave
to Proceed In Forma Pauperis (Docket Entry 2) is GRANTED FOR THE
LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION
OF DISMISSAL.
IT IS RECOMMENDED that the Court dismiss this action pursuant
to 28 U.S.C. § 1915(e)(2)(B).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 21, 2015
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