GWALTNEY v. BARBOUR
Filing
4
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD, signed on 09/30/2015. IT IS ORDERED that Plaintiff's Application to Proceed In Forma Pauperis 1 is GRANTED for the limited purpose o f considering this Recommendation of Dismissal. IT IS RECOMMENDED that all federal claims in this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim, without prejudice as to any discrimination-related claim(s). IT IS FURTHER RECOMMENDED that the Court decline supplemental jurisdiction over any state law claims, pursuant to 28 U.S.C. § 1367(c)(3). (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD GWALTNEY,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ROBERT BARBOUR,
Defendant.
1:15CV771
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed In Forma Pauperis (Docket Entry 1) in conjunction with his
pro
se
Complaint
Plaintiff’s
(Docket
instant
Entry
Application
2).
for
The
the
Court
will
limited
grant
purpose
of
recommending dismissal for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted.
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 . . . (B) the action . . . fails to state a claim
upon which relief may be granted.”
28 U.S.C. § 1915(e)(2).
A
complaint falls short of stating a claim upon which relief may be
granted when 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) (emphasis
added) (internal citations omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
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.
Threadbare recitals of the elements of a cause
2
of
action,
suffice.”
supported
by
mere
conclusory
statements,
do
not
Id.1
ANALYSIS
Plaintiff’s Complaint seeks redress for Defendant’s purported
“[i]ntimidation[,] [p]roperty [p]ossession, [and] failure to follow
Fair Labor Standards” by not paying back pay for salary increases
and accrued vacation pay.
(Docket Entry 2 at 2; see also id.
(alleging “[f]ailure to give back pay for salary [i]ncreases $1.00
X 26 X 40 hours $640.00,” and “Terminate on 12.27.14 Anniversary
date of 01.02.15=1 wkwks [sic] vacation $1,200”).)
Plaintiff’s
only federal claim, for violation of the Fair Labor Standards Act
(“FLSA”), fails as a matter of law because the FLSA does not
require pay raises and vacation pay and “does not provide wage
payment
or
collection
procedures
for
an
employee’s
usual
or
promised wages or commissions in excess of those [minimum and
overtime wages] required by the FLSA.”
the
Fair
Labor
Standards
Act,
at
Handy Reference Guide to
p.
1
(Sept.
24,
2015),
http://www.dol.gov/whd/regs/compliance/wh1282.pdf; see also Fair
1
Although “[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); accord Atherton v. District of
Columbia Office of Mayor, 567 F.3d 672, 681 82 (D.C. Cir. 2009) (“A pro se
complaint . . . ‘must be held to less stringent standards than formal pleadings
drafted by lawyers.’ But even a pro se complainant must plead ‘factual matter’
that permits the court to infer ‘more than the mere possibility of misconduct.’”
(quoting Erickson, 551 U.S. at 94, and Iqbal, 556 U.S. at 679, respectively)).
3
Labor Standards Act of 1938, Ch. 676, 52 Stat. 1060 (codified as
amended at 29 U.S.C. §§ 201-219); McMurray v. LRJ Rests., Inc.,
4:10-CV-01435,
2011 WL
(unpublished)
247906,
(holding
that
at
the
*2
(D.S.C.
FLSA
did
Jan.
not
26,
2011)
preempt
the
plaintiff’s claim for failure to pay salary raises); Nimmons v. RBC
Ins. Holdings (USA) Inc., 6:07-CV-2637, 2007 WL 4571179, at *2 n.1
(D.S.C. Dec. 27, 2007) (unpublished) (holding that the plaintiff’s
claim against the defendant “for failure to pay accrued vacation
pay [was]
claim”).
not
preempted
or
otherwise
foreclosed
by
the FLSA
Notably, Plaintiff does not allege that he was paid less
than minimum wage or that he was not paid overtime as provided for
under Sections 206 and 207 of the FLSA.
(See Docket Entry 2.)
Therefore, the Complaint fails to state a valid FLSA claim.
Beyond the FLSA, the Complaint makes reference to several
discrimination-related claims, but provides no supporting facts or
allegations that would entitle him to relief:
“Due Damages- EEOC
Investing [sic] under way -Ruled in favor of Mr. Gwaltney[,]
Estimated 500,000-2,000,000 -Sexual Harassment[,] -Age-Over 40[,]
-Disability-Diabetic/Medication Pyc.[,] -Medical-Diabetic[,] -SexMale, White.”
(Id. at 4.)
In the employment setting, federal
causes of action exist for sexual harassment, see Title VII of the
Civil
Rights
Act
of
1964,
42
U.S.C.
§
2000,
et
seq.,
age
discrimination, see The Age Discrimination in Employment Act of
1967, 29 U.S.C. 621, et seq., and discrimination against people
4
with disabilities, see Title I of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101, et seq., but Plaintiff has failed
to include any allegations in the Complaint concerning Defendant’s
alleged discriminatory practices (see Docket Entry 2 at 2-4) and
thus his Complaint fails to state a federal claim.2
Given the absence of a viable federal claim and of grounds for
the exercise of diversity jurisdiction,3 any remaining state law
claims should not proceed in this Court.
1367(c)(3)
(“The
district
courts
may
See, e.g., 28 U.S.C. §
decline
to
exercise
supplemental jurisdiction over a [state] claim . . . [when] the
district court has dismissed all claims over which it has original
jurisdiction . . . .”); United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well.”); Waybright v. Frederick
Cty., Md., 528 F.3d 199, 209 (4th Cir. 2008) (“With all its federal
2
Because Plaintiff conceivably could state a federal discrimination
related claim, the Court should dismiss those claims without prejudice.
3
The Complaint alleges that Plaintiff is a resident of Kannapolis, North
Carolina, and that Defendant is a resident of Concord, North Carolina. (Docket
Entry 2 at 1.) Therefore, Plaintiff has also failed to carry his burden of
establishing diversity jurisdiction, see 28 U.S.C. § 1332(a). See, e.g., Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) (“[T]he presence
in the action of a single plaintiff from the same State as a single defendant
deprives the district court of original diversity jurisdiction over the entire
action.”); Sanderlin v. Hutchens, Senter & Britton, P.A., 783 F. Supp. 2d 798,
801 (W.D.N.C. 2011) (“Plaintiffs have not satisfied the complete diversity
requirement. Specifically Plaintiffs and Defendant Hutchens, Senter & Britton,
P .A. are both citizens of North Carolina.”).
5
questions gone, there may be the authority to keep [the case] in
federal court . . . but there is no good reason to do so.”).
IT
IS
THEREFORE
ORDERED
that
Plaintiff’s
Application
to
Proceed In Forma Pauperis (Docket Entry 1) is GRANTED for the
limited purpose of considering this recommendation of dismissal.
IT IS RECOMMENDED that all federal claims in this action be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to
state a claim, without prejudice as to any discrimination-related
claim(s).
IT IS FURTHER RECOMMENDED that the Court decline supplemental
jurisdiction over any state law claims, pursuant to 28 U.S.C. §
1367(c)(3).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 30, 2015
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?