GWALTNEY v. BARBOUR et al
Filing
4
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 6/13/2016. 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 this action be dismissed as frivolousand for failing to state a claim under 28 U.S.C. § 1915(e)(2).(Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD GWALTNEY,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ROBERT BARBOUR, et al.,
Defendants.
1:16CV435
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
recommending
(Docket
instant
Entry
Application
dismissal
of
2).
for
this
The
the
action,
Court
will
limited
under
grant
purpose
28
U.S.C.
of
§
1915(e)(2), as frivolous and for failing 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 [C]ourt
shall dismiss the case at any time if the [C]ourt determines . . .
the action . . . is frivolous . . . [or] fails to state a claim on
which relief may be granted.”
28 U.S.C. § 1915(e)(2).
“[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.”
319, 325 (1989).
not susceptible
Neitzke v. Williams, 490 U.S.
“The word ‘frivolous’ is inherently elastic and
to
categorical
definition.
. .
.
The
term’s
capaciousness directs 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
marks
Nagy, 376 F.3d at 256–57
omitted).
frivolousness, the Court may “apply common sense.”
In
determining
Nasim, 64 F.3d
at 954.
Alternatively, a plaintiff “fails to state a claim on 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) (emphasis added)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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“Where a complaint pleads facts that are ‘merely consistent with’
a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’”
(quoting Twombly, 550 U.S. at 557).
Id.
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.
of
action,
suffice.”
Threadbare recitals of the elements of a cause
supported
by
mere
conclusory
statements,
do
not
Id.1
ANALYSIS
The
Complaint
consists
entirely
of
indecipherable
and/or
conclusory statements, including a list of random “laws” and
government agencies, without any facts that make out a claim for
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
citation 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)).
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relief.
By way of example, the Complaint’s statement of claim
section consists only of the following “laws,” agencies, and a
defendant’s name:
“Labor Board Law[,] DOT Law[,] Medical Act
Leave[,] ATF (Alc[o]hol Tobacco Firearms[),] DEA[,] FBI[,] EPA[,]
EEOC[,] NC DOT Traffic Route Violations[, and] Robert Barbour.”
(Docket Entry 2 at 2-3.)2
Similarly, the Complaint’s request for
relief section provides a list of conclusory requests, without any
factual matter to support a claim for those requests:
“Remove
Robert Barbour[,] Sell/Buy his Company out[,] Restraining Order to
prevent [Plaintiff] harm[,] Turn in all weapons to Cabarrus Co.
Sheriff[,] ban[] him [from] being in the County.”
(Docket Entry 2
at 4.)
Further, Plaintiff attached to his Complaint more than 50
pages of documents that appear to relate to his petitions for
certain disability and unemployment benefits. (Docket Entry 3-1.)3
2
To the extent the Complaint alleges violations of the Family
Medical Leave Act, 29 U.S.C. §§ 2601 et seq., the Complaint fails
to set forth any facts, or even allege, that Plaintiff’s former
employer, Defendant Robert Barbour, failed to provide him jobprotected leave, see 29 U.S.C. § 2612.
Moreover, Plaintiff
previously filed a lawsuit against Defendant Robert Barbour, which
this Court dismissed for lack of subject matter jurisdiction and
for failure to state a claim, without prejudice to any
discrimination related claims.
Gwaltney v. Barbour, 1:15CV771,
2015 WL 5774799 (M.D.N.C. Sept. 30, 2015), recommendation adopted,
slip op. (M.D.N.C. Oct. 23, 2015). Here, the Complaint contains no
allegations that Defendant Robert Barbour discriminated against
Plaintiff.
3
denial
Plaintiff has already filed two lawsuits regarding the
of his state unemployment benefits, which this Court
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Those documents do not relate to or provide any factual support for
the Complaint’s listed causes of action against Defendants.
In
sum, based on the Complaint’s lack of factual material, Plaintiff
has
presented
a
text-book
“the-defendant-unlawfully-harmed-me
accusation” of the type that the United States Supreme Court has
ruled insufficient to state a claim for relief.
U.S. at 678.
See Iqbal, 556
As a result, the Complaint lacks any arguable basis
in law, thus qualifying this action as legally frivolous.
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 this action be dismissed as frivolous
and for failing to state a claim under 28 U.S.C. § 1915(e)(2).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 13, 2016
dismissed for lack of subject matter jurisdiction. See Gwaltney v.
Unemployment NCESU, No. 1:15cv770, 2015 WL 5774779 (M.D.N.C. Sept.
30, 2015), recommendation adopted, slip op. (M.D.N.C. Oct. 23,
2015); Gwaltney v. NC Dep’t of Commerce, No. 1:16cv150, 2016 WL
913150 (M.D.N.C. Mar. 9, 2016), recommendation adopted, slip op.
(M.D.N.C. Apr. 11, 2016).
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