Rychenko v. Burnette et al
Filing
16
MEMORANDUM AND RECOMMENDATIONS and ORDER: RECOMMENDATION on 1 Complaint filed by Pyotr Mikhail Rychenko, 12 MOTION to Dismiss for Failure to State a Claim filed by Patricia Bo yd, Dan Russell Boyd, Melody Boyd Burnette ( Objections to M&R due by 1/26/2017 plus an additional 3 days if served by mail). ORDER that all further proceedings in this action, including all discovery, are STAYED pending the District Judge's ruling on this Memorandum and Recommendation. Signed by Magistrate Judge David S. Cayer on 1/12/2017. (Pro se litigant served by US Mail.)(khm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:16-CV-00214-MR-DSC
PYOTR MIKHAIL RYCHENKO,
Plaintiff,
v.
MELODY BOYD BURNETTE, et al.,
Defendants.
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ORDER
MEMORANDUM AND RECOMMENDATION AND ORDER
THIS MATTER is before the Court on Defendants’ “Motion to Dismiss” (document #12)
and “Memorandum in Support …” (document #13).
On December 5, 2016, the Court entered an “Order” “[i]n accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975) … advis[ing] Plaintiff, who is proceeding pro se, that he
has a right to respond to Defendants’ Motion. The Court also advise[d] Plaintiff that failure to
respond may result in Defendants being granted the relief they seek, that is, the DISMISSAL OF
THE COMPLAINT WITH PREJUDICE.” Document #14 (emphasis in original).
The Court “allow[ed] until January 5, 2017 [for Plaintiff] to respond to Defendants’
‘Motion to Dismiss’ …” with three days for mailing. Id. That same day, the Clerk’s office mailed
a copy of the Order to Plaintiff.
On December 12, 2016, the Clerk’s letter to Plaintiff was returned “undeliverable unable
to forward.” Document #15.
Plaintiff has not responded to the Motion to Dismiss, nor contacted the Court to provide
his current mailing address.
This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1) and this Motion is now ripe for the Court’s consideration.
Having fully considered the arguments, the record, and the applicable authority, the
undersigned respectfully recommends that Defendants’ Motion to Dismiss be granted, as discussed
below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Accepting the factual allegations of the Complaint as true, Defendants Melody Burnette,
Patricia Boyd, and Dan Boyd are the owners of Mad Mama’s River Run Campground in McDowell
County, North Carolina. Defendant Burnette acts as the manager of the property. Sometime in
January 2016, an unnamed employee of Plaintiff contacted Mad Mama’s River Run Campground
in order to rent a campsite. Defendants collected a security deposit of $130.00 from the employee.
Plaintiff or his employees extended the rental of the campsite for the months of February and
March 2016. Plaintiff did not use the campsite during the month of January, and did not arrive at
the campsite until sometime in February.
Plaintiff alleges that from March 15, 2016 through March 23, 2016, Defendants disparaged
him and his employees after learning that he was a Minister of the Church of the Serpent. Plaintiff
alleges that Defendant Burnette chased his employee, attempted to forcibly enter his camper, and
threatened to burn the camper. As a result, Plaintiff removed the camper and was never refunded
his security deposit or the advance rental payments. Plaintiff alleges that the actions of the
Defendants were based solely upon his religion.
On June 27, 2016, Plaintiff filed his Complaint alleging religious discrimination in public
accommodations in violation of Title II of the Civil Rights Act of 1964, 42 USC. §2000a (“Title
II”). Plaintiff seeks $100,000 in compensatory damages as well as punitive damages and costs.
On November 8, 2016, Defendants filed their Motion to Dismiss which is ripe for
disposition.
II. DISCUSSION
In reviewing a Rule 12(b)(6) motion, “the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The plaintiff’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). “[O]nce a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” Id. at 563. A complaint attacked
by a Rule 12(b)(6) motion to dismiss will survive if it contains enough facts to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.
In Iqbal, the Supreme Court articulated a two-step process for determining whether a
complaint meets this plausibility standard. First, the court identifies allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Id. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555) (allegation that government officials adopted challenged policy
“because of” its adverse effects on protected group was conclusory and not assumed to be true).
Although the pleading requirements stated in “Rule 8 [of the Federal Rules of Civil Procedure]
mark[] a notable and generous departure from the hyper-technical, code-pleading regime of a prior
era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79.
Second, to the extent there are well-pleaded factual allegations, the court should assume
their truth and then determine whether they plausibly give rise to an entitlement to relief. Id. at
679. “Determining whether a complaint contains sufficient facts to state a plausible claim for relief
“will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id.. “Where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief,’” and therefore should be dismissed. Id. (quoting
Fed. R. Civ. P. 8(a)(2)).
Plaintiff’s claim under Title II should be dismissed because he has sought monetary
damages when only injunctive relief is available under the statute. 42 U.S.C. § 2000a-3(a) clearly
states that the only remedy available under Title II is injunctive or other preventative relief. “A
Title II suit is thus private in form only. When a Plaintiff brings an action under that Title, he
cannot recover damages.” Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968).
Plaintiff alleges that he suffered discrimination in a public accommodation based upon his
religion. He seeks only compensatory damages in the amount of $100,000.00 and punitive
damages. Both are unavailable under the statute.
Accordingly, the undersigned respectfully recommends that Defendants’ Motion to
Dismiss be granted.
III. ORDER
IT IS HEREBY ORDERED that all further proceedings in this action, including all
discovery, are STAYED pending the District Judge’s ruling on this Memorandum and
Recommendation and Order.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that the
Defendants’ “Motion to Dismiss” (document #12) be GRANTED and that the Complaint be
DISMISSED WITH PREJUDICE.
V. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written objections
to the proposed findings of fact and conclusions of law and the recommendation contained in this
Memorandum must be filed within fourteen (14) days after service of same. Failure to file
objections to this Memorandum with the Court constitutes a waiver of the right to de novo review
by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); Wells v.
Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th
Cir. 1989). Moreover, failure to file timely objections will also preclude the parties from raising
such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d at 316;
Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation and Order
to the pro se Plaintiff, to defense counsel, and to the Honorable Martin Reidinger.
SO RECOMMENDED AND ORDERED.
Signed: January 12, 2017
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