Fowlkes v. Cabral et al

Filing 8

SCREENING ORDER re 6 Plaintiff's Amended Complaint signed by Judge J P Stadtmueller on 3/6/2019. The federal law claims in Plaintiff's Amended Complaint are DISMISSED with prejudice for failure to state a claim. The Court DECLINED to exercise supplemental jurisdiction over and DISMISSED without prejudice the state law claims in Plaintiff's Amended Complaint. CASE is DISMISSED. (cc: all counsel, via mail to Charmaine T. Fowlkes)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARMAINE T. FOWLKES,
Plaintiff,
v.

Case No. 18-CV-231-JPS

JOHNNY CABRAL, KRISTAN YOUNG
SORRELL, and ASHLEY TANNER,

ORDER

Defendants.
Plaintiff Charmaine T. Fowlkes (“Fowlkes”), proceeding pro se, filed
a complaint in this matter and a motion for leave to proceed in forma
pauperis, meaning without prepayment of the filing fee. (Docket #1, #2). The
Court granted Fowlkes’ motion to proceed without prepayment of the filing
fee but struck her complaint because it failed to state a claim for relief.
(Docket #5). The Court permitted Fowlkes to file an amended complaint,
explaining that, like her first complaint, the amended complaint would be
screened to determine if it states a claim for relief. Id. at 8; 28 U.S.C. §
1915(e)(2)(B). Fowlkes has filed an amended complaint, (Docket #6), and the
Court will screen it. The same standards for screening set out in the Court’s
previous order apply in equal force here. See (Docket #5 at 2–3).
The thrust of Fowlkes’ amended complaint is the same as her
original complaint. She alleges that she was previously employed by
Amazon.com, and during her employment, her supervisor, Johnny Cabral
(“Cabral”), continuously harassed her and prevented her advancement at
the company. See generally (Docket #6). Fowlkes believes that Cabral
somehow accessed her computer and personal devices remotely and then

installed malware or somehow manipulated her programs and data in
order to harass her. Id. at 3–4. She alleges that she received incoming phone
calls from numbers that did not appear to match the caller or had no one on
the line when she picked up, and she seems to attribute this to Cabral. Id. at
4. She alleges that the data usage for her household went up significantly,
and she seems to imply this is Cabral’s fault. Id. She alleges that she once
received a notification from Google that “Johnny” was “scanning [her]
personal computer.” Id. She was assigned a new supervisor, Ashley Tanner
(“Tanner”), who Fowlkes believes either failed to stop or facilitated Cabral’s
harassment. Fowlkes also reached out to Kristan Young Sorrell (“Sorrell”),
whose title is still unclear, and she apparently did not address the
harassment either. Id.
When the Court screened Fowlkes’ original complaint, it noted that
because the thrust of her complaint centered on alleged computer
misconduct, the most suitable avenue for relief would be under the
Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. The CFAA
prohibits any person from, among other things: (a) “access[ing] a protected
computer without authorization” so as to perpetuate a fraud and “obtain
anything of value”; (b) knowingly “caus[ing] the transmission of a
program, information, code or command” so as to intentionally cause
damage to a protected computer; or (c) accessing a protected computer
without authorization, in a manner that causes “damage” to the computer.
Id. § 1030(a)(4), (a)(5). A “protected computer” is broadly defined as any
computer “used in interstate or foreign commerce or communication.” Id. §
1030(e)(2)(B).
The Court explained that although Fowlkes had alleged that she
used her computer in interstate commerce, thereby satisfying the
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“protected computer” element of the claim, her allegations as to the other
elements of a CFAA claim fell short. For example, she did not state a claim
under Section 1030(a)(4) because she did not allege that Cabral intended to
defraud her or that he “obtain[ed] anything of value” through his
unauthorized access to her computer. Id. § 1030(a)(4). She did not state a
claim under Section 1030(5) because she did not allege damage to her
computer. More fundamentally, she also did not sufficiently allege harm.
The CFAA requires that a plaintiff allege one of several enumerated “factors
of harm,” of which the closest fit for Fowlkes’ claim is set forth in Section
1030(c)(4)(A)(i)(I). Under that subsection, Fowlkes must allege that she
suffered at least $5,000 in economic damages within one year. Id.; 18 U.S.C.
§ 1030(g). Fowlkes did not allege that any of the defendants’ acts caused her
any economic harm whatsoever. Though she sought $100,000 in damages,
she did not explain those damages in any detail or allege that those
damages were in any way connected to the defendants’ misconduct.
In her amended complaint, Fowlkes explains that she seeks damages
of “$30,000 per person for their part in the harassment and $10,000 for the
loss of income due to the harassment.” (Docket #6 at 2). She does not include
allegations to support these amounts; she merely indicates that she
intended to apply for a “higher level position” but the “discrimination and
harassment has prevented that action from taking course.” Id.
Simply put, Fowlkes’ amended complaint does not sufficiently
allege harm that is remediable under the CFAA. That statute is not meant
to compensate for harassment; it is intended to prohibit fraudulent conduct
on protected computers and to compensate for computer damage or theft.
See Fidlar Techs. v. LPS Real Estate Data Sols., Inc., 810 F.3d 1075, 1084 (7th
Cir. 2016) (discussing the purpose of Sections 1030(a)(4) and 1030(a)(5)(A)).
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Damage to Fowlkes’ reputation, emotional distress, and lost earnings are
not compensable under the CFAA. See Combier v. Portelos, No. 17-CV-2239
(MKB), 2018 WL 3302182, at *10 (E.D.N.Y. July 5, 2018), report and
recommendation adopted, No. 17CV2239MKBRLM, 2018 WL 4678577
(E.D.N.Y. Sept. 29, 2018).
Further, Fowlkes also does not allege sufficient factual matter to
permit a “reasonable inference,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
that the defendants were involved in causing the mysterious computer
problems she alleges. See Omari v. Ras Al Khaimah Free Trade Zone Auth., No.
16 CIV. 3895 (NRB), 2017 WL 3896399, at *11 (S.D.N.Y. Aug. 18, 2017), aff'd
sub nom. El Omari v. Kreab (USA) Inc., 735 F. App’x 30 (2d Cir. 2018)
(Plaintiff’s speculative allegations that defendants had engaged in
unauthorized access of his website were insufficient to state a claim under
the CFAA.). She must provide some factual content plausibly connecting
the defendants to the misconduct alleged, and her unsubstantiated theory
that her supervisors had an animus against her and somehow caused
myriad strange technical problems for her is not sufficient. For all of these
reasons, the Court finds Fowlkes has failed to state a claim under the CFAA.
The Court moves on, then, to endeavor to identify any other claim
Fowlkes has plausibly alleged in her amended complaint. The material
differences between Fowlkes’ original and amended complaints are that
she seeks to add several claims, mostly based on state law (she references
the Wisconsin Statutes sections for fair employment, discrimination,
internet privacy, and parties to a crime), and she mentions for the first time
the she is African American, with reference to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

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First, Fowlkes’ allegations related to her race do not state a claim for
relief under Title VII. Federal law does not protect employees from being
suspended or terminated without cause. It does prohibit employers from
terminating people based on certain characteristics, including race. See 42
U.S.C. § 2000e-2(a)(1). Fowlkes alleges that she was the only African
American female who reported to Cabral, (Docket #6 at 2), but she says
nothing to connect her race to her having been reprimanded or terminated.
Indeed, she does not allege that Cabral ever took her race into account.
While working for Amazon.com, Fowlkes apparently received calls during
which she was met with offensive language and terms known to
discriminate against African Americans, and she complained about
receiving those calls. Id. at 4. But she does not provide factual material
connecting those calls to her employer, or connecting her complaints about
them to any adverse employment action against her. Her allegations are not
sufficient to state a claim of racial discrimination under Title VII.
Next, as to Fowlkes’ references to Wisconsin state employment and
privacy statutes, even if her allegations were sufficient to state claims under
those laws, the Court would only exercise jurisdiction over them if it had
proper subject matter jurisdiction over the case either based on an alleged
federal question or based on diversity of citizenship. See 28 U.S.C. §§ 1331,
1332, 1367. As explained above, Fowlkes has not stated a federal claim
under the CFAA or Title VII, and the Court finds no basis for any other
federal claim. The Court also does not detect a basis for diversity
jurisdiction. In her original complaint, Fowlkes stated or implied that
Cabral lived in Arizona, Tanner in Washington, and Sorrell in West
Virginia. (Docket #1). Fowlkes does not repeat those allegations in her
amended complaint, but even if these defendants are indeed all citizens of
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different states than Fowlkes, who lives in Wisconsin, the amount in
controversy does not exceed $75,000, as is required for the exercise of
diversity jurisdiction. 28 U.S.C. § 1332. Fowlkes seeks damages of “$30,000
per person for their part in the harassment and $10,000 for the loss of
income due to the harassment,” (Docket #5 at 2), but she does not include
allegations to support these amounts. The Court finds that the amount in
controversy, if any, does not meet the threshold for diversity jurisdiction.
Finally, if the defendants are all citizens of different states as Fowlkes
originally pled, the Court would find that it lacks personal jurisdiction over
them. The Court flagged the personal jurisdiction issue in its previous
order, (Docket #5 at 7–8), and Fowlkes has not provided allegations to
assure the Court that the defendants have sufficient minimum contacts with
Wisconsin for this Court to exercise personal jurisdiction over them.
The Court will dismiss the federal claims alleged in Fowlkes’
amended complaint for failure to state a claim upon relief can be granted
and will decline to exercise jurisdiction over the state law claims alleged in
her amended complaint. 28 U.S.C. § 1367(c)(3). This case will be dismissed
in its entirety.
Accordingly,
IT IS ORDERED that the federal law claims in Plaintiff’s amended
complaint (Docket #6) be and the same are hereby DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim;
IT IS FURTHER ORDERED that the Court, pursuant to 28 U.S.C. §
1367(c)(3), declines to exercise supplemental jurisdiction over the state law
claims raised in the Plaintiff’s amended complaint and the Plaintiff’s state
law claims (Docket #6) be and the same are hereby DISMISSED without
prejudice; and
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IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 6th day of March, 2019.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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