Opinion
5:21-CV-33-BO
06-06-2021
LARRY DARNELL HILL, JR., Plaintiff, v. WILLIAM MCGUIRE, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge.
This matter is before the court on Plaintiffs application to proceed in forma pauperis [DE-1] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis is allowed. However, it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.
In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible 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." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, "a complaint must 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by apro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Burnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
The allegations of the complaint are as follows:
The defendant[] is the founder[] of crowd fund North Carolina. In the state of North Carolina discrimination is illegal. The defendant is the chief crowdfunding officer and he only crowdfund white business (mainly). I apply for funding (funds) and I was rejected due to[] the fact that I am black-minority ow[n]ed business.[DE-1-1] at 2. Plaintiff seeks two million dollars in "damages due to discrimination." Id. at 3.
Reading the complaint liberally, it appears that Plaintiffs claims are brought pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1981. Section 1981 provides a cause of action for "discrimination in the making and enforcement of contracts." BNT Ad Agency, LLC v. City of Greensboro, No. 19-2123, 2020 WL 7258730, at *6 (4th Cir. Dec. 10, 2020). "To bring a claim under § 1981, a plaintiff must demonstrate (1) that he is a member of a racial minority, (2) that defendants had the intent to discriminate against him on the basis of his race, and (3) that the defendants' discrimination concerned one of the statute's enumerated activities." Pena v. Porter, 316 Fed.Appx. 303, 316 (4th Cir. 2009) (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)). Additionally, the Supreme Court has recently clarified that in a § 1981 claim, "a plaintiff must initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right." Comcast Corp. v. Nat 7 Ass 'n of African Am. -Owned Media, - U.S. - 140 S.Ct. 1009, 1019 (2020); Jones-Debnam v. Bellarose Nursing & Rehab Ctr., Inc., No. 5:20-CV-530-BO, 2021 WL 328250, at *2 (E.D. N.C. Feb. 1, 2021) ("Asserting a claim of race-based discrimination requires plaintiff to prove what happened to her would not have occurred but for defendant's intention to discriminate on the basis of her race.").
"To survive a motion to dismiss a § 1981 claim, a plaintiff need not expressly plead each element of a prima facie case as long as he pleads 'enough facts to state a claim to relief that is plausible on its face.'" Bland v. Booth, No; 7:19-CV-63-BO, 2019 WL 2296221, at *4 (E.D. N.C. May 3, 2019) (citing Brief-McGurrin v. Cisco Sys., Inc., No. 1:18CV131, 2019 WL 1332357, at *2 (M.D. N.C. 25 Mar. 2019)), adopted by 2019WL 2296148 (E.D. N.C. May 28, 2019). However, in alleging discrimination, a plaintiff must plead more than "conclusory assertions." Button v. Montgomery Cnty., Maryland, No. CIV.A. DKC 2008-3504, 2009 WL 2496844, at *7 (D. Md. Aug. 11, 2009), aff'd, 368 Fed.Appx. 362 (4th Cir. 2010); see also Awkard v. Rammelsberg, No. CV41701542DCCKDW, 2019 WL 3308385, at *4 (D.S.C. May 10, 2019) ("Plaintiffs speculative allegations do not establish plausible claims"), adopted by 2019 WL 2482381 (D.S.C. June 14, 2019).
It is recommended that Plaintiffs claims be dismissed because the claims do not rise above mere speculation. Plaintiff asserts that Defendant "mainly" crowdfunds white businesses, and Plaintiff "was rejected due to[] the fact that I am black-minority ow[n]ed business." [DE-1-1] at 2. Plaintiff has not plead sufficient facts demonstrating a plausible claim that Defendant intended to discriminate against him on the basis of his race. See Twombly, 550 U.S. at 570; McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) ("To be sure, [the plaintiff] repeatedly alleged that the Highway Administration did not select her because of the relevant decisionmakers' bias against African American women. But those 'naked' allegations-a 'formulaic recitation' of the necessary elements-'are no more than conclusions' and therefore do not suffice." (quoting Iqbal, 556 U.S. at 678-79)); Jones-Debnam, 2021 WL 328250, at *2 ("In her complaint, plaintiff has made only conclusory allegations, and she fails to include any factual evidence to support her conclusions. As a result, plaintiff has failed to state a claim for unlawful race-based discrimination in violation of Section 1981. . . . Her naked allegations that defendant's actions were based on her race fail to state a claim without factual basis supporting her alleged conclusions."). Because Plaintiff has plead no more than a conclusory allegation that Defendant denied his application for funding because of his race, it is recommended that the complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, Plaintiffs application to proceed in forma pauperis is ALLOWED, and it is RECOMMENDED that Plaintiffs complaint be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 12, 2021, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).