Opinion
7:22-CV-53-FL
05-20-2022
KATHY JUANITA REAVES, Plaintiff, v. BROOKS PIERCE, et al. Defendants.
MEMORANDUM AND RECOMMENDATION
Robert R. 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). Upon consideration of Plaintiff s application, it is recommended that in forma pauperis status be denied.Alternatively, it is recommended that the complaint be dismissed on frivolity review.
A magistrate judge, proceeding under 28 U.S.C. § 636(b), lacks authority to deny an application to proceed in forma pauperis and may only issue a recommendation to the district court. Hunter v. Roventini, 617 Fed.Appx. 225,226 (4th Cir. 2015) (per curiam) (citing Woods v. Dahlberg, 894 F.2d 187, 187 (6th Cir. 1990) (per curiam) (“[A] denial of such a motion is the functional equivalent of an involuntary dismissal and is outside the scope of a magistrate's authority.”)).
I. In Forma Pauperis Application
A litigant may commence an action in federal court in forma pauperis (“IFP”) by filing an affidavit in good faith containing a statement of assets and demonstrating he cannot afford to pay the required fees of the lawsuit. See 28 U.S.C. § 1915(a)(1). The IFP statute is intended to ensure that indigent persons have equal access to the judicial system by allowing them “to proceed without having to advance the fees and costs associated with litigation.” Flint v. Haynes, 651 F.2d 970,972 (4th Cir. 1981). However, “proceeding [IFP] in a civil case is a privilege or favor granted by the government” White v. Barnhart, Nos. 1:02-CV-556, l:02-CV-557, 2002 WL 1760980, at *1 (M.D. N.C. July 30, 2002) (citations omitted). In ruling on an IFP application, the court must exercise discretion in determining whether to grant or deny the application. Id. In Adkins v. E.I DuPont de Nemours & Co., 335 U.S. 331, 339 (1948), the Supreme Court first set forth the standard for the determination of in forma pauperis'. “[w]e think an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs ... and still be able to provide himself and dependents with the necessities of life.” Id. at 339 (internal quotation marks omitted). In exercising its discretion, the court is to be mindful that the ability to pay does not require that a plaintiff prove that he is “absolutely destitute.” Id.
Based on the information provided by Plaintiff regarding her current financial status, she has failed to demonstrate sufficient evidence indicating that payment of the required court costs would deprive her or her family of the “necessities of life.” Adkins, 355 U.S. at 339. Plaintiff has income of $3,800.00 per month, expenses of $2,475.00 per month, and no dependents. [DE-1]. Although Plaintiff states in her proposed complaint that on March 3, 2022, she was suspended from her teaching job for ninety days, the suspension was with pay. [DE-1 -1 ]. Plaintiff also states that she is in a position to make monthly payments to the court of $201.00. [DE-1] ¶ 5. Plaintiff has failed to demonstrate she is one of the “truly impoverished litigants who, within the District Court's sound discretion, would remain without [a] legal remedy if such privilege were not afforded to them.” Brewster v. N A. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Furthermore, Plaintiff was allowed to proceed in forma pauperis in Reaves v. Williamson, No. 7-22-CV-2-FL. Plaintiffs request to pay the filing fee in installments was allowed, and Plaintiffs complaint was allowed to proceed prior to her full payment of the filing fee. Id., [DE-25]. However, although Plaintiff ultimately made the payments, they were not made timely. Id., [DE-46, -80]. Accordingly, it is recommended that Plaintiff s application to proceed in forma pauperis be denied and that Plaintiff be required to tender to the clerk the filing and administrative fee of $402.00, in monthly installments of $201.00, before her complaint is allowed to proceed.
II. Frivolity Review
a. Standard of Review
If the court allows Plaintiff to proceed in forma pauperis, the complaint should be dismissed on frivolity review. After allowing an application to proceed in forma pauperis, the court must still review the allegations of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B), and 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 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 attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro 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. Barnett, 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).
b. Discussion
Plaintiff alleges she was employed as a CTE teacher by the Robeson County Public Schools, and she brings this action against the Brooks Pierce, Daniel F.E. Smith, II, Public Schools of Robeson County, the Public Schools of Robeson County Board of Education, Michael Mike Smith, Brenda Fairley-Ferebee, Herman Locklear, Freddie Williamson, Angela Faulkner, Everette Teal, Melissa Thompson, Catherine Truitt, Roy Cooper, the Maxton Police Department, the Public Schools of North Carolina, the North Carolina Department of Public Instruction, the North Carolina State Board of Education, and the State of North Carolina. On December 6, 2021, Plaintiff filed a grievance against defendant Freddie Williams, the Superintendent for the Public Schools of Robeson County, and on December 10, 2021, Williams had her state work email blocked, which prevented her from accessing the CTE curriculum and standards she needed to teach CTE. Plaintiff further alleges that she and her seventy-two CTE students were discriminated against, and the emails of white resource teachers were not blocked. Plaintiffs email access was restored on March 1, 2022, and on that day and the following day, Angela Faulkner attempted to conduct a teacher evaluation of Plaintiff, which Plaintiff refused. On March 3, Plaintiff was suspended with pay for ninety days and escorted from the school premises by the Maxton Police Department. Plaintiff alleges she was not provided with information regarding her right to appeal the suspension, Brooks Pierce and the Maxton Police Department were improperly provided with her confidential information, and Brooks Pierce was retained to provide a defense for her coworkers, some of whom were white, but not for her. Plaintiff alleges Defendant violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and the North Carolina Tort Claims Act by interference with contractual obligations and intentional infliction of emotional distress. Plaintiff seeks monetary damages. [DE-1-1].
With respect to Plaintiffs claim for employment discrimination under Title VII, a plaintiff is required to exhaust her administrative remedies by bringing a charge with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. See Walton v. Harker, 33 F.4th 165 (4th Cir. 2022) (citing 42 U.S.C. § 2000e-5(b), (I); 29 U.S.C. § 633a(d)). “The allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (citing Kingv. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). While the charge-filing requirement is not jurisdictional, i.e., it can be forfeited if not timely raised, the requirement is mandatory. See Fort Bend Cnty., Texas v. Davis, __ U.S. __, 139 S.Ct. 1843, 1849-51 (2019); Rios v. City of Raleigh, No. 5:19-CV-00532-M, 2020 WL 5603923, at *7 (E.D. N.C. Sept. 18, 2020). The court may consider affirmative defenses sua sponte when a litigant seeks to proceed in forma pauperis. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 (4th Cir. 2006) (citing Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 953-54 (4th Cir. 1995)). Plaintiff has not alleged that she exhausted her administrative remedies by filing a charge with the EEOC prior to bringing this action. See Francisco Ramos v. Def. Commissary Agency, No. 5:18-CV-380-BO, 2020 WL 1165282, at *1 (E.D. N.C. Mar. 9, 2020) (dismissing Title VII claim where plaintiff did not file a charge with the EEOC), affd, 822 Fed.Appx. 217 (4th Cir. 2020). Accordingly, it is recommended that Plaintiffs Title VII claim be dismissed without prejudice.
With respect to Plaintiffs Fourteenth Amendment due process claim, which the court construes as a claim under 42 U.S.C. § 1983, Plaintiff has failed to state a claim. The Supreme Court explained in Zinermon v. Burch, the relevance of state remedies to a § 1983 claim for violation of procedural due process:
A § 1983 action may be brought for a violation of procedural due process, but here the existence of state remedies is relevant in a special sense. In procedural due process claims, the deprivation by state action of a constitutionally protected interest in “life, liberty, or property” is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Parratt, 451 U.S., at 537, 101 S.Ct., at 1913; Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”). The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate. This inquiry would examine the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law.494 U.S. 113,125-26(1990).
Plaintiff alleges that she was suspended with pay but was not provided a hearing or information regarding the appeals process. [DE-1-1] ¶¶ 11, 19. Under North Carolina law, the superintendent may, under certain circumstances, suspend a teacher with pay for a reasonable period of time, not to exceed ninety days. N.C. Gen. Stat. § 115C-325.5(c). If the superintendent does not initiate dismissal or demotion proceedings against the teacher within the ninety-day period, the teacher must be reinstated immediately. Id. There are notice and hearing procedures regarding the dismissal or demotion of a teacher for cause set forth in N.C. Gen. Stat. § 11 SC-325.6. Plaintiff's complaint alleges that she was suspended with pay for ninety days on March 3, 2022. [DE-1-1] ¶ 11. Plaintiff filed her complaint on March 30, 2022, prior to the end of the ninety-day period, and there is no allegation that dismissal or demotion proceedings had been initiated against her by the superintendent. Thus, under North Carolina state law, Plaintiff was not yet due the hearing which she complains she was not provided. Because an actionable constitutional violation “is not complete unless and until the State fails to provide due process,” Zinermon, 494 U.S. at 126, Plaintiff has failed to state a claim for violation of her due process rights. See Gilreath v. Cumberland Cnty. Bd. of Educ., 253 N.C.App. 238, 798 S.E.2d 438 (2017) (dismissing a teacher's federal procedural due process claim and finding “[t]he statutory scheme set out in N.C. Gen. Stat. § 115C-325 provided Plaintiff with all of the procedural due process to which he was constitutionally entitled,” and the plaintiff failed to take advantage of the process afforded to him). Furthermore, Plaintiffs allegation that she was not aware of the appeal process is belied by her employment contract, which Plaintiff filed in a related action and of which the court takes judicial notice. Plaintiffs employment contract states that “[t]he Board may alter the terms or terminate this Contract pursuant to the provisions and procedures provided in N.C. G.S. 115C-325.1 etseq.” Reavesv. Williamson,No. 7:22-CV-2-FL, [DE-1-5]. N.C. Gen. Stat. § 115C-325 sets forth the procedural process to which Plaintiff is entitled, and Plaintiff has not alleged it is inadequate. Accordingly, it is recommended that Plaintiffs due process claim be dismissed without prejudice.
Finally, Plaintiff asserts claims under the North Carolina Tort Claims Act for interference with contractual obligations and intentional infliction of emotional distress. “Under the North Carolina Tort Claims Act (the “Act”), the Industrial Commission has exclusive jurisdiction over claims against the State, state departments, institutions, and agencies for personal injuries or damages sustained by any person due to the negligence of state officer, agent, or employee acting within the scope of his employment.” Carmona v. North Carolina, No. 3:21 -CV-00211 -MR, 2021 WL 2295517, at *1 (W.D. N.C. May 26, 2021) (citing Guthrie v. State Ports Authority, 307 N.C. 522, 299 S.E.2d 618 (1983)). Plaintiff here asserts claims of intentional rather than negligent conduct. See Parks v. N.C. Dep't of Pub. Safety, No. 5:13-CV-74-BR, 2014 WL 32064, at *5 (E.D. N.C. Jan. 6, 2014) (concluding plaintiff's claim for tortious interference with contractual or prospective business relations was an intentional tort) (citing Blue Ridge Pub. Safety, Inc. v. Ashe, 712 F.Supp.2d 440, 447-48 (W.D. N.C. 2010) (under North Carolina law, tortious interference with contract and tortious interference with prospective economic advantage are intentional torts); Beckv. City of Durham, 573 S.E.2d 183, 190 (N.C. Ct. App. 2002) (same)); Vincent v. N.C. Dep't of Trans., No. 1:20CV51, 2020 WL 5710710, at *11 (M.D. N.C. Sept. 24, 2020) (concluding intentional infliction of emotional distress is an intentional tort) (citing Dickens v. Puryear, 302 N.C. 437, 452-53 (1981)). “The Act. . . does not give the Industrial Commission jurisdiction to award damages based on intentional acts,” and “[a]s such, injuries intentionally inflicted by employees of a state agency are not compensable under the Act.” Id. at *2 (citing Frazier v. Murray, 519 S.E.2d 525, 528 ( N.C. App. 1999)). Accordingly, Plaintiff's claims under the North Carolina Tort Claims Act for interference with contractual obligations and intentional infliction of emotional distress should be dismissed with prejudice.
To the extent Plaintiff seeks to bring claims for interference with contractual obligations and intentional infliction of emotional distress against the individual Defendants in their individual capacities, the court should decline to exercise jurisdiction over these state law claims where Plaintiff has failed to state a federal claim. See 28 U.S.C. § 1367 (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm 'rs of Calvert Cnty., 401 F.3d 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Accordingly, it is recommended the individual capacity state law claims for interference with contractual obligations and intentional infliction of emotional distress be dismissed without prejudice.
III. Conclusion
For the reasons stated herein, it is recommended that Plaintiff's application to proceed in forma pauperis be denied, and alternatively, it is recommended that the complaint be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until June 2, 2022 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).