Opinion
5:22-CV-436-BO-BM
11-27-2023
JOE E. TEAGUE, JR., Plaintiff, v. ARTHUR L. GEPNER for CHEROKEE FEDERAL d/b/a CN3S, et al. Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court on the application by plaintiff Joe E. Teague, Jr. (“plaintiff”) to proceed in forma pauperis [DE-1] and for a frivolity review of the complaint [DE-1-1] pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1). The court finds that plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, based on the court's frivolity review and for the reasons stated below, the undersigned RECOMMENDS that plaintiff's complaint [DE-1-1] be DISMISSED.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “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.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's application and finds that he has adequately demonstrated his inability to prepay the required court costs. His motion to proceed in forma pauperis [DE-1] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. FACTUAL BACKGROUND AND CLAIMS
Plaintiff's complaint is somewhat difficult to follow. The description of the acts about which plaintiff complains begins as follows:
terminating my employment contract as federal employee on CN3S contract at Cherry Point prematurely after it had just been extended 9/28/21 as required by MCAS CP Facilities Directorate after AG let the contract lapse by all indications on purpose The CN3S contract was aggressively opposed by [Mr. Arthur Gepner (“Mr. Gepner”)] since he arrived 4/2021 replacing CN3S Program Mgr predecessor who hired me thru Flux. Lack of support effectively sabotaged contract so that roughly 3/4 of some 17 employees were lost at end of first year of contract. Contract was a 5 year contract renewable annually on occasion of each federal fiscal year 10/1.Compl. [DE-1-1] at 2.
Much of the rest of the complaint goes on to explain the nature of the contractors' work at Marine Corps Air Station Cherry Point (“Cherry Point”) and its overall merits. See id. at 2-3 (“We were essential. No project can be built without the survey and the flood plain....Constructive termination. Big loser was USDOD.”). The crux of plaintiff's legal claim appears to be that his “employment contract as federal employee on CN3S contract at Cherry Point [was] prematurely [terminated]” due to his failure to take the COVID-19 vaccine. Compl. [DE-1-1] at 2; [DE-1] at 5. He alleges that the termination resulted from the fact that his employer was unaware of or chose not to honor the fact that he had an approved religious exemption. See Compl. [DE-1-1] at 2 (“My religious exemption for covid vaccination was approved by . . . Flux and may not have been known to Mr Gepner.”).
Plaintiff's civil cover sheet suggests that he seeks to bring his claim under 42 U.S.C. §1983. [DE-1-2] (Civ. Cover Sheet § VI Cause of Action - listing “42USC 1983 deprivation of rights with injunctive relief” as the cause of action). The relief plaintiff seeks includes resuming his job “as Civil Engineer at MCAS Cherry Point,” or in the alternate, “at least $10 million.” [DE-1-1] at 3.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), report and recommendation adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here, the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject 4 matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
Having granted plaintiff's application to proceed in forma pauperis, the court must now undertake the frivolity review of this case pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), a court shall dismiss a case if the action is: “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Based upon the court's review and for the reasons stated below, the undersigned recommends this matter be dismissed in its entirety as frivolous and failing to state a claim.
Plaintiff's filing suggests that Cherokee Federal, known as CN3S, (“CN3S”) and Flux Resources LLC were federal contractors working on a United States military installation. See [DE-1-1] at 2 (noting that plaintiff was working under a CN3S contract at Cherry Point). 42 U.S.C. §1983 “does not provide a cause of action against a federal official or contractor . . . [as it] only applies to state actors acting under color of state law, not federal actors acting under color of federal law.” Irving v. PAE Gov't Servs., Inc., 249 F.Supp.3d 826, 835 (E.D. Va. 2017) (citing Hindman v. Healy, 278 Fed.Appx. 893, 895 (11th Cir. 2008)). As plaintiff has not alleged any facts to suggest that the defendants were acting under state law, plaintiff has failed to state a claim on which relief may be granted 42 U.S.C. §1983.
B. State Action
It is possible that plaintiff intended to bring a Free Exercise claim under the First Amendment to the United States Constitution. For defendants to be liable for any such claim, they would have to be state actors. See Ciraci v. J.M. Smucker Co., 62 F.4th 278, 280-82 (6th Cir. 2023) (dismissing a Free Exercise claim against a federal contractor for denying a COVID-19 vaccine religious exemption due to a failure to show that the federal contractor was a state actor). “[A] private entity can qualify as a state actor . . . (i) when the private entity performs a traditional, exclusive public function, . . . (ii) when the government compels the private entity to take a particular action, . . .; or (iii) when the government acts jointly with the private entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1928, 204 L.Ed.2d 405 (2019).
The undersigned takes judicial notice of the fact that the federal government uses contractors extensively on United States military installation construction projects. See U.S. Government Accountability Office DOD Construction Contracts: Contractor Proximity to Work Sites Varied, available at https://www.gao.gov/products/gao-23-106035 (last visited November 14, 2023) (“[The Department of Defense] spends billions on U.S. military installation construction projects, such as building barracks and road repairs [and] must consider factors like promoting competition and small businesses when awarding construction contracts.”). Accordingly, there can be no claim that the defendants were performing a traditional, exclusive public function. Cf. PNC Bank, Nat. Ass'n v. U.S. Army Corps of Engineers, No. 2:13-CV-374-JVB-JEM, 2015 WL 880596, at *6 (N.D. Ind. Mar. 2, 2015) (finding that a construction company contractor acting under the direction and the authority of, inter alia, the U.S. Army Corps of Engineers to implement a flood protection control policy was not a state actor). Courts have even found that activities more closely tied to traditional federal government defense responsibilities, such as the repair of military aircraft, do not present such functions. See Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th Cir. 1987) (finding that even if “repair and maintenance of military aircraft or facilities may ‘traditionally' have been a function of the government, it is hardly one of the government's ‘exclusive prerogatives.'”).
Next, while the federal government did create a mandate in 2021 for federal contractors to receive the COVID-19 vaccination, this mandate included exceptions for disability or religious objections. See Kentucky v. Biden, 23 F.4th 585, 589-90 (6th Cir. 2022). Plaintiff does not claim that he was denied a religious exemption, but rather that Mr. Gepner's termination of plaintiff for unsatisfactory performance was, in fact, a pretense to terminate plaintiff for failing to receive the COVID-19 vaccination despite plaintiff's religious exemption. Compl. [DE-1-1] at 3. Even if the theory of a pretextual basis for plaintiff's termination is accepted, plaintiff has not alleged that the government participated in such a pretext or otherwise encouraged contractors to deny religious exemptions. See Ciraci, 62 F.4th at 280 (“[T]he government did not compel [the defendant] to deny anyone an exemption [to the federal contractor COVID-19 vaccine mandate”]). Similarly, plaintiff has not alleged facts indicating that the government was acting jointly with the defendants to deny any exemptions or terminate plaintiff for pretextual reasons. Accordingly, plaintiff has not alleged that defendants engaged in state action, thereby subjecting them to any constitutional claims.
Plaintiff appears to infer this rationale based on two premises: (1) that he allegedly had no unsatisfactory performance reviews and (2) that he was terminated on the same day on which the United States Marine Corps Reserves were required to be vaccinated (presumably against COVID-19). See Compl. [DE-1-1] at 3. Plaintiff does not allege that he was a member of the United States Marine Corps Reserves. See id.
C. Title VII
Plaintiffs in other cases involving religious discrimination surrounding a vaccine mandate have brought such claims, inter alia, under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Zettervall v. Zachary Piper Sols., LLC, No. 123CV206LMBWEF, 2023 WL 3568089, at *1 (E.D. Va. May 5, 2023) (bringing, inter alia, a Title VII claim against his former employer due to his alleged termination for “obtain[ing] a religious exemption from the COVID-19 vaccination mandate”). Even if plaintiff had so alleged, as he does not provide a copy of a right-to-sue letter from the EEOC, any such claim would have failed. See Williams v. United Steel Workers of Am. Loc. 1481, No. 7:10-CV-233-FL, 2010 WL 5582471, at *2 (E.D. N.C. Dec. 6, 2010), report and recommendation adopted, No. 7:10-CV-233-FL, 2011 WL 126909 (E.D. N.C. Jan. 14, 2011) (“[B]y failing to include a right-to-sue letter with the complaint, Plaintiff has failed to comply with the jurisdictional prerequisites pursuant to Title VII.”). Accordingly, plaintiff has failed to plead a cognizable Title VII claim in this case.
For the avoidance of doubt, plaintiff does not allege a Title VII violation. The undersigned points to these cases simply to show that even under a Title VII framework, plaintiff's claim would have failed.
D. Garvey v. City of New York
Plaintiff appears to cite to the case of Garvey v. City of New York, 77 Misc.3d 585, 589, 180 N.Y.S.3d 476, 480 (N.Y. Sup. Ct. 2022), in support of his claim. See Compl. [DE-1-1] at 3 (“On [October 24, 2022,] New York Supreme Court decided from employees terminated for declining mandated covid 19 vaccine for among other reasons holding religious exemption [sic] as i do”). While New York state case law would, at best, have persuasive authority for this court, that case is inapposite. Garvey was brought under the New York Civil Practice Law and Rules (“CPLR”) governing agency determinations, which do not apply here. See Garvey, 180 N.Y.S.3d at 482. Accordingly, even if the court found the reasoning in Garvey persuasive, it would not cure the deficiencies in plaintiff's claim identified above.
E. Deficient pleading
In addition to the flaws identified above, plaintiff fails to allege any actual conduct by any of the defendants except for Mr. Gepner. See generally Compl. [DE-1-1]. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, 8 No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016). The court finds plaintiff's statement of his claims against these other defendants to be insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8. Accordingly, claims against these individuals should additionally be dismissed for this reason.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED as frivolous and for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), respectively.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until December 15, 2023, to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiff 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).