Opinion
5:24-CV-35-M
03-27-2024
ERICA RENEE WATKINS, Plaintiff, v. SECRETARY OF VETERANS AFFAIRS, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on Plaintiffs application to proceed in forma pauperis and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). [DE-1, -2]. Plaintiff has failed to demonstrate evidence of inability to pay the required court costs, and her claim is time barred. Accordingly, it is recommended that the application to proceed in forma pauperis be denied and that the complaint be dismissed.
I. STANDARD OF REVIEW
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 they 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. L02-CV-556, L02-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 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 they are “absolutely destitute.” Id.
Even if IFP status is granted, the court must still review the allegations of a 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). 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; 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.'”).
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 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).
II. ANALYSIS
Based on the information provided by Plaintiff regarding her current financial status, she has failed to demonstrate sufficient evidence 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 earns $4,000-$5,000 a month from her employment, her income exceeds her expenses, and she has more than the amount of the filing fee in a bank account. [DE-2], 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). Accordingly, it is recommended that Plaintiffs application to proceed in forma pauperis be denied and that Plaintiff be required to tender to the clerk the filing and administrative fees of $405.00 should her complaint be allowed to proceed.
Furthermore, based on the allegations of the complaint, Plaintiff did not file her complaint within ninety days of receiving a right to sue notice from the Equal Employment Opportunity Commission (“EEOC”), and thus, her Title VII claim is time barred and should be dismissed. Plaintiff alleges a claim for employment discrimination under Title VII of the Civil Rights Act of 1964. Title VII prohibits an employer from “discharg[ing] any individual, or otherwise . . . discimin[ating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . .” 42 U.S.C.A. § 2000e-2(a). Plaintiff alleges that she was employed by Defendant from September 2012 until her employment was terminated on November 19, 2022, and that she experienced race and disparate treatment discrimination. Plaintiff also alleges that she filed a charge with the EEOC on September 13,2023, and that she received a notice of right to sue letter on October 19,2023, [DE-1-2] at 1-4. Plaintiff seeks back pay and reinstatement. See Compl. [DE-1], Before filing a suit under Title VII, a plaintiff is required to exhaust administrative remedies by filing a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Mason v. Walmart Stores, Inc., No. 5:23-CV-226-D, 2024 WL 497137, at *3 (E.D. N.C. Feb. 8, 2024) (citing Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1846 (2019)). A complaint must be filed in federal court within ninety days of receiving a notice of right to sue letter from the EEOC. Lassiter v. N.C. Cmty. Health Ctr. Ass'n, 367 F.Supp.3d 435, 438 (E.D. N.C. 2019) (citing 42 U.S.C. § 2000e-5(f)(1)). A claim is time barred if not filed within the statutory time limit. See Wilson v. Daly Seven, Inc., No. 5:15-CV-610-FL, 2018 WL 1800853, at *3 (E.D. N.C. Apr. 16, 2018) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)), aff'd, 740 Fed.Appx. 286 (4th Cir. 2018). In Fort Bend County v. Davis, the Supreme Court held that while the administrative exhaustion requirement is not a jurisdictional issue and thus may be waived, it is mandatory and can serve as grounds for dismissal when timely raised by a defendant. 139 S.Ct. at 1850-52. However, 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 alleges in the complaint that she received a notice of right to sue letter from the EEOC on October 19, 2023. Compl. [DE-1 ] at 4; [DE-1-2] at 1-4. Plaintiff filed her complaint in this court on Thursday, January 18,2024, which is ninety-one days after she received the notice. The Fourth Circuit has held that a filing made one day outside the ninety-day period is time barred and may result in dismissal absent reasonable grounds for equitable tolling. See Harvey v. New Bern Police Dep't, 813 F.2d 652, 653-54 (4th Cir. 1987). Plaintiff did not file a civil action within ninety days from the date she received notice of her right to sue and has alleged no facts in the complaint to support equitable tolling; thus, her Title VII claim is time barred. See Addison-Potts v. ECU Health Med. Ctr., No. 4:23-CV-103-FL, 2023 WL 5183009, at *1 (E.D. N.C. Aug. 11, 2023) (finding complaint, filed ninety-one days after receipt of EEOC notice, is time barred where there was no allegation that grounds existed for equitable tolling), aff'd, No. 23-1953, 2023 WL 8826947 (4th Cir. Dec. 21, 2023); Ndiaye v. Austin, No. 5:20-CV-00486-BO, 2021 WL 2096063, at *3 (E.D. N.C. Apr. 13, 2021) (finding complaint filed ninety-one days after receipt of right to sue letter was time barred), adopted by 2021 WL 2080198 (E.D. N.C. May 24,2021). Accordingly, it is recommended that the complaint be dismissed.
III. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Plaintiffs application to proceed in forma pauperis be DENIED and that the complaint be DISMISSED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until March 1, 2024 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-*17 (4th Cir. 1985).