ALLEN v. MOORE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK ALLEN, )

)

Plaintiff, )

)

) 1:19cv710

v. )

)

ANNETTE MOORE, et al., )

)

Defendants. )

MEMORANDUM OPINION, ORDER, AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the Court on Plaintiff’s Application to

Proceed In Forma Pauperis (the “Application”)(Docket Entry 1) filed

in conjunction with his pro se Complaint (Docket Entry 2). For the

reasons that follow, the Court will grant Plaintiff’s instant

Application for the limited purpose of recommending dismissal of

this action, under 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to

state a claim.

LEGAL STANDARD

“The federal in forma pauperis [‘IFP’] statute, first enacted

in 1892 [and now codified at 28 U.S.C. § 1915], is intended to

guarantee that no citizen shall be denied access to the courts

‘solely because his poverty makes it impossible for him to pay or

secure the costs.’” Nasim v. Warden, Md. House of Corr., 64 F.3d

951, 953 (4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont

de Nemours & Co., 335 U.S. 331, 342 (1948)). “Dispensing with

filing fees, however, [is] not without its problems. Parties

proceeding under the statute d[o] not face the same financial

constraints as ordinary litigants. In particular, litigants suing

[IFP] d[o] not need to balance the prospects of successfully

obtaining relief against the administrative costs of bringing

suit.” Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th

Cir. 2004).

To address this concern, the IFP statute provides, in relevant

part, that “the court shall dismiss the case at any time if the

court determines that the action or appeal fails to state a claim

on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint falls short when it does not “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) (emphasis added) (internal citations omitted) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. In other words, “the tenet that a court must

accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Threadbare recitals of the

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elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.!

BACKGROUND

Asserting claims under “42 U.S.C. § 1983” for violation of his

rights under the “14*" Amendment, Section 1[,] 42 USC[] 3604 [,]

28 USC 4101 [Slander and Libel][,] 42 USC[] 3613(A) □□□ □□ and] 45

USC[] 3619,” Plaintiff initiated this action against four

defendants: (1) “Annette Moore” (“Defendant Moore”), (2) “Melvyn

Blackwell” (“Defendant Blackwell”), (3) “Tara May” (“Defendant

May”), and (4) “Marlyn Valeiko” (“Defendant Valeiko”). (Docket

Entry 2 at 1-3 (brackets around “Slander and Libel” in original).)

The Complaint states the following as the basis for asserting

claims under Section 1983:

The above listed personnel[] are county officials working

for th[e D]epartment of Human [R]Jelations. It is their

job description to investigate housing discrimination.

t Although “[a] document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

citations and quotation marks omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Office of

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint

- . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than

the mere possibility of misconduct.’” (first quoting Erickson, 551

U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).

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The above listed representatives fail[ed] to investigate

[Plaintiff’s] claim of housing discrimination.

(Id. at 4.) The Complaint’s “Statement of Claim” states the

following in its entirety:

[Plaintiff] applied for public housing with the [T]own of

[C]hapel[ H]ill.

. . . [O]n 06/14/2019 [Plaintiff’s] application for

public housing was denied. [Plaintiff] appealed the

decision of Angela Gerald [Housing officer I] on

06/14/2019 and [Plaintiff] met with Director Faith

Thompson on 06/18/2019 in which [Plaintiff] received a[]

rejection letter from Director Faith Thompson on

06/24/2019 appeal.

Director Faith Thompson denied [Plaintiff’s] application

for public [h]ousing based upon information from the

[F]ederal Bureau of Investigation [the “FBI”] . . .

[which revealed that Plaintiff had been] convicted of

[f]raud - [f]alse statement[,] [p]ossession of [a]

weapon[,] and [t]ransportation of firearms[,] which is

not true.

[In] [C]ase No. 1:17-cr-00157[], [Plaintiff] went to

trial and was found not guilty of [] 18 USC[] 922(A)(6)

and was found guilty of [] 18 USC[] 922(G)(8).

[Plaintiff] appealed . . . . Furthermore, [o]fficials at

Human [R]elations in Orange County [f]ailed to

investigate [Plaintiff’s] clai[m] of [h]ousing

[d]iscrimination.

(Id. at 4-5 (brackets around “Housing officer I” in original).)

The Complaint also alleges that Plaintiff has been subjected to

“mental angu[ish and] homelessness” (id. at 5 (emphasis omitted)),

and further requests that, “[i]f the [C]ourt finds [that]

discriminatory housing practices occurred, . . . [that he] be

compensated in the amount of $250,000.00 or . . . an amount that

the [C]ourt [finds] sufficient” (id. at 6).

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In addition, the Complaint appends a (i) letter from the Town

of Chapel Hill informing Plaintiff of his ineligibility for housing

assistance (id. at 8); (ii) the first page of Plaintiff’s criminal

history report (id. at 9); and (iii) a printout of the CM/ECF

criminal docket in United States v. Derrick Michael Allen, Sr., No.

1l:17erl57 (M.D.N.C. Jun. 26, 2019) (id. at 10-18).

DISCUSSION

I. Official Capacity Claims

As an initial matter, to state a claim for relief under

Section 1983, Plaintiff must assert “that [he was] deprived of a

right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999); see also Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir.

2016) (“Section 1983 is not itself a source of substantive rights,

but rather provides a method for vindicating federal constitutional

and statutory rights”) .°

Specifically, Section 1983 provides, in pertinent part,

that

[e]very person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress[.]

(continued...)

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Here, the Complaint seeks damages from all defendants in both

their individual and official capacities based upon their failure

to investigate Plaintiff’s claims of housing discrimination. (See

Docket Entry 2 at 1-7.) As to any official capacity claims,

because the Complaint identifies all defendants as “[o]fficials at

Human [R]lelations in Orange County” (see id. at 2-5), “[s]luch a

claim, in effect is against the governmental entity employing [the

defendants],” Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir.

2006) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). To

establish liability against Orange County under Section 1983, “it

must be shown that the actions of [its employees] were

unconstitutional and were taken pursuant to a custom or policy of

the entity.” Giancola v. State of W. Va. Dep't of Pub. Safety, 830

F.2d 547, 550 (4th Cir.1987) (citing Monell v. New York City Dep’t

of Soc. Servs., 436 U.S. 658, 690-92 (1978)); accord Board of Cty.

Comm’rs of Bryan Cty., Okla., 520 U.S. 397, 403 (1997) (“[L]local

governmental bodies . . . may not be held liable under [Section]

1983 solely because [they] employ[ed] a tortfeasor . .. .

Instead, in Monell and subsequent cases, [the Supreme Court] ha[s]

required a plaintiff seeking to impose liability on a [local

governmental body] under [Section] 1983 to identify a [local

“(...continued)

42 U.S.C. § 1983 (emphasis added).

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governmental] ‘policy’ or ‘custom’ that caused the plaintiff’s

injury.”).

The Complaint alleges no facts showing that any of these

defendants acted pursuant to a policy or custom of Orange County

(Docket Entry 2 at 1-7), and therefore, the Court should dismiss

all official capacity claims (which only seek damages) against

Defendant Moore, Defendant Blackwell, Defendant May, and Defendant

Valeiko.

II. Individual Capacity Claims

A. Lack of Allegations

Beyond naming them as Defendants, the Complaint does not even

so much as mention Defendants Moore, Blackwell, May, and/or

Valeiko. (See id. at 1-7.) Thus, even considered collectively,

the Complaint and its attached documents fail to establish a

Section 1983 claim against Defendants Moore, Blackwell, May, and/or

Valeiko due to the lack of factual matter suggesting that any of

those defendants violated Plaintiff’s constitutional rights. See

American Mfrs., 526 U.S. at 49 (requiring allegations of a

“depriv[ation] of a right secured by the Constitution or laws of

the United States” to state a Section 1983 claim).

Put another way, nothing in the record indicates in any way

that Defendants Moore, Blackwell, May, and/or Valeiko engaged in

any violation of Plaintiff’s constitutional rights as remains

necessary to state a plausible Section 1983 claim. See Iqbal, 556

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U.S. at 679 (“While legal conclusions can provide the framework of

a complaint, they must be supported by factual allegations”). The

Court should therefore dismiss all individual capacity claims

alleged against Moore, Blackwell, May, and Valeiko for failure to

state a claim.

B. Inapplicable Statutes

Further, all of the statutes upon which the Complaint relies

fail to provide for a cause of action in light of the facts

asserted. First, concerning the Complaint’s reliance upon “28

U.S.C. 4101 [Slander and Libel]” (see id. at 3 (brackets in

original)), “that section contains definitions used with respect to

recognition of foreign judgments, which is inapplicable to the

facts of this case and does not provide a private right of action

under [Section] 1983.” Dressler v. Jefferson Cty., WV, No.

2:18CV1126, 2019 WL 1052285, at * 1 n.1 (S.D. W.Va. Jan. 17, 2019)

(unpublished), recommendation adopted, 2019 WL 1053626 (S.D. W.Va.

Mar. 5, 2019) (unpublished).

Next, the remaining statutes concern the Fair Housing Act but,

the Complaint fails to state a claim under the cited statutes

(particularly not against these defendants).3 “The Fair Housing

Act prohibits discrimination in rental housing based on ‘race,

3 The Complaint also alleges a violation of Plaintiff’s rights

under “45 USC[] 3619” (Docket Entry 2 at 3), however, no such

statute exists.

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color, religion, sex, familial status, or national origin.’” Parker

v. Hunting Point Apartments, LLC, No. 1:15cv590, 2015 WL 5247692,

at *3 (E.D. Va. Sept. 8, 2015) (unpublished) (quoting 42 U.S.C. §

3604). “A plaintiff may demonstrate a prima facie case of

discrimination by showing that the challenged practice was

motivated by a discriminatory purpose or had a discriminatory

impact.” Sudduth v. Vasquez, No. 1:08cv1106, 2009 WL 211572, at *2

(E.D. Va. Jan. 26, 2009) (unpublished) (emphasis in original)

(quoting Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986 (4th

Cir. 1984)).

The Complaint offers no facts showing that Defendants

discriminated against Plaintiff “based on his ‘race, color,

religion, sex, familial status, or national origin.’” Parker, 2015

WL 5247692, at *3 (quoting Section 3604). The Complaint lacks any

factual allegations concerning discrimination aside from its

conclusory assertion that Defendants failed to “investigate

[Plaintiff’s] clai[m] of [h]ousing [d]iscrimination” (Id. at 5.)

Put simply, merely invoking the term “discrimination” does not

suffice to state a claim under the Fair Housing Act. See, e.g.,

Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions.”). Further, the allegations

that the Complaint does set forth appear to relate to alleged

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discriminatory practices of the Town of Chapel Hill, not the

actions (or inaction) of Defendants. (See Docket Entry 2 at 4-5.)

In any event, the Complaint alleges that the Town of Chapel

Hill denied Plaintiff’s public housing application “based upon

information from the [FBI, which revealed that Plaintiff had been]

convicted of [f]raud - [f]alse statement[,] [p]ossession of [a]

weapon[,] and [t]ransportation of firearms[,] which is not true.”

(id. at 5; see also id. at 8.) Therefore, according to the

Complaint, the denial of Plaintiff’s rental application resulted

from a mistaken description of Plaintiff’s criminal history, not

discrimination “based on ‘race, color, religion, sex, familial

status, or national origin,’” Parker, 2015 WL 5247692, at *3

(quoting Section 3604).

Accordingly, the Court should dismiss Plaintiff’s claims, to

the extent they rely upon the cited statutes, for failure to state

a claim.

CONCLUSION

The Complaint does not allege that a policy or custom of

Orange County caused any constitutional deprivation by Defendants

Defendants Moore, Blackwell, May, and Valeiko, and/or any

discriminatory conduct by Defendants Moore, Blackwell, May, and

Valeiko. Further, the Complaint fails to show that the denial of

Plaintiff’s rental housing application resulted from discriminatory

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housing practices, much less that any of the cited statutes provide

any claim against the named defendants.

IT IS THEREFORE ORDERED that Plaintiff’s Application for Leave

to Proceed In Forma Pauperis (Docket Entry 1) is GRANTED FOR THE

LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION

OF DISMISSAL.

IT IS RECOMMENDED that this action be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

January 13, 2020

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