# ALLEN v. MOORE

> District Court, M.D. North Carolina · January 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10253460

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** January 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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...)
-5-

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).
-~6-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253460. Public record. Not legal advice.