Opinion

Foster v. Asheville Buncombe Community Christian Ministry

Court
District Court, W.D. North Carolina
Filed
Apr 24, 2023
Cited by
0 cases
Authority
More cited than 24.9%

dismissing complaint where allegations of race discrimination did “not raise above speculation”

How later courts described this case

  • dismissing complaint where allegations of race discrimination did “not raise above speculation”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:23-cv-00101-MR-WCM

HOWARD JEROME FOSTER, )

)

Plaintiff, )

)

vs. ) O R D E R

)

ASHEVILLE BUNCOMBE )

COMMUNITY CHRISTIAN MINISTRY, )

ANDREA ARRINGTON, FNU )

ALVERAZ, and TIM McELYEA, )

)

Defendants. )

)

________________________________ )

THIS MATTER is before the Court on review of the Plaintiff’s

Complaint [Doc. 1] and the Plaintiff’s Application to Proceed in District Court

Without Prepaying Fees or Costs [Doc. 2].

I. BACKGROUND

The Plaintiff brings this action against Defendants Asheville Buncombe

Community Christian Ministry (ABCCM); Andrea Arrington, the general

manager of ABCCM; and FNU Alveraz and Tim McElyea, directors of

ABCCM. While the Plaintiff does not identify any specific cause of action,1

he alleges as follows:

During the course of my employment, I was subjected to hostility,

harassment, and discrimination on the basis of my religion by

Andrea Arrington, Mr. Alveraz, and Tim McElyea. General

Manager, Mr. Arrington was unprofessional with me, eliminated

my office while others continued to have one, eliminated several

of my job duties, and told employees/clients afterwards to come

to me to be managed. On or around October 12, 2022, I was

discharged for alleged complaints of harassment by clients.

[Doc. 1 at 4] (errors uncorrected).

For relief, the Plaintiff requests an award of $20,000,000 in damages.

[Id. at 5].

II. STANDARD OF REVIEW

Because the Plaintiff, who is proceeding pro se, seeks to proceed in

forma pauperis, the Court must examine the pleadings to determine whether

this Court has jurisdiction and to ensure that the action is not frivolous or

malicious and states a claim upon which relief can be granted. See 28

U.S.C. § 1915(e)(2)(B)(i) and (ii); see also Michau v. Charleston County,

1 In drafting his Complaint, the Plaintiff used a complaint form designed to address civil

rights violations under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). If the Plaintiff filed an amended

complaint, he should use a complaint form designed to address employment

discrimination claims. The Court will direct the Clerk to provide a copy of this form to the

Plaintiff.

2

S.C., 434 F.3d 725, 728 (4th Cir. 2006) (noting that § 1915(e) “governs IFP

filings in addition to complaints filed by prisoners”). A complaint is deemed

frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke

v. Williams, 490 U.S. 319, 325 (1989). The Fourth Circuit has offered the

following guidance to a court tasked with determining whether a complaint is

frivolous under § 1915(e):

The district court need not look beyond the

complaint’s allegations in making such a

determination. It must, however, hold the pro se

complaint to less stringent standards than pleadings

drafted by attorneys and must read the complaint

liberally. Trial courts, however, are granted broad

discretion in determining whether a suit is frivolous or

malicious.

White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). While the complaint

must be construed liberally, the Court may “pierce the veil of the complaint's

factual allegations and dismiss those claims whose factual contentions are

clearly baseless,” including such claims that describe “fantastic or delusional

scenarios.” Neitzke, 490 U.S. at 327, 328.

Rule 8 of the Federal Rules of Civil Procedure provides that “[a]

pleading states a claim for relief must contain (1) a short and plain statement

of the grounds for the court's jurisdiction ... [and] (2) a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

3

Civ. P. 8(a)(1), (2). A complaint fails to state a claim where 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.”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 557 (2007) (internal quotation marks omitted)).

III. DISCUSSION

A. Application to Proceed with Prepaying Fees or Costs

The Plaintiff seeks to proceed with this civil action without having to

prepay the costs associated with prosecuting the matter. [Doc. 2]. The

Plaintiff’s application, however, fails to provide all of the information that the

Court requires to determine whether the Plaintiff has sufficient resources

from which to pay the filing fee for this action. Consequently, the Plaintiff’s

application is denied without prejudice. Should the Plaintiff refile his

application, he should use the Application to Proceed in District Court without

Prepaying Fees or Costs (Long Form) (AO 239). The Court will direct the

Clerk to provide a copy of AO 239 to the Plaintiff.

B. Section 1915 Review of Complaint

To prove a claim of disparate treatment under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., an employee must first allege

that the employer treated him differently than other employees because of

4

his religious beliefs. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012,

1017 (4th Cir. 1996). In so doing, the plaintiff must assert “a set of facts which

would enable the fact-finder to conclude, in the absence of any further

explanation, that it is more likely than not that the adverse employment action

was the product of discrimination.” See Ennis v. National Ass'n of Bus. &

Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). Here, the Plaintiff alleges

only conclusory and speculative allegations of religious discrimination; he

fails to allege any plausible set of facts to show that it is more likely than not

that he was subjected to adverse employment actions because of his

religious beliefs. See Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190-91

(4th Cir. 2010) (dismissing complaint where allegations of race discrimination

did “not raise above speculation”). Additionally, the Plaintiff names the

general manager and two directors of ABCCM as defendants; however,

individuals are immune from suit under Title VII unless they qualify as an

“employer” under the statute. See Lissau v. S. Food Serv., Inc., 159 F.3d

177, 181 (4th Cir. 1998) (holding that individual supervisors are not liable for

violations of Title VII). For all these reasons, the Court concludes that the

Complaint fails to state a claim upon which relief can be granted.

When a Court determines upon a § 1915(e) review that a complaint is

factually or legally baseless, the Court must dismiss the case. See Neitzke,

5

490 U.S. at 328; White, 886 F.2d at 724. It is the intent of Congress that

such dismissals occur prior to service of the complaint on defendants.

Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996). As such, the Court

will dismiss this civil action without prejudice.

Before dismissing this action, however, the Court will allow the Plaintiff

an opportunity to amend his Complaint to correct the deficiencies identified

by this Order and to state a plausible claim against the Defendants. The

amended complaint must contain all of the Plaintiff’s claims and allegations;

piecemeal amendment of the Complaint will not be permitted.

IT IS, THEREFORE, ORDERED that the Plaintiff’s Application to

Proceed in District Court Without Prepaying Fees or Costs [Doc. 2] is

DENIED WITHOUT PREJUDICE. The Plaintiff shall have thirty (30) days

from the entry of this Order to file a renewed Application, using AO 239 (long

form).

IT IS FURTHER ORDERED that the Plaintiff shall have thirty (30) days

in which to amend his Complaint in accordance with the terms of this Order.

If the Plaintiff fails to amend the Complaint in accordance with this

Order and within the time limit set by the Court, this action will be

dismissed without prejudice and without further notice to the Plaintiff.

6

The Clerk of Court is respectfully directed to provide an Application to

Proceed in District Court without Prepaying Fees or Costs (Long Form) (AO

239) and a Complaint for Employment Discrimination (Pro Se 7) to the

Plaintiff along with this Order.

IT IS SO ORDERED.

Signed: April 21, 2023

Martifi Reidinger ee

Chief United States District Judge “AES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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