# Gallant v. Mattress Giant Corp.

> District Court, N.D. West Virginia · December 1, 2017

URL: https://www.frixlaw.com/law-library/cases/10724847

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** December 1, 2017
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10724847

## How later opinions describe it (automated extraction)

- holding that a dismissal for lack of subject matter jurisdiction “must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits”
- noting that a dismissal under § 1915(e)(2)(B) is a dismissal without prejudice

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

DELTORIA GALLANT,

Plaintiff,

v. CIVIL ACTION NO.: 3:17-CV-136
(GROH)

MATTRESS GIANT CORP.,
d/b/a MATTRESS FIRM,

Defendant.

REPORT AND RECOMMENDATION

I. INTRODUCTION
Pending before the Court is Plaintiff Deltoria Gallant’s (“Plaintiff”) pro se Motion
[ECF No. 2] for Leave to Proceed In Forma Pauperis.1 Because Plaintiff seeks to
proceed in forma pauperis, the undersigned must conduct a preliminary review to
determine whether Plaintiff’s pro se Complaint [ECF No. 1] sets forth any viable claims.
See 28 U.S.C. § 1915(e)(2)(B). Because the undersigned concludes that this Court
lacks subject-matter jurisdiction over Plaintiff’s Title VII claims and the remainder of
Plaintiff’s Complaint fails to state a claim upon which relief can be granted, the
undersigned recommends that Plaintiff’s Complaint be dismissed, without prejudice, and
Plaintiffs’ motion to proceed in forma pauperis be denied as moot.
II. THE COMPLAINT
Before filing her complaint, Plaintiff worked (or perhaps still works) for Mattress

1 This motion was referred to the undersigned by order dated November 8, 2017. Order of Referral, ECF
No. 4.
Giant Corp. d/b/a Mattress Firm (“Mattress Firm”), presumably within the Northern
District of West Virginia. During her employment, Plaintiff allegedly reported
witnessing and experiencing gender and race based discrimination and harassment to
her supervisors. In turn, Plaintiff claims that Mattress Firm retaliated against her for
making said reports by repeatedly denying her adequate training. Plaintiff also claims

that she was, among other things, threatened, verbally assaulted, and held against her
will.
On November 7, 2017, Plaintiff filed the instant pro se Complaint alleging (1)
gender and race based discrimination, (2), harassment, (3) hostile work environment,
(4) retaliation, (5) illegal interrogation, (6) false imprisonment, (7) civil conspiracy, and
(8) slander or libel. As a result, Plaintiff claims that Mattress Firm damaged her
character and now she suffers from post-traumatic stress disorder (“PTSD”),
depression, and anxiety. To compensate her for her damages, Plaintiff seeks $150,000
in damages, a written apology, and corrections to her employment record.

The undersigned addresses each claim, in turn, below.
III. DISCUSSION
A. Legal Standard
When filing a lawsuit in federal court, the plaintiff is required to pay certain filing
fees. The court has the authority to allow a case to proceed without the prepayment of
fees “by a person who affirms by affidavit that he or she is unable to pay costs . . . .”
L.R. Gen. P. 3.01. The plaintiff files this affidavit along with her request or motion for
leave to proceed in forma pauperis. Id. The Supreme Court of the United States has
explained that the purpose of the “federal in forma pauperis statute . . . is designed to
ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
When a plaintiff seeks to proceed in forma pauperis, the court conducts a
preliminary review of the lawsuit before allowing the case to proceed. See 28 U.S.C. §
1915(e). This includes cases filed by non-prisoners. See Michau v. Charleston Cty.,

S.C., 434 F.3d 725, 727 (4th Cir. 2006) (holding that the district court did not abuse its
discretion when it dismissed the non-prisoner complaints under 28 U.S.C. §
1915(e)(2)(B)). The court must dismiss a case at any time if the court determines that
the complaint is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. § 1915(e)(2)(B). A case is often dismissed sua sponte (i.e., on the
court’s own decision) before the defendant is notified of the case “so as to spare
prospective defendants the inconvenience and expense of answering such complaints.”
Neitzke, 490 U.S. at 324. When reviewing pro se complaints, the Court must construe

them liberally. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
As stated above, under the federal in forma pauperis statute, the court may
dismiss a case if the complaint is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A complaint is
frivolous if it is without “an arguable basis either in law or fact.” Neitzke, 490 U.S. at 325.
A complaint filed in forma pauperis which fails to state a claim under Federal Rule of
Civil Procedure 12(b)(6) is not automatically frivolous. See id. at 328. Cases should only
be dismissed as frivolous when the legal theories are “indisputably meritless,” or where
the claims rely on factual allegations which are “clearly baseless.” Id. at 327; see also
Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims where the plaintiff
has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The federal in forma pauperis statute allows a court to sua sponte dismiss a
complaint that “fails to state a claim on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). The Federal Rules of Civil Procedure “require[ ] only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). Although a complaint need not assert “detailed factual allegations,” it
must contain “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). To survive
dismissal for failure to state a claim, the complaint must raise a right to relief that is
more than speculative. Id. In other words, the complaint must contain allegations that
are “plausible” on their face, rather than merely “conceivable.” Id. at 555, 570.

Therefore, in order for a complaint to survive dismissal for failure to state a claim, the
plaintiff must “allege facts sufficient to state all the elements of [his or] her claim.” Bass
v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v.
Microsoft Corp., 309 F.3d 193, 213 (4th Cir.2002); Iodice v. United States, 289 F.3d
279, 281 (4th Cir. 2002). A “claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Thus,
a well-pleaded complaint must offer more than “a sheer possibility that a defendant has
acted unlawfully” in order to meet the plausibility standard and survive dismissal for
failure to state a claim. Id.; see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009).
B. Lack of Subject-Matter Jurisdiction
If a “court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Brickwood Contractors, Inc.

v. Datanet Eng'g, Inc., 369 F.3d 385, 390 (4th Cir. 2004) (stating that “questions of
subject-matter jurisdiction may be raised at any point during the proceedings and may
(or, more precisely, must) be raised sua sponte by the court”). Subject-matter
jurisdiction in federal courts must be based on diversity jurisdiction or federal-question
jurisdiction. 28 U.S.C. §§ 1331, 1332. Diversity jurisdiction has two requirements: First,
there must be complete diversity of citizenship, meaning that each plaintiff is a citizen of
a different state than each defendant. 28 U.S.C. § 1332. Second, the amount in
controversy must exceed $75,000.00. Id. By contrast, federal-question jurisdiction only
requires that the action “aris[e] under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. Pursuant to the well-pleaded complaint rule, “a federal
question must appear on the face of [the] plaintiff’s . . . complaint.” Sharp v. AT & T
Commc'ns, 660 F. Supp. 650, 650 (N.D. W. Va. 1987).
Here, Plaintiff claims that Mattress Firm (and presumably its employees)
engaged in gender and race based discrimination, retaliation, and harassment and
permitted a hostile work in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (2012).2 Specifically, Plaintiff claims that Mattress Firm retaliated

2 Although Plaintiff’s Complaint does not specifically mention Title VII, the undersigned liberally construes
Plaintiff’s claims as Title VII claims because she alleges gender and race based discrimination, retaliation,
harassment, and a hostile work environment. The undersigned does not construe these claims as claims
against her for reporting said discrimination and harassment by repeatedly denying her
adequate training.
This Court, however, lacks subject-matter jurisdiction to address Plaintiff’s Title
VII claims of gender and race based discrimination and retaliation. Although “Title VII
. . . creates a federal cause of action for employment discrimination,” a claimant must

exhaust the administrative procedures enumerated in 42 U.S.C. § 2000e-5(b) before a
federal court may assume jurisdiction. Davis v. N.C. Dept. of Correction, 48 F.3d 134,
136–37 (4th Cir. 1995). Those procedures “include an investigation of the complaint and
a determination by the [Equal Employment Opportunity Commission (“EEOC”)] as to
whether ‘reasonable cause’ exists to believe that the charge of discrimination is true.”
Id. at 137; see also 42 U.S.C. § 2000e-5(b). In addition, if “state law protects persons
against the kind of discrimination alleged, ‘complainants are required to resort’ to ‘state
and local remedies’ before they may proceed to the EEOC, and then to federal court, on
their claims of discrimination under federal law.” Id. (quoting N.Y. Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 62 (1980)); see also id. at 65 (“Initial resort to state and local
remedies is mandated, and recourse to the federal forums is appropriate only when the
State does not provide prompt or complete relief.” (emphasis added) (citation omitted));
42 U.S.C. § 2000e-5(c) (“[N]o charge may be filed [with the EEOC] under subsection (b)
of this section by the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State or local law, unless such
proceedings have been earlier terminated.”).

pursuant to 42 U.S.C. § 1981, because Mattress Firm’s alleged conduct was not “under color of State
law.”
In short, “a failure by the plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.”
Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing Davis, 48 F.3d at
138–40). Because Plaintiff does not indicate whether she has exhausted her remedies
under state law or through the EEOC, this Court is deprived of subject-matter

jurisdiction to hear her Title VII claims. Accordingly, Plaintiff’s Title VII claims must
dismissed, without prejudice. See S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (holding that a
dismissal for lack of subject matter jurisdiction “must be one without prejudice, because
a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the
merits”).
C. Plaintiff Fails to State a Claim Upon Which Relief Can be Granted3
i. Illegal Interrogation
Next, Plaintiff claims that she was the victim of an “illegal interrogation” while she

was employed by Mattress Firm. As set forth above, a complaint need not assert
“detailed factual allegations,” but it must contain “more than labels and conclusions” or
“a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555
(citations omitted). Here, there is no doubt that Plaintiff’s statement that she “was
subjected to an illigal [sic] interrogation” is nothing but conclusory. Because Plaintiff’s
claim is nothing more than a conclusory allegation without any supporting facts, Plaintiff
fails to state a claim upon which relief can be granted. Accordingly, Plaintiff’s illegal

3 Liberally construing the Complaint, this Court has jurisdiction over Plaintiff’s remaining claims pursuant
to 28 U.S.C. § 1332 because Plaintiff is a citizen of Maryland, Mattress Firm is a citizen of Texas, and the
amount-in-controversy exceeds $75,000. Although it is not clear whether venue is proper, the
undersigned need not decide the issue because even if venue is proper, Plaintiff’s Complaint
nevertheless fails to state a claim upon which relief can be granted.
interrogation claim must be dismissed, without prejudice. See 42 U.S.C. §
1915(e)(2)(B)(ii); see also Nagy v. FMC Butner, 376 F.3d 252, 258 (4th Cir. 2004)
(noting that a dismissal under § 1915(e)(2)(B) is a dismissal without prejudice).
ii. False Imprisonment
Plaintiff claims that Mattress Firm falsely imprisoned her during her employment.

Again, although a complaint need not assert “detailed factual allegations,” it must
contain “more than labels and conclusions” or “a formulaic recitation of the elements of
a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). Here, there is similarly
no doubt that Plaintiff’s bare-bone allegation that she was “held against [her] will” is
nothing more than conclusory. Without more, Plaintiff’s allegation fails to state a claim
upon which relief can be granted. Because Plaintiff fails to state a claim upon which
relief can be granted, Plaintiff’s claim must be dismissed, without prejudice. See 42
U.S.C. § 1915(e)(2)(B)(ii); see also Nagy, 376 F.3d at 258 (noting that a dismissal under
§ 1915(e)(2)(B) is a dismissal without prejudice).

iii. Civil Conspiracy
Plaintiff also claims that she “was the victim of a conspiracy involving Mattress
Firm employees.” Although a complaint need not assert “detailed factual allegations,” it
must contain “more than labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). Here,
Plaintiff’s conclusory allegation of conspiracy falls woefully short of “pleading factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. Again, without more,
Plaintiff fails to state a claim upon which relief can be granted. Accordingly, Plaintiff’s
conspiracy claim must be dismissed, without prejudice. See 42 U.S.C. §
1915(e)(2)(B)(ii); see also Nagy, 376 F.3d at 258 (noting that a dismissal under §
1915(e)(2)(B) is a dismissal without prejudice).
iv. Libel or Slander
Plaintiff claims that Mattress Firm damaged her professional reputation. She

contends, among other things, that her professional reputation was damaged when she
was accused of taking money without a proper investigation.
Under West Virginia law, slander, which is simply defamation
through oral means, or libel, which is the written form of
defamation, Greenfield v. Schmidt Baking Co., Inc., 199 W.
Va. 447, 455, 485 S.E.2d 391, 399 (1997), requires proof of
the elements of defamation, as previously set forth by this
Court in syllabus point one of Crump v. Beckley
Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983):
“The essential elements for a successful defamation action
by a private individual are (1) defamatory statements; (2) a
nonprivileged communication to a third party; (3) falsity; (4)
reference to the plaintiff; (5) at least negligence on the part
of the publisher; and (6) resulting injury.” 4
Butts v. Royal Vendors, Inc., 202 W. Va. 448, 453, 504 S.E.2d 911, 916 (1998). In
addition, “it is well established that although libel is generally perpetrated by written
communication, it also includes defamation through the publication of pictures or
photographs.” Id. at 79.

4 Because the Court’s jurisdiction over this claim is based on diversity, the undersigned “must apply the
choice-of-law rules of the state in which it sits.” Bombardiere v. Schlumberger Tech. Corp., No. 1:11–CV–
50, 2011 WL 2443691, at *5 (N.D. W. Va. June 14, 2011) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941)). Accordingly, West Virginia conflicts rules apply. Here, it is apparent from the
Complaint that Plaintiff’s claim is based in tort. “In tort cases, West Virginia generally ‘adheres to the
conflicts of law doctrine of lex loci delicti.’” Bombardiere, 2011 WL 2443691, at *5 (quoting W.Va. ex rel.
Chemtall, Inc. v. Madden, 216 W. Va. 443, 450–51, 607 S.E.2d 772, 779–80 (2004) (citation omitted)).
“That is, the substantive rights between the parties are determined by the law of the place of injury.” Id. at
780 (quoting Vest v. St. Albans Psychiatric Hosp., 182 W. Va. 228, 229, 387 S.E.2d 282, 283 (1989)).
Based on the information contained in the Complaint, Plaintiff appears to have been “injured” by Mattress
Firm’s defamatory statement in West Virginia. Therefore, West Virginia tort law applies.
Here, is it clear that Plaintiff’s conclusory allegation that Mattress Firm willfully
damaged her character by misrepresenting her actions to the public is nothing more
than that—conclusory. “While a court must accept all well-pled facts contained in the
complaint as true when assessing a pleading, ‘legal conclusions, elements of a cause of
action, and bare assertions devoid of further factual enhancement fail to constitute well-

pled facts for Rule 12(b)(6) purposes.’” Audiology Dist., LLC v. Hawkins, No.
5:13CV154, 2014 WL 3548833, at *4 (N.D. W. Va. July 17, 2014) (quoting Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing
Iqbal, 129 S. Ct. at 1949)).
Because Plaintiff fails to state a claim upon which relief can be granted, Plaintiff’s
claim must be dismissed, without prejudice. See 42 U.S.C. § 1915(e)(2)(B)(ii); see also
Nagy, 376 F.3d at 258 (noting that a dismissal under § 1915(e)(2)(B) is a dismissal
without prejudice).
v. Remaining Claims

Lastly, Plaintiff claims that (1) Mattress Firm punished her multiple times for the
same “thing”; (2) Mattress Firm punished her for “something” that occurred through no
fault of her own; and (3) Mattress Firm punished her for “something” that occurred
because of its own negligence. All of these allegations, however, fail to “‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Twombly, 550 U.S. at 555 (quoting Gibson, 355 U.S. at 47). In addition to being
conclusory, Plaintiff does not state what “thing” she was punished for multiple times or
what the “something” was that occurred through no fault of her own. Because Plaintiff
fails to provide any factual basis for these allegations, Plaintiff fails to state a claim upon
which relief can be granted. Therefore, Plaintiff’s claims must be dismissed, without
prejudice. See 42 U.S.C. § 1915(e)(2)(B)(ii); see also Nagy, 376 F.3d at 258 (noting that
a dismissal under § 1915(e)(2)(B) is a dismissal without prejudice).
VI. RECOMMENDATION
For the foregoing reasons, I find that this Court lacks subject-matter jurisdiction

over Plaintiff’s Title VII claims and the remainder of Plaintiff’s Complaint fails to state a
claim upon which relief can be granted. Accordingly, I RECOMMEND that Plaintiff’s
Complaint [ECF No. 1] be DISMISSED WITHOUT PREJUDICE and Plaintiff’s Motion
[ECF No. 2] for Leave to Proceed In Forma Pauperis be DENIED as moot.
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, Plaintiff Deltoria Gallant may file written objections identifying the
portions of the Report and Recommendation to which objections are made and the
basis for such objections with the Clerk of the Court.
A copy of such objections should also be submitted to the Honorable Gina M.

Groh, Chief United States District Judge. Failure to timely file objections to the Report
and Recommendation set forth above will result in waiver of the right to appeal from a
judgment of this Court based upon such Report and Recommendation. See 28 U.S.C. §
636(b)(1); Wright v. Collins, 766 F.2d 841, 845-48 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); see also
Thomas v. Arn, 474 U.S. 140, 155 (1985).
The Court directs the Clerk of the Court to mail a copy of this Report and
Recommendation to the pro se Plaintiff by certified mail, return receipt requested, to her
last known address as reflected on the docket sheet.
Further, because this Report and Recommendation completes the referral from
the District Court, the Clerk is directed to terminate the Magistrate Judge association
with this case.
Respectfully submitted this 1st day of December, 2017.
hak i. lal
ROBERT W. TRUMBLE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10724847. Public record. Not legal advice.