United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W.TRUME-LE UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Arthur Lee Hairston, Sr.'s
(“Plaintiff”) pro se Motion [ECF No. 2] for Leave
to Proceed In Forma Pauperis. 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 the Court lacks
subject-matter jurisdiction over Plaintiff's Title VII
claim, the undersigned recommends that Plaintiff's
complaint be dismissed, without prejudice, and
Plaintiff's motion to proceed in forma pauperis
be denied as moot.
February 7, 2019, Plaintiff filed the instant pro se
complaint alleging that Defendants DVA, Regional VA Office
Martinsburg, and the Claims Intake Center, Philadelphia
Pension Center (collectively, “Defendants”)
discriminated against him. See ECF No. 1, at 1.
Interpreting Plaintiff's complaint liberally, it appears
that Plaintiff attempted to apply for non-service connected
pension benefits in August 2018 by submitting a statement in
support of claim at the Regional VA Office Martinsburg.
Id.; see ECF No. 1-2. In October 2018,
Plaintiff alleges that he called the Claims Intake Center and
was told to submit a hardship package with bills. ECF No. 1,
at 1. Plaintiff further alleges that he was not told in
August or October by Defendants that he was required to
complete and submit an application for pension benefits.
Id. Plaintiff contends that these omissions on the
part of Defendants constituted discrimination. Id. at
1-2. Plaintiff then asserts that he only learned of the
application requirement on December 31, 2018 and that he
completed the application that same day. Id. at 2;
ECF No. 1-2. Plaintiff claims that because of this delay in
submitting his application, he is not eligible for benefits
until August 6, 2019. ECF No. 1, at 2.
seeks monetary and compensatory damages, injunctive relief,
and other damages. Id. at 1. In particular,
Plaintiff asks that benefits be awarded from August 2018.
Id. at 2.
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 the 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,
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 Cnty., 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).
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)).
construed, Plaintiff's complaint alleges that Defendants
engaged in discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 (2012). But before determining whether
Plaintiff's complaint sets forth any viable claims, the
undersigned must first determine whether this Court has
“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. Here, Plaintiff claims this Court has federal-question
jurisdiction under § 1331, as stated in the caption of
Plaintiff's complaint. ECF No. 1, at 1. 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).
“Title VII . . . creates a federal cause of action for
employment discrimination, ” a claimant must first
exhaust the administrative procedures enumerated in 42 U.S.C.
§ 2000e-5(b) before a federal court may assume
jurisdiction. Davis v. N.C. Dep't of Corr., 48
F.3d 134, 136-37 (4th Cir. 1995). In other words, “a
failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of
subject matter ...