May v. Martin Fein Interest Ltd., 5:21-CV-83-M

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtRobert B. Jones United States Magistrate Judge
Decision Date16 June 2021
PartiesRAYMOND EARL MAY, JR. and ANGELA DOLORES MAY, Plaintiffs, v. MARTIN FEIN INTEREST LTD., et al., Defendants.
Docket Number5:21-CV-83-M

RAYMOND EARL MAY, JR. and ANGELA DOLORES MAY, Plaintiffs,
v.

MARTIN FEIN INTEREST LTD., et al., Defendants.

No. 5:21-CV-83-M

United States District Court, E.D. North Carolina, Western Division

June 16, 2021


ORDER AND MEMORANDUM AND RECOMMENDATION

Robert B. Jones United States Magistrate Judge

This matter is before the court on Plaintiffs' applications to proceed in forma pauperis [DE-7, -11] and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiffs have demonstrated appropriate evidence of inability to pay the required court costs, and the applications to proceed in forma pauperis are allowed. However, for the following reasons, it is recommended Plaintiffs' claims be dismissed in part.

I. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) "to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims"). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) ("Examples of frivolous claims include those whose factual allegations are 'so nutty,' 'delusional,' or 'wholly fanciful' as to be simply 'unbelievable.'"). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id. at 327-28.

In determining whether a complaint is frivolous, "a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiffs allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. "The word 'frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim." Nagy v. Fed. Med. Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may "apply common sense." Nasim v. Warden., Md. House of Correction, 64 F.3d 951, 954 (4th Cir. 1995).

In order to state a claim on which relief may be granted, "a complaint must 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level ..." Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.

In the present case, Plaintiffs are proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required "to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II. ANALYSIS

The allegations of the complaint are as follows. [DE-1-1, -1-2].[1] In March 2018, Plaintiffs Angela May and Raymond May ("Ms. May" and "Mr. May") and their disabled adult daughter, Alexis Angelena Lucas ("Ms. Lucas"), who is not a plaintiff, applied for an apartment at Creekside at Crabtree ("Creekside") in Raleigh, North Carolina. Id. at 9. Eleven different leases were sent to Plaintiffs, and Plaintiffs allege that Defendants attempted to deter them from moving to Creekside. Id. Plaintiffs were initially offered several rent concessions. Id. Leasing agent Meredith Cicale ("Ms. Cicale") first showed Plaintiffs Apartment 331, but then informed them that it was not available. Id. Ms. Cicale showed them Apartment 316 and stated that she would lease it at the same rate and with the same concessions as Apartment 331. Id.

Plaintiffs returned the next week to sign the lease, and a different leasing agent, Lauren, showed them Apartment 237. Id. at 10. Again, Plaintiffs were told that they could lease Apartment 237 for the same rate as Apartment 316. Id. Plaintiffs asked if it was a handicapped accessible building, and the leasing agent stated that it was. Id. However, Apartment 237 is not a handicapped accessible apartment because a person in a wheelchair would be unable to access several rooms. Id. Defendant William Hubbard, the apartment manager, informed an investigator that Apartment 237 was rented as a handicapped accessible unit. Id.

In April 2018, Ms. Cicale offered Plaintiffs a preferred employee discount. Id. Defendant Katie Nelson, an apartment manager, confirmed that Plaintiffs could receive the discount, which included no security deposit. Id. After ten leases were sent to Plaintiffs, the special terms were removed. Id. Defendant Nelson stated that she contacted Defendant Brenda Hubbard, another manager, and that Plaintiffs would only be approved for the apartment if they paid the first and second months' rent and a one thousand dollar security deposit and that the special rate would start in mid-June, the second month of the lease. Id.

However, Plaintiffs had to pay the full amount of rent for the month of June. Id. at 11. Defendant Nelson told them that some people would move into the apartment, stay for one month rent free, and then move out. Id. Defendant Nelson also told Plaintiffs that they could not pay rent like everyone else; they had to pay by certified funds only and could not pay using the residence portal. Id. Plaintiffs asked Defendant Nelson if she would honor the terms offered by Lauren, and Defendant Nelson told them that she would not and that Lauren had given them bad information. Id.

Around March 21, 2018, [2] Ms. Cicale told Plaintiffs that they were approved and would get certain concessions. Id. Afterwards, Plaintiffs were contacted by either Ms. Cicale or Defendant Desserraye Perry requesting information they had already submitted, including rental history and income verification. Id. Defendant Perry informed Plaintiffs that Ms. Cicale had given them bad information and that they would have to pay a one thousand dollar security deposit and the first month's rent, but it would be refunded in mid June. Id. Plaintiffs were told that they would have to pay a total of $3, 090 to move in. Id. Plaintiffs received a Welcome Letter from Creekside stating that the move in amount would be $3, 090 and that the discounts would start the second month of the lease. Id.

On April 6, 2018, Defendant Perry stated that Plaintiffs were approved with a one thousand dollar security deposit and a one hundred fifty dollar refundable application fee per person, and that Plaintiffs must pay in certified funds. Id. at 11-12.

On June 6, 2018, management placed a non-sufficient funds notice on Plaintiffs apartment door. Id. at 12. Plaintiffs could only pay by certified funds and could not use the residence portal, so they placed their payment in the drop box. Id. Defendant Nelson later stated that the money was found and that the notice was posted by mistake. Id. Plaintiffs allege that the notice was a way to intimate, harass, and humiliate them. Id.

On June 12, 2018, Defendant Nelson stated that she had to post the notice because she did not want Plaintiffs to move in for free and then move out without paying rent for two months. Id. Plaintiffs again asked Defendant Nelson if she would honor the terms offered by Ms. Cicale, and Defendant Nelson stated that she would not. Id. She again told Plaintiffs that they could not pay like everyone else and that they had to pay by certified funds. Id. Plaintiffs allege that those actions were to deter them from renting an apartment because of their race and disabilities. Id.

On July 7, 2018, Defendant Perry signed for Ms. Lucas's pain medication, and when Ms. May asked Defendant Perry if the package had arrived, Defendant Perry stated that it had not and that she had not signed for any deliveries that day. Id. at 13. The medication was found only after the pharmacy tracked the package. Id. On July 10, 2018, Ms. May received a call from Victor Rotello, a leasing agent, stating that the medication had just arrived. Id. Plaintiffs allege that Ms. Lucas suffered in extreme pain for three days because Defendant Perry attempted to steal the medication. Id.

Also on July 10, 2018, Defendant Nelson for the second time sent an email to Plaintiffs stating that the Non-Sufficient Funds Notice had been placed on their door in error. Id. Plaintiffs allege that the Creekside staff were aware that Ms. Lucas has relapsing Multiple Sclerosis and that Mr. May has a heart condition that could be exacerbated by the placement of the notice. Id.

On July 14, 2018, Mr. May called 911 regarding a disturbance in...

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