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Draper v. New River Valley Pizza LLC

United States District Court, W.D. Virginia, Roanoke Division

June 8, 2018

CEDRICK EURON DRAPER, Plaintiff,
v.
NEW RIVER VALLEY PIZZA LLC, d/b/a Domino's Pizza Defendant.

          MEMORANDUM OPINION

          Robert S. Ballou United States Magistrate Judge.

         This action represents the third attempt of Plaintiff, Cedrick Euron Draper, who is proceeding pro se, to sue his former employer, Defendant New River Valley Pizza LLC, claiming that he was terminated because of his race. Like the prior suits, Plaintiff fails to state a cause of action, and, therefore, I dismiss this action after review under 28 U.S.C. § 1915(e)(2)(B).[1]

         Plaintiff's complaint is a rambling and at places a nonsensical attempt to explain the termination of his employment. See Dkt. 2 & 3. Plaintiff asserts in his complaint and brief in support of his complaint that he worked as a pizza delivery driver. A customer complained that a driver with a vehicle similar to Plaintiff's became involved in a road rage incident. Defendant concluded that Plaintiff was involved and terminated him. Plaintiff complains that he was terminated because of his race and draws that conclusion from the description of the pizza delivery driver given by the other person involved in the incident. Plaintiff seems to conclude that his race was the reason for his termination because Defendant's supervisors did not adequately investigate the incident.

         Plaintiff's prior actions against Defendant have contained similar vague allegations of termination from employment, which he claims were racially motivated. In both actions, Plaintiff requested leave to proceed in forma pauperis, but both met the same fateful conclusion of dismissal without prejudice after review under § 1915(e)(2)(B) for failure to allege sufficient facts to establish federal subject matter jurisdiction.

         In Draper v. New River Valley Pizza, LLC, No. 7:17-cv-380 (W.D. Va. Aug. 30, 2017) (the “First Suit”), Plaintiff filed suit claiming racial discrimination under Title VII and 42 U.S.C. § 12203. Plaintiff claimed that his superiors instructed him to leave his shift at Domino's Pizza to purchase a new belt. Defendant allegedly received reports that Plaintiff was involved in a road rage incident during this trip, and terminated him the next day. Plaintiff claimed that Defendant's decision to terminate him was based in part on his previous employment at Pizza Hut. Plaintiff did not allege any facts showing that he was terminated because of his race. Chief United States District Judge Michael F. Urbanksi dismissed Plaintiff's case without prejudice for lack of subject matter jurisdiction under § 1915(e)(2)(B), explaining that “[t]here are no allegations in the amended complaint or in any of the documents filed by Draper suggesting that his claims fall within the protections afforded by Title VII or that he has been discriminated against in violation of federal law.”

         In Draper v. New River Valley Pizza, LLC, No. 7:17-cv-382 (W.D. Va. Aug. 30, 2017) (the “Second Suit”), Plaintiff filed suit under 28 U.S.C. § 4101 and 18 U.S.C. § 1001. Plaintiff relied on the same facts as in the First Suit. Additionally, Plaintiff alleged that Defendant terminated him without proof that he was the individual involved in the road rage incident and that there were other cars similar to his in that area. Judge Urbanksi again dismissed the second suit without prejudice for lack of subject matter jurisdiction under § 1915(e)(2)(B), explaining that neither 28 U.S.C. § 4101 nor 18 U.S.C. § 1001 establish federal question jurisdiction over Plaintiff's claim.

         Since March 30, 2017, Plaintiff has filed twenty-six actions in this district against various defendants, including Muy Pizza Southeast LLC (seven times), Virginia Mirror Company (three times), Lyft, Inc. (once), TMC Finance LLC (three times), New River Valley Pizza LLC (three times), Geico Secure Insurance Company (once), Adecco USA, Inc. (once), Pinkerton Chevrolet - Lynchburg, Inc. (once), the Charlottesville General District Court (once), the Henry County General District Court (once), the United States Postal Service (twice), the Danville Division of the United States District Court for the Western District of Virginia (once), and several private persons.[2]

         Plaintiff sought leave to proceed in forma pauperis in twenty-three cases.[3] Twenty-two cases have been dismissed on the grounds of voluntary dismissal, failure to pay filing fees, lack of subject matter jurisdiction, and/or legal frivolity.[4] One case was transferred for improper venue.[5] Plaintiff has three cases pending, one of which is this case.[6]

         On April 27, 2018, Senior United States District Judge Jackson L. Kiser imposed sanctions on Plaintiff under Fed.R.Civ.P. 11 of $400.00 because of his litigious conduct, and entered a pre-suit injunction against filing a new action in this district. The pre-suit injunction limits Plaintiff from filing a new civil action in this court except under the following conditions[7]:

(1) For a period of two years, Plaintiff is barred from proceeding in forma pauperis in this district in any future matter except habeus corpus cases and cases over which the federal court arguably has subject matter jurisdiction involving claims of imminent danger of serious bodily injury;
(2) For a period of ten years, Plaintiff shall be fined $300 for every case he files in this district that is dismissed, pursuant to 28 U.S.C. § 1915, as frivolous, or for lack of subject matter jurisdiction, untimeliness, or failure to state a claim-unless the judge so dismissing clearly states that there was a good-faith argument against dismissal;
(3) Plaintiff, or anyone acting on his behalf, is hereby required to submit a copy of the Pre-Filing Injunction and this Memorandum Opinion as a necessary component of any new civil action filed in this district; and
(4) Plaintiff will not be permitted to file any new action in the Western District of Virginia until the sanctions imposed herein for his ...

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