Jolly v. US Equal Employment Opportunities Commission et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Maketa S. Jolly
v. 	Case No. 22-cv-95-LM
United States Equal
Employment Opportunities
Commission, et al.
Report and Recommendation
Maketa S. Jolly, who is proceeding pro se and in forma
pauperis, filed a complaint against the United States Equal
Employment Opportunities Commission and employees of the State
of Vermont, alleging claims that appear to arise from Jolly’s
unsuccessful efforts to obtain a nursing license in Vermont.
Jolly then filed a motion for “Default Summary Judgment,” doc.
No. 3. 	The complaint has been referred for preliminary review
pursuant to 28 U.S.C. § 1915(e)(2), and the motion has been
referred for a report and recommendation.
Standard of Review
On preliminary review, the court will dismiss sua sponte an
action brought by a pro se plaintiff if, among other things, the
suit is “frivolous or malicious,” “fails to state a claim on
which relief may be granted,” or “seeks monetary relief against
a defendant who is immune from such relief.” 	§ 1915(e)(2)(B).
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For purposes of deciding whether the complaint states an
actionable claim, the court takes the factual allegations,
without legal conclusions, as true and determines whether those
facts are sufficient to state a plausible cause of
action. 	Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102 (1st Cir.
2013); Machado v. Weare Police Dept., 494 F. App'x 102, 105 (1st
Cir. 2012). The court liberally construes a pro se complaint,
using a less stringent standard than would apply to a pleading
filed by a lawyer. 	Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Discussion
Although the complaint is difficult to understand, Jolly
appears to allege claims that she was unable to obtain a nursing
license in Vermont because of the actions of the Equal
Employment Opportunity Commission (“E.E.O.C.”), the Vermont
Office of the Secretary of State, and employees of the State of
Vermont. 	She contends that the defendants, or some of them,
refused her the opportunity to take an examination in violation
of her rights under the First, Fourth, and Fourteenth
Amendments. 	She also alleges that some of the defendants
disclosed her personal information to the State of New Jersey in
violation of the Telephone Consumer Protection Act of 1991.
Where the defense of improper venue is “obvious from the
face of the complaint and no further factual record is required
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to be developed, the court may, sua sponte, dismiss the case.”
Hart v. Three Unnamed New York City Police Officers, No. 20-CV-
778-SM, 2021 WL 2118317, at *1–2 (D.N.H. Mar. 30, 2021), report
and recommendation adopted sub nom. Hart v. Three Unnamed New
York City Policemen, No. 20-CV-778-SM, 2021 WL 2109658 (D.N.H.
May 24, 2021). 	Venue is appropriate in the judicial district
where all of the defendants reside, or where a substantial part
of the events giving rise to the plaintiff's claims occurred.
28 U.S.C. § 1391(b).
Jolly is a resident of Pennsylvania. 	None of the
defendants are residents of New Hampshire and none of the
actions and circumstances she alleges occurred in New Hampshire.
As such, the complaint demonstrates that venue does not lie in
the District of New Hampshire.
In addition, Jolly has attempted to bring these claims or
related claims in other districts without success. 	See, e.g.,
Jolly v. Sniscak, 22-10534, 2022 WL 1547837 (E.D. Mich. May 16,
2022); Jolly v. Geib, 22-cv-395(UNA), 2022 WL 1500562 (D.D.C.
May 9, 2022); Jolly v. Excelsior College, 21-cv-621-(DNH/TWD),
2021 WL 4775241 (N.D.N.Y. Oct. 12, 2021); Jolly v. Mitchel, 19-
cv-2208, 2019 WL 2268972 (E.D. Pa. May 24, 2019). Based on her
prior cases, Jolly is aware that the federal government and its
agencies are immune from suit absent consent, that claims for
money damages against states and state officials in their
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official capacities are barred by the Eleventh Amendment absent
consent, and that venue is an essential element of her suit
which is lacking when the parties are not from the forum state
and no events occurred there. 	Further, to the extent she has
litigated these claims in other suits, the claims alleged here
are barred by res judicata. 	Jolly, 2021 WL 4775241, at *3.
Conclusion
For the foregoing reasons, the district court should
dismiss the complaint (doc. no. 1) on preliminary review for
lack of venue in the District of New Hampshire and because the
claims against the Equal Employment Opportunity Commission and
the agencies of the State of Vermont are barred by sovereign
immunity and the Eleventh Amendment. 	With the dismissal of the
complaint, the motion for default summary judgment (doc.no. 3)
should be denied as moot.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
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any objections within the specified time waives the right to
appeal the district court's order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
June 30, 2022
cc: Maketa S. Jolly, pro se.
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