Harris v. Community Action Partnership North Alabama

Filing 2

MEMORANDUM OPINION Signed by Judge Sharon Lovelace Blackburn on 9/19/17. (SAC )

FILED
2017 Sep-19 PM 03:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
ROBIN HARRIS,
Plaintiff,
vs.
COMMUNITY
ACTION
PARTNERSHIP OF NORTH
ALABAMA,
Defendant.

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Case Number: 6:12-mc-3917-SLB

MEMORANDUM OPINION
This case is currently before the court on plaintiff Robin Harris’s Application Under
706(f) of Civil Rights Act of 1964, asking the court to appoint her an attorney and to grant
her the authority to commence this case without prepayment of fees, costs, or security. (See
doc. 1.)1 For the reasons set forth herein, the court finds that Harris’s Application is due to
be granted in part and denied in part and that her claims are due to be dismissed.
1. Motion to Appoint an Attorney
“Appointment of counsel in a civil case is not a constitutional right. It is a privilege
that is justified only by exceptional circumstances, such as where the facts and legal issues
are so novel or complex as to require the assistance of a trained practitioner.” Fowler v.
Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). Further, the United States Supreme Court has

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

held that an attorney may not be compelled to accept appointment in a civil action. See
Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296
(1989).
Based on Harris’s Application, the court will deny her request for appointment of
counsel on the ground that the legal and factual issues do not appear to be so novel or
complex as to require the assistance of trained counsel.
2. Motion to Proceed Without Prepayment of Fees, Costs, and Security
Harris also asks the court to allow her to commence an action without prepayment of
the fees, costs, or security because of her inability to pay such fees, costs, and/or security.
In other words, she asks the court for permission to proceed in forma pauperis [hereinafter
“IFP”].2 This court “has wide discretion in denying an application to proceed IFP under 28
U.S.C. § 1915. This is especially true . . . in civil cases for damages, wherein the courts
should grant the privilege sparingly.” Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306
(11th Cir. 2004)(citing Flowers v. Turbine Support Div., 507 F.2d 1242, 1244 (5th Cir.
1975)). However the court may not arbitrarily deny an application to proceed IFP or deny
the application on erroneous legal grounds. Id. at 1306-07.
When considering a motion filed pursuant to § 1915(a), the only
determination to be made by the court is whether the statements in the affidavit
satisfy the requirement of poverty. An affidavit addressing the statutory
language should be accepted by the court, absent a serious misrepresentation,
and need not show that the litigant is absolutely destitute to qualify for

2

“In forma pauperis” is Latin for “in the manner of a pauper.” BLACK’S LAW
DICTIONARY 849 (9th ed. 2009).
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indigent status under § 1915. Such an affidavit will be held sufficient if it
represents that the litigant, because of his poverty, is unable to pay for the
court fees and costs, and to support and provide necessities for himself and his
dependents. In other words, the statute is not to be construed such that
potential litigants are forced to become public charges or abandon their claims
because of the filing fee requirements.
Id. at 1307 (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40 (1948);
Watson v. Ault, 525 F.2d 886, 891 (11th Cir.1976))(internal quotations, citations, and
footnotes omitted).
According to her Application, Harris is unemployed. (Doc. 1 at 1.) Her outstanding
debts and obligations outweigh the value of her assets. (See id. at 2-3.) The court finds that
Harris has demonstrated her economic eligibility for IFP status.
Therefore, her Application to proceed IFP will be granted.
3. Section 1915(e)(2)(B)
“Where the IFP affidavit is sufficient on its face to demonstrate economic eligibility,
the court should first docket the case and then proceed to the question of whether the asserted
claim is frivolous.” Martinez, 364 F.3d at 1307. The statute authorizing this court to allow
a plaintiff to proceed without prepayment of fees, costs, and security, 28 U.S.C. § 1915(a),
also requires states:
[T]he court shall dismiss the case at any time if the court determines that –
...
(B) the action or appeal –
(i) is frivolous or malicious; [or]
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(ii) fails to state a claim on which relief may be granted . . . .
28 U.S.C. § 1915(e)(2)(B).
“An issue is frivolous when it appears that ‘the legal theories are indisputably
meritless.’” Ghee v. Retailers Nat. Bank, 271 Fed. Appx. 858, 859 (11th Cir. 2008)(quoting
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)).3 “In other words, an IFP action is
frivolous, and thus not brought in good faith, if it is without arguable merit either in law or
fact. More specifically, arguable means capable of being convincingly argued.” Id. at 85960 (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) and Sun v. Forrester, 939
F.2d 924, 925 (11th Cir. 1991))(internal quotations and citations omitted; emphasis added).
“The language of section 1915(e)(2)(B)(ii)[, which allows the court to dismiss a
complaint for failure to state a claim,] tracks the language of Federal Rule of Civil Procedure
12(b)(6), and [the court] will apply Rule 12(b)(6) standards in reviewing dismissals under
section 1915(e)(2)(B)(ii).” Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).
Therefore, in determining whether the Complaint states a claim, the court accepts the
allegations in the Complaint as true and construes those allegations in the light most
favorable to plaintiff. Ironworkers Local Union 68 v. AstraZeneca Pharmaceuticals, LP, 634
F.3d 1352, 1359 (11th Cir. 2011)(quoting American Dental Ass’n v. Cigna Corp., 605 F.3d
1283, 1288 (11th Cir. 2010)). “The complaint must contain sufficient factual matter . . . to
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Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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state a claim to relief that is plausible on its face.” Id. (quoting Am. Dental Ass’n, 605 F.3d
at 1289 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)))(internal
quotations omitted). A claim is “plausible” if the facts are sufficient “to allow[ ] the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Harris did not file a General Complaint Form. She filed only the Affidavit to which
she attached her EEOC Charge and her Right-to-Sue Letter. (See generally doc. 1.) She
appears to allege that Harris was discriminated against on the basis of her disability and in
retaliation for complaining about discrimination against Hispanic clients and “harassment
during her sickness.” (Id. at 4-6.) She was terminated on April 21, 2011; she filed an EEOC
Charge, alleging disability discrimination and retaliation culminating in her termination, 201
days later on November 8, 2011. (Id. at 12.)
Before filing suit in this court, a plaintiff alleging disability discrimination under the
Americans with Disabilities Act [“ADA”] and/or retaliation in violation of Title VII and the
ADA “must first file a charge of discrimination with the EEOC.” Abram v. Fulton Cty.
Gov't, 598 Fed. Appx. 672, 674 (11th Cir.)(citing 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. §
12117(a); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)), cert. denied
136 S. Ct. 149 (2015). “For an EEOC charge to be timely in a non-deferral state—such as
[Alabama], the charge must be filed within 180 days of when the alleged violation occurred.”
Id. (citing 42 U.S.C. § 2000e-5(e)(1); Wilkerson, 270 F.3d at 1317).

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Harris’s Application shows that her ADA and Title VII claims are procedurally barred
because she failed to timely file an EEOC Charge. Therefore, such claims will be dismissed.
See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)(“A complaint is subject to
dismissal for failure to state a claim ‘when its allegations, on their face, show that an
affirmative defense bars recovery on the claim.’” (quoting Cottone v. Jenne, 326 F.3d 1352,
1357 (11th Cir. 2003))); see also Jones v. Bock, 549 U.S. 199, 215 (2007)(“If the allegations,
for example, show that relief is barred by the applicable statute of limitations, the complaint
is subject to dismissal for failure to state a claim . . . .”).
Viewing the Application in the light most favorable to Harris and liberally construing
her allegations, the court finds that Harris may have intended to assert a claim under the
Family and Medical Leave Act [“FMLA”]. Generally –
The FMLA protects employees against interference with the exercise
or attempted exercise of their substantive rights under the statute. 29 U.S.C.
§ 2615(a)(1). This prohibition has also been interpreted to provide protection
against retaliation for exercising or attempting to exercise rights under the
statute. See 29 C.F.R. § 825.220(c). To state a claim of interference, the
employee must allege that he was entitled to a benefit under the FMLA and
was denied that benefit. Strickland v. Water Works and Sewer Bd. of
Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001). To state a claim for
retaliation, an employee must allege sufficient facts to plausibly suggest that:
“(1) he engaged in a statutorily protected activity; (2) he suffered an adverse
employment decision; and (3) that the decision was causally related to the
protected activity.” Id. at 1207. To recover on either an interference or a
retaliation claim under the FMLA, the employee must have been employed for
at least twelve months by the employer and worked at least 1,250 hours during
the previous twelve-month period. See 29 U.S.C. § 2611(2)(A). The FMLA
only applies to private-sector employers with fifty or more employees. Id.
§2611(4)(A).
Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th Cir. 2015)(footnote omitted).
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The Application states that Harris was “denied reasonable [accommodation], FMLA.”
(Doc. 1 at 5.) “The FMLA leave provisions are ‘wholly distinct’ from the reasonable
accommodation employers are obligated to provide under the Americans with Disabilities
Act (ADA).” Yoosun Han v. Emory Univ., 658 Fed. Appx. 543, 547 (11th Cir. 2016), cert.
denied 137 S. Ct. 1118 (2017). Therefore, denial of a requested reasonable accommodation
does not state a claim under the FMLA.
It appears that, maybe, Harris took FMLA leave or sick leave in September 2010 for
pneumonia and was away from work for a month.4 (Doc. 1 at 5-6.) While on sick leave,
Harris got behind on her work, and, on February 8, 2011, she was given a verbal warning for
being behind. (Id. at 6.) Six weeks later, on March 22, 2011, she was given a second
warning for being behind, she was suspended for 2 and 1/2 days, and she was told she had
30 days to catch up. (Id.) Exactly 30 days later, she was terminated; defendant “told [her
that she] was terminated because [her] work was behind.” (Id.)
The Application does not allege facts from which it can be determined that Harris
was an eligible employee or that her employer was covered by the Act. More importantly,
the Application makes no reference to any specific FMLA benefit Harris was denied or any
specific activity protected by the FMLA in which she engaged.5 (See generally doc. 1.) She

4

The Application does not state specifically that this time off with pneumonia was
FMLA leave. (Doc. 1 at 5-6.)
5

The FMLA defines “statutorily protected activity” as “(1) . . . fil[ing] any charge, or
. . . institut[ing] or caus[ing] to be instituted any proceeding, under or related to [the
FMLA];” “ (2) . . . giv[ing] . . . any information in connection with any inquiry or proceeding
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states that she had pneumonia in September 2010, but she does not state that she had any
other serious health condition. She contends that she “was given 30 days to catch up on
work,” and that she “almost had it completed” at the time she was terminated – exactly 30
days later. (Id. at 6.) The court finds that, although Harris meets the financial indigence
requirements, her Application fails to state a claim upon which relief may be granted. See
Davis v. Auburn Bank, No. 3:15-CV-655-WKW-WC, 2016 WL 1605349, *6 (M.D. Ala.
Mar. 30, 2016), report and recommendation adopted 2016 WL 1560404 (M.D. Ala. Apr. 18,
2016); see also Surtain, 789 F.3d at 1247-48; Shanks v. Potter, 451 Fed. Appx. 815, 818
(11th Cir. 2011); Chapman v. U.S. Postal Serv., 442 Fed. Appx. 480, 483 (11th Cir. 2011)
When “a more carefully drafted complaint might state a claim, a plaintiff must be
given at least one chance to amend the complaint before the district court dismisses the
action with prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citation
omitted). Although a pro se litigant generally should be permitted to amend her complaint,
a district court need not allow amendment when it would be futile. Cockrell v. Sparks, 510
F.3d 1307, 1310 (11th Cir. 2007). “Leave to amend a complaint is futile when the complaint
as amended would still be properly dismissed or be immediately subject to summary
judgment for the defendant.” Id. The court finds leave to amend is futile.

relating to any right provided under [the FMLA];” and/or “(3) . . . testif[ying] in any inquiry
or proceeding relating to any right provided under [the FMLA].” 29 U.S.C. § 2615(b).
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Nothing in the Application hints that Harris was denied FMLA leave to which she was
entitled or that she engaged in any statutorily protected activity. Therefore, her FMLA
claims, to the extent asserted in her Application, will be dismissed.
CONCLUSION
For the foregoing reasons, the court is of the opinion that Harris’s Application fails
to state a claim for relief. An Order denying her Application requesting the court to appoint
an attorney, granting her Application to proceed IFP, and dismissing her claims pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) will be entered contemporaneously with this Memorandum
Opinion.
DONE this 19th day of September, 2017.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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