Muhammad v. Selma City School Board

Filing 5

Order granting in part and denying in part 2 motion to proceed IFP and for appointment of counsel filed by Jibrail Malik Muhammad. The motion IFP is granted. Plaintiff's request for counsel is denied. Plaintiff is ordered to file an amended complaint as set out. Amended complaint deadline set for 4/3/2012.). Signed by Judge Kristi K. DuBose on 3/13/2012. (copy mailed with pro se guide) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

JIBRAIL MALIK MUHAMMAD,
Plaintiff,
v.
SELMA CITY SCHOOL BOARD,
Defendant.

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CIVIL ACTION 12-115-KD-M

ORDER
This matter is before the Court on Plaintiff Jibrail Malik Muhammad’s motion for leave to
proceed in forma pauperis and for appointment of counsel.1 (Doc. 2). Plaintiff’s motion is
GRANTED in part and DENIED in part.

Specifically, upon review of the financial

information provided by Plaintiff, the Court finds that Plaintiff is indigent and may therefore
proceed in forma pauperis. However, recognizing both that a civil plaintiff has no constitutional
right to counsel and that the Eleventh Circuit has held that courts should appoint counsel only in
“exceptional circumstances, such as where facts and legal issues are so novel or complex as to
require the assistance of a trained practitioner,” see Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir.
1992), Plaintiff’s request for counsel is DENIED.
Because Plaintiff is proceeding in forma pauperis, the Court must review Plaintiff’s
complaint and dismiss the case if it determines that the action is frivolous, malicious, or fails to
state a claim for which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (2006); see also
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Plaintiff initially filed his pro se “Petition for Remedies” in the Northern District of Alabama.
(Doc. 1). On February 10, 2012, the Honorable C. Lynwood Smith, Jr., United States District
Judge for the Northern District of Alabama transferred the case to the Southern District of
Alabama along with 44 other apparently related actions that Plaintiff contemporaneously
commenced in the Northern District. (Doc. 3). On March 7, 2012, the Clerk of Court assigned
each of Plaintiff’s 45 cases to the undersigned.

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Bilal v. Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001) (dismissal under § 1915(e) is mandatory).
Several principles guide the Court’s inquiry. First is that, under 28 U.S.C. § 1915(e)(2)(B), “[a]
claim is frivolous if it is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d
1346, 1349 (11th Cir. 2001). Another is that, though a pro se litigant’s allegations are to be
construed liberally, the Court “will not serve as de facto counsel or rewrite an otherwise deficient
pleading in order to sustain an action.” Johnson v. Wilbur, 375 F. App’x 960, 963 (11th Cir.
2010) (internal citation and quotation marks omitted).
Unfortunately, the allegations of Plaintiff’s complaint are so conclusory and ill-formed as
to render adequate review by the Court impractical at this time. However, liberally construing
Plaintiff’s complaint, the Court has been able to tease out four distinct causes of action that
Plaintiff attempts to claim against the Selma City School Board (“the Board”), the lone defendant
in this action. Specifically, the Court construes Plaintiff’s complaint as alleging 1) employment
discrimination on the basis of sex and race regarding assignments, pay, and wrongful termination
(actionable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.); 2) failure to
accommodate religious beliefs (also actionable under Title VII); 3) failure to accommodate
physical disability (actionable under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq.); and 4) violations of the Family Medical Leave Act (“FMLA”) (actionable under
29 U.S.C. § 2601 et seq.).
In order to facilitate the required frivolity review, Plaintiff is hereby ORDERED to file an
amended complaint on or before Tuesday, April 3, 2012. As to each claim, each of which should
be pled as a separate count,2 Plaintiff is to provide particularized facts concerning the alleged

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The Clerk of Court is DIRECTED to send Plaintiff a copy of the Court’s Pro Se Litigant
Guide, which is available online at http://www.alsd.uscourts.gov/documents/forms/pslg.pdf.
Plaintiff is expected to be fully familiar and compliant with this Guide in all further proceedings in
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violation, including, but not limited to, the date and location of the violation and the name of each
participant involved. As to each cause of action, Plaintiff’s amended complaint must plead
enough factual matter that, if taken as true, suggests that the requisite elements will be met.3

this action. Additionally, Plaintiff is expected to comply with the Federal Rules of Civil
Procedure and the Local Rules of this District Court. See S.D. Ala. L.R. 83.9(b) (“All litigants
proceeding pro se shall be bound by and comply with all local rules of this Court, and the Federal
Rules of Civil and Criminal Procedure, unless otherwise excused from operation of the rules by
court order.”); Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (“Despite construction
leniency afforded pro se litigants, we nevertheless have required them to conform to procedural
rules.”); Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (a pro se litigant “is subject to the
relevant law and rules of court including the Federal Rules of Civil Procedure”).
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Title VII provides that it is “an unlawful employment practice for an employer to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (2006).
Plaintiff may establish a prima facie case of discrimination by showing that he 1) is a member of a
protected class; 2) suffered an adverse-employment action; and 3) was treated less favorably than a
similarly situated individual not in the protected class. Maynard v. Bd. of Regents, 342 F.3d
1281, 1289 (11th Cir. 2003). Under the governing standard for determining adverse-employment
actions, Plaintiff must show “a serious and material change in the terms, conditions, or privileges
of employment. Moreover, the employee’s subjective view of the significance and adversity of
the employer’s action is not controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.” Davis v. Town of Lake Park, 245 F.3d
1232, 1239 (11th Cir. 2001).
In order to establish a prima facie case of intentional compensation discrimination, Plaintiff
must establish that: 1) he belongs to a protected class; 2) received low wages; 3) similarly situated
comparators outside the protected class received higher compensation; and 4) he was qualified to
receive the higher wage. Cooper v. S. Co., 390 F.3d 695, 734-35 (11th Cir. 2004), overruled in
part on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). “In a comparator analysis,
the plaintiff is matched with a person or persons who have very similar job-related characteristics
and who are in a similar situation to determine if the plaintiff has been treated differently than
others who are similar to him.” Id. at 735-36 (quotation, citation, and emphasis omitted). The
plaintiff must show that he shared the same type of tasks as the comparators. Id. at 735. “A
comparator is an employee similarly situated to the plaintiff in all relevant respects.” Rioux v.
City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008) (internal quotations and alteration omitted).
In order to establish a prima facie case of religious discrimination under a
failure-to-accommodate theory, Plaintiff must prove that he had a bona fide religious belief that
conflicted with an employment requirement; that he informed his employer about the conflict; and
that he suffered an adverse employment action for failing to comply with the conflicting
employment requirement. Beadle v. Hillsborough Cnty. Sheriff’s Dep’t, 29 F.3d 589, 592 n.5
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However, an amended complaint that offers labels and conclusions, a formulaic recitation of the
elements of the causes of action, or naked assertions devoid of further factual enhancement will
not suffice. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Plaintiff is ADVISED that his new complaint will supersede his original complaint;
therefore, Plaintiff shall not rely upon or reference his original complaint. Additionally, Plaintiff
is CAUTIONED that failure to file an amended complaint within the prescribed time may result in
the dismissal of this action for failure to prosecute and to obey the Court’s Order.
The Clerk of Court is DIRECTED to send a copy of this order to Plaintiff by U.S. Mail.
DONE and ORDERED this the 13th day of March 2012.

/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

(11th Cir. 1994).
In order to establish a prima facie case under the ADA, Plaintiff must show that he: 1) has a
“disability” (as defined by 42 U.S.C. § 12102); 2) is a “qualified individual” (as defined by 42
U.S.C. § 12111); and 3) was discriminated against because of his disability. Pritchard v. S. Co.
Servs., 92 F.3d 1130, 1132 (11th Cir. 1996). Failure to reasonably accommodate the known
physical or mental limitations of an otherwise qualified individual constitutes discrimination under
the ADA. 42 U.S.C. § 12112(b)(5)(A) (2006).
To state a claim that the Board has interfered with his right to take FMLA leave, Plaintiff must
“demonstrate that he was entitled to but denied the right.” Strickland v. Water Works & Sewer
Bd., 239 F.3d 1199, 1208 (11th Cir. 2001). To bring claims under the FMLA, an employee must
first be found to be an “eligible employee” under the statute by 1) having been employed by the
employer for at least 12 months; and 2) having been employed for at least 1,250 hours of service
with the employer in the previous 12-month period. 29 U.S.C. § 2611(2)(A) (2006). Eligible
employee status is a required element for recovery in an FMLA action. Morrison v. Amway
Corp., 323 F.3d 920, 927 (11th Cir. 2003).

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