Blanchard v. McDonald et al

Filing 12

OPINION AND ORDER, IT IS THEREFORE ORDERED that Kenneth Elser (US Attorney, Western District of Arkansas) and United States Attorney General are dismissed as Defendants to this action. Signed by Honorable Timothy L. Brooks on August 17, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
PLAINTIFF

CRAIG ALLEN BLANCHARD, MBA

v.

CASE NO. 16-CV-05189

ROBERT A. MCDONALD, Secretary,
Department of Veteran's Affairs, Agency,
KENNETH ELSER, US Attorney, Western
District of Arkansas, UNITED STATES
ATTORNEY GENERAL

DEFENDANTS

OPINION AND ORDER

Plaintiff, Craig Allen Blanchard ("Blanchard") commenced this proceeding by
filing a pro se Complaint (Doc. 1), pursuant to Title VII of the Civil Rights Act of 1964
and the Rehabilitation Act. As Plaintiff is proceeding in forma pauperis, the Court is
obligated to screen the case prior to service of process being issued. See 28 U.S.C.
§1915(e)(2) . The Court must dismiss a complaint, or any portion of it, if it: (a) contains
claims that are frivolous or malicious; (b) fails to state a claim upon which relief may be
granted ; or (c) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(b).
A claim is frivolous if "it lacks an arguable basis either in law or fact. " Neitzke v.
Williams, 490 U.S. 319 , 325 (1989) . A claim fails to state a claim upon which relief may
be granted if it does not allege "enough facts to state a claim to relief that is plausible on
its face ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) . "In evaluating
whether a prose plaintiff has asserted sufficient facts to state a claim, we hold 'a prose
complaint, however inartfully pleaded , . . . to less stringent standards than formal

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pleadings drafted by lawyers."' Jackson v. Nixon , 747 F.3d 537 , 541 (8th Cir. 2014)
(quoting Erickson v. Pardus , 551 U.S. 89 , 94 (2007)) .
Plaintiff, who is a parapleg ic, contends he was discriminated and retaliated
against because of his disability "when the Agency failed to select Complainant for the
Budget Analyst [position]" and "failed to select Complaint [sic] for the position of
Veterans Equitable Resource Allocation Program Analyst," in violation of Title VII of the
Civil Rights Act of 1964, and section 501 of the Rehabilitation Act of 1973. (Doc. 1, p.
4) . "[T]itle VII only prohibits discrimination on the basis of race , color, religion , sex, or
national origin , not disability. " Kelso v. Munter, 2010 WL 5092712, at *2 (W.D . Mo. Dec.
7, 2010) (referencing 42 U.S.C. § 2000e-2(a)(1 )) . Accordingly, Plaintiff cannot state a
claim for relief under Title VII for disability discrimination , and the Title VII claim should ,
therefore, be dismissed .
As to Plaintiff's Rehabilitation Act claims, he has named as Defendants Robert A.
McDonald , Secretary of the Department of Veteran 's Affairs ; Kenneth Elser, United
States Attorney for the Western District of Arkansas ; and the United States Attorney
General. (Doc. 1, p.1). The only proper Defendant is McDonald . See Hamilton v.

Nicholson, 2007 WL 1340968, at *3 (D . Neb. Mar. 12, 2007) . Therefore, Defendants
Kenneth Elser and the United States Attorney General are dismissed.
IT IS THEREFORE ORDERED that Plaintiff's Title VII claim is dismissed without
prejudice, and Defendants Kenneth Elser and the United States Attorney General are
also dismissed as Defendants to this action.

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IT IS SO ORDERED on this

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day of August, 2 16.

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