White v. Volusia County School Board et al

Filing 3

REPORT AND RECOMMENDATION re 2 MOTION for leave to proceed in forma pauperis filed by Marjorie R. White. Signed by Judge David A. Baker on 5/18/2007. (ESC )

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White v. Volusia County School Board et al Doc. 3 Case 6:07-cv-00822-JA-DAB Document 3 Filed 05/18/2007 Page 1 of 3 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MARJORIE R. WHITE, Plaintiff, -vsVOLUSIA COUNTY SCHOOL BOARD, AND MARGARET SMITH, Superintendent, Defendants. ________________________________________ Case No. 6:07-cv-822-Orl-28DAB REPORT AND RECOMMENDATION TO THE UNITED STATES DISTRICT COURT This cause came on for consideration without oral argument on the following motion filed herein: MOTION: MOTION TO PROCEED IN FORMA PAUPERIS (Doc. No. 2) FILED: May 16, 2007 _____________________________________________________________ THEREON it is RECOMMENDED that the motion be DENIED. Upon submitting an affidavit of indigency, any court of the United States may authorize a party to proceed in forma pauperis. 28 U.S.C. 1915(a). However, the Court may dismiss the case or refuse to permit it to continue without payment of fees if the Court determines that the action is frivolous or malicious. A cause of action should not be considered frivolous unless it is "without arguable merit." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991), cert. denied, 503 U.S. 921 Dockets.Justia.com Case 6:07-cv-00822-JA-DAB Document 3 Filed 05/18/2007 Page 2 of 3 (1992) (quoting Harris v. Menendez, 817 F.2d 737, 739 (11th Cir. 1987)). To determine if a plaintiff should be permitted to proceed in forma pauperis, a district court must determine "whether there is `a factual and legal basis . . . for the asserted wrong, however inartfully pleaded.'" Id. quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir. 1976). Here, Plaintiff asserts that the basis of her action is age discrimination, "demotion without cause or notice." Although it is clear from her Complaint that Plaintiff feels she was treated unfairly by her employer with respect to an inventory control audit issue, the Complaint is devoid of any allegations that the allegedly unfair treatment was due to her age.1 Generally speaking, there is no cause of action for unfair treatment in the workplace, unless that treatment was motivated by discriminatory intent. Here, no such allegation is present. As pled, the Complaint fails to state a cause of action. Additionally, Plaintiff's financial affidavit indicates that she receives a regular income and has assets that disqualify her for pauper status. It is therefore respectfully recommended that the motion be denied and the Complaint be dismissed, with leave to amend. Should this recommendation be adopted, Plaintiff, if she wishes to proceed with this action, should be directed to pay the filing fee and file an amended complaint which states a cause of action within the limited jurisdiction of this Court. Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal. Although the attachments to the Complaint indicate that Plaintiff is 64 years old, she does not allege that her age was the reason she was demoted without cause. 1 -2- Case 6:07-cv-00822-JA-DAB Document 3 Filed 05/18/2007 Page 3 of 3 Recommended in Orlando, Florida on May 18, 2007. David A. Baker DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE Copies furnished to: Presiding District Judge Unrepresented Party Courtroom Deputy -3-

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