Hopkins v. EEOC et al

Filing 5

ORDER adopting 3 Report and Recommendation of the Magistrate Judge. Plaintiff's motion to proceed in forma pauperis (Doc. 2) is DENIED. The Clerk is directed to DISMISS this case and close the file. Signed by Judge Charlene Edwards Honeywell on 10/11/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHELLE HOPKINS,
Plaintiff,
v.

Case No: 6:13-cv-1171-Orl-36KRS

EEOC, ROBERT METAXA,
JACQUELINE A. BERRIEN, ARLENE
MARRERO-NARVAEZ and
MALCOLM S. MEDLEY,
Defendants.
ORDER
This cause comes before the Court upon the Report and Recommendation (”R&R”) filed
by Magistrate Judge Karla R. Spaulding on August 8, 2013. (Doc. 3.) In the Report and
Recommendation, Judge Spaulding recommends denying the motion to proceed in forma
pauperis (Doc. 2, “Application to Proceed in District Court Without Prepaying Fees or Costs”)
filed by Plaintiff Michelle Hopkins (“Hopkins” or “Plaintiff”) and dismissing the case. Id. at 2.
Hopkins filed an objection to the Report and Recommendation on August 19, 2013
(“Objections”).

(Doc. 4, “Response to Recommendation.”)

Accordingly, the Report and

Recommendation is ripe for review.
Federal Rule of Civil Procedure 72(b)(2), in pertinent part, provides that “a party may
serve and file specific written objections to . . . proposed findings and recommendations.” Once
a timely objection to the Report and Recommendation is made, the district judge “shall make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State
Board of Education of State of Georgia, 896 F.2d 507, 512 (11th Cir. 1990). The district judge

may accept, reject, or modify in whole or in part, the report and recommendation of the
magistrate judge. Fed. R. Civ. P. 72(b)(3). The district judge may also receive further evidence
or recommit the matter to the magistrate judge with further instructions. Id. The district judge
reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v.
Southern Ry., 37 F.3d 603, 604 (11th Cir. 1994).
Hopkins seeks to proceed in forma pauperis (Doc. 2) in this action brought as a result of
the alleged mishandling of the employment discrimination charges she filed with the EEOC
(Doc. 1 at 2). She sues the EEOC office in Miami as well as individual employees of the EEOC
for this alleged mishandling. (Doc. 1 at 2.) The Magistrate Judge recommends denying the in
forma pauperis motion on the ground that Plaintiff’s Complaint is frivolous because it “lacks an
arguable basis in law or in fact.” See R&R at 1-2 (citing 28 U.S.C. § 1915(e)(2)(B)1; Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). The Court agrees.
The Magistrate Judge correctly cited caselaw which notes that “there is no cause of action
against the EEOC for its alleged mishandling of a discrimination complaint against a third
party.” R&R at 2 (citing Irwin v. Miami-Dade County Public Schools, 398 Fed. Appx. 503, 506
(11th Cir. 2010); Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997)). Instead, pursuant to 42
U.S.C. § 2000e-5(f)(1)2, Congress has given aggrieved employees the right to sue their

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Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to consider whether the plaintiff’s
complaint is frivolous, 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.
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42 U.S.C. § 2000e-5(f)(1) provides, in relevant part:
If a charge filed with the Commission . . . is dismissed . . . or if within one
hundred and eighty days from the filing of such charge or the expiration of any
period of reference . . ., whichever is later, the Commission has not filed a civil
action under this section . . ., or the Commission has not entered into a
conciliation agreement to which the person aggrieved is a party, the Commission .

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employers directly if the EEOC has mishandled their discrimination charges. Smith, 119 F.3d at
34. “The retention of [a] private right of action . . . [wa]s designed to make sure that the person
aggrieved does not have to endure lengthy delays if the Commission . . . does not act with due
diligence and speed. . . . [A]s the individual’s rights to redress are paramount under the
provisions of Title VII[,] it [wa]s necessary that all avenues [were] left open for quick and
effective relief.” Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 365-66 (1977).
In Plaintiff’s Objections to the Report and Recommendation, she asserts that she brought
the claims in her Complaint “under the Civil Rights Act, 42 U.S.C. § 1983, [which] says
individual employees of federal, state and local government may be sued in their individual
capacities for damages, declaratory or injunctive relief.” Doc. 4 at 1. In fact, 42 U.S.C. § 1983
provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress applicable exclusively to the
District of Columbia shall be considered to be a statute of the District of
Columbia.
To establish a claim for a constitutional violation under 42 U.S.C. § 1983, a plaintiff must
establish (1) a violation of a constitutional right and (2) that the alleged violation was committed

. . shall so notify the person aggrieved and within ninety days after the giving of
such notice a civil action may be brought against the respondent named in the
charge (A) by the person claiming to be aggrieved or (B) if such charge was filed
by a member of the Commission, by any person whom the charge alleges was
aggrieved by the unlawful employment practice.

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by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here,
because none of the individuals Hopkins sued were state actors, her claim under Section 1983
must fail. See Allen v. U.S. EEOC Office, 366 Fed. App’x 972, 974 (11th Cir. 2010) (“Section
1983 does not apply to federal actors acting under color of federal law.”) (citations omitted);
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Personal-capacity suits seek to impose personal
liability upon a government official for actions he takes under color of state law.”).
On the contrary, a Bivens action provides a remedy for constitutional violations when
federal actors are involved, such as the EEOC employees Plaintiff has sued in this action. Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971); see
also Hindman v. Healy, 278 Fed. App’x 893, 895 (11th Cir. 2008) (noting that a Bivens action is
analogous to Section 1983 suits against state and local officers); Benjamin v. Brookhaven
Science Associates, LLC, 387 F. Supp. 2d 146, 156-57 (E.D.N.Y. 2005) (noting that a Bivens
action is the non-statutory federal counterpart to a suit brought pursuant to 42 U.S.C. § 1983 and
is aimed at federal rather than state officials where an action can be brought against federal
agents in their individual capacities). However, Bivens actions can be brought directly under the
Constitution only where no alternative methods of obtaining redress exist. Hindman, 278 Fed.
App’x at 895; see also Irwin, 398 Fed. Appx. at 506 (“A Bivens action against individual federal
officials is appropriate only if there is no other adequate remedy.”). As the court has noted,
supra, Hopkins has a remedy for her claims against the EEOC employees that she has sued in
this action for allegedly mishandling her employment discrimination charges, and that is the
authority to sue her employer directly pursuant to 42 U.S.C. § 2000e-5(f)(1) for the alleged

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employment

discrimination.3

Therefore, Plaintiff’s Objections to the Report and

Recommendation have no merit.
Thus, after careful consideration of the Report and Recommendation of Magistrate Judge
Spaulding, in conjunction with an independent examination of the file, the Court is of the
opinion that the Report and Recommendation should be adopted, confirmed, and approved in all
respects.
Accordingly, it is hereby ORDERED as follows:
1. The Report and Recommendation of the Magistrate Judge (Doc. 3) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review;
2. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is DENIED.
3. The Clerk is directed to DISMISS this case and close the file.
DONE and ORDERED in Orlando, Florida on October 11, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Karla R. Spaulding

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In fact, Plaintiff Hopkins currently has three cases pending before this Court against her former
employer and certain employees of that employer, at Docket Numbers 6:12CV00734-CEH-KRS,
6:12CV001743-CEH-KRS, and 6:13CV00370-CEH-KRS.

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