VAN DURR v. GEITHNER et al

Filing 6

ORDER GRANTING 4 MOTION for Leave to Proceed in forma pauperis filed by WINZOIR VAN DURR. Clerk directed to send Plaintiff a blank pro se employment complaint form. (Amended Pleadings due by 1/5/2012.). Signed by MAGISTRATE JUDGE GARY R JONES on 12/6/2011. (Pro se employment complaint form sent to Plaintiff.) (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
WINZOIR VAN DURR,
Plaintiff,
v.

CASE NO. 1:11-cv-227-MP-GRJ

TIMOTHY FRANZ GEITHNER, et al.,
Defendants.
____________________________/
ORDER
Plaintiff initiated this case by filing a pro se civil rights complaint and seeks leave
to proceed as a pauper pursuant to 28 U.S.C § 1915. (Docs. 1, 4.) The Court finds that
leave to proceed as a pauper should be granted. However, Plaintiff must file an
amended complaint for further consideration by the Court before the case may proceed.
Plaintiff did not file his complaint on the Court’s designated form, but instead
appears to have attempted to duplicate the Court’s pro se civil rights complaint form.
However, the pro se employment discrimination complaint form is appropriate, as
Plaintiff contends that his former employer the Department of the Treasury
discriminated against him because of a disability. Plaintiff also alleges that the U.S.
Equal Employment Opportunity mishandled his appeal by not including constructive
discharge and/or seeks to enforce an EEOC ruling against the Department of Treasury.
Plaintiff names four Defendants: Timothy Franz Geithner, Department of the
Treasury; Mariam G. Harvey, Director of the Office of Civil Rights and Diversity; Carlton
M. Hadden, Director of the U.S. EEOC; and Colleen A. Crane of the EEOC. Plaintiff
cites violations of Executive Order 5396; 29 C.F.R. § § 1614.405(b), 1614.407,

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1614.408, and 1614.503(g); Title I and Title V of the Americans with Disabilities Act of
1990; and § 503 of the Rehabilitation Act of 1973.
When amending his complaint on the proper form, Plaintiff is advised that “the
Rehabilitation Act, 29 U.S.C. § § 791, 794, and 794(a) provides the exclusive remedy
for federal government employees seeking damages and relief for work-place
discrimination based on disability.” Lapar v. Potter, 395 F. Supp. 2d 1152, 1157 (M.D.
Fla. 2005) (citing Rio v. Runyon, 972 F. Supp. 1446, 1454 (S.D. Fla. 1997), aff’d 159
F.3d 1360 (11th Cir. 1998)). Furthermore, the “only proper defendant in a. . .claim of
discrimination under the Rehabilitation Act is the head of the agency accused of having
discriminated against the Plaintiff.” Farrell v. United States Dep’t of Justice, 910 F.
Supp. 615, 618 (M.D. Fla. 1995); see also 42 U.S.C. § 2000e-16(c). To the extent
Plaintiff seeks to assert a claim under the Americans with Disabilities Act, federal
employment is specifically excluded from ADA coverage. 42 U.S.C. § 12111(5)(B)(c).
Therefore, Plaintiff’s claim for disability discrimination against his former federal
employer lies solely in the Rehabilitation Act and the only proper defendant would be
the head of the Department of Treasury in his official capacity.
Accordingly, it is hereby ORDERED:
1. Plaintiff’s motion for leave to proceed as a pauper, Doc. 4, is GRANTED.
2. The Clerk is directed to send the Plaintiff a blank pro se employment
discrimination complaint form and instructions. Plaintiff shall fully complete the
complaint form using clearly legible type or handwriting. In amending his
Complaint, Plaintiff shall not refer back to his original Complaint or incorporate
any part of his original Complaint by reference. Plaintiff shall file the amended
complaint, together with an identical copy for each named Defendant, on or
before January 5, 2012.
3. Failure to comply with this Order in the allotted time will result in a
Case No: 1:11-227-MP-GRJ

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recommendation to the district judge that this cause be dismissed.
DONE AND ORDERED this 6th day of December 2011.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 1:11-227-MP-GRJ