Moseley v. Lynch

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action WITHOUT PREJUDICE and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case re 8 Amended Complaint, filed by Cary G. Moseley, Jr . The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 1/27/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/13/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

CARY G. MOSELEY, JR.,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-153

v.
LORETTA LYNCH,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court are Plaintiff’s Complaint, filed pursuant to the Americans with
Disabilities Act, (doc. 1), Plaintiff’s Motion for Leave to Proceed in Forma Pauperis, (doc. 3),
and his Motion to Appoint Counsel, (doc. 4).

For the reasons set forth below, the Court

DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis, (doc. 3), and DISMISSES
as moot Plaintiff’s Motion to Appoint Counsel, (doc. 4). Additionally, I RECOMMEND that
the Court DISMISS this action without prejudice and DENY Plaintiff leave to appeal in forma
pauperis.
BACKGROUND
On November 16, 2016, Plaintiff filed this action, pro se, pursuant to the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), alleging employment discrimination
against him by his employer. (Doc. 1.) Concurrent with his Complaint, Plaintiff filed a Motion
to Proceed in Forma Pauperis. (Doc. 3.) On December 14, 2016, this Court directed Plaintiff to
amend his Complaint to include information regarding Plaintiff’s efforts to exhaust his
administrative remedies and in particular, whether he received a right-to-sue letter from the

Equal Employment Opportunity Commission (“EEOC”).

(Doc. 7.)

Plaintiff submitted an

Amended Complaint on January 5, 2017. (Doc. 8.) In his Amended Complaint, Plaintiff
provides a copy of his investigation file from the Bureau of Prisons and various other documents
pertaining to an internal investigation. (Id.) However, Plaintiff does not provide the right-to-sue
letter that he alleged he received on November 7, 2016, (doc. 1, p. 8), or any other
documentation regarding his attempt to exhaust administrative remedies with the EEOC.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit
without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all
of his assets and shows an inability to pay the filing fee and also includes a statement of the
nature of the action which shows that he is entitled to redress. Even if the plaintiff proves
indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)–(ii); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205,
at *2 (N.D. Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff’s complaint).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without

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arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Section 1915 also “accords judges not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims whose factual contentions are clearly
baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that standard, this Court
must determine whether the complaint contains “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not” suffice. Twombly, 550 U.S. at 555.
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

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DISCUSSION
I.

Denial of Leave to Procced in Forma Pauperis and Dismissal of Complaint
The Court clearly advised Plaintiff in its December 14, 2016, Order that, “Under Title

VII, and hence the ADA, the employee must wait for the EEOC to issue a right-to-sue letter
before filing suit. If the plaintiff has not received a right-to-sue letter at the time that suit is filed,
the action is subject to dismissal without prejudice.” (Doc. 6, p. 2.) However, despite the
Court’s explicit warning, Plaintiff failed to produce or provide any details regarding a right-tosue letter in his Amended Complaint. In fact, Plaintiff states that he “never received a copy of a
right-to-sue letter from the EEOC.” (Doc. 8, p. 1.) This statement is in direct contradiction with
his Complaint, where Plaintiff assertively states that he filed a charge with the EEOC in March
of 2015 and received his right-to-sue letter on November 7, 2016. (Doc. 1, p. 8.) 1 Again, a
right-to-sue letter from the EEOC is a prerequisite to bringing a claim under the ADA. Until
Plaintiff has provided the Court with evidence that he has fulfilled those prerequisites, the Court
cannot proceed with this action. Burns v. Zadach, No. CV408-197, 2009 WL 136065, at *1
(S.D. Ga. Jan. 20, 2009). In the event Plaintiff is able to timely file a charge with the EEOC and
the EEOC denies his complaint, Plaintiff may then re-file with this Court attaching the right-tosue letter that accompanies the notice of denial along with a new form complaint.
For all of these reasons, the Court DENIES Plaintiff’s Motion for Leave to Proceed in
forma pauperis, and I RECOMMEND that the Court DISMISS this action WITHOUT
PREJUDICE.
1

It appears from Plaintiff’s Amended Complaint that he may be confusing the EEOC with the Equal
Employment Opportunity Program within the Bureau of Prisons. Plaintiff states that he has enclosed “a
copy of the report of investigation from the EEOC when they investigated [his claims].” (Doc. 1, p.8.)
However, the attached report is from an internal investigation conducted by the Bureau of Prison’s Equal
Employment Opportunity Program. Their final investigation report does not take the place of a right-tosue letter from the EEOC.

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II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”). An appeal cannot be
taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is
filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal should.

2

A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See
Fed. R. App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2,
2007) (citing Mathis v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).
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CONCLUSION
For the above-stated reasons, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis and DISMISSES as moot Plaintiff’s Motion to Appoint Counsel. I RECOMMEND
that the Court DISMISS this action WITHOUT PREJUDICE and DIRECT the Clerk of Court
to enter the appropriate judgment of dismissal and to CLOSE this case. I further recommend
that the Court DENY Plaintiff leave to proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED, this 13th day of January, 2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA