Makungu v. Morningside Nursing and Memory Care

Filing 3

OPINION AND ORDER: DENYING 2 MOTION for Leave to Proceed in forma pauperis by Plaintiff Richard Makungu and DISMISSING the Complaint WITHOUT PREJUDICE. The Plaintiff is GRANTED until 6/24/2016, to file an amended complaint, accompanied by a new Petition to Proceed Without Prepayment of Fees and Costs or the filing fee. Signed by Judge Theresa L Springmann on 5/18/2016. (lhc)(cc: Plaintiff)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
RICHARD MAKUNGU,
Plaintiff,
v.
MORNINGSIDE NURSING AND
MEMORY CARE,
Defendant.

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CAUSE NO.: 3:16-CV-86-TLS

OPINION AND ORDER
Richard Makungu, a Plaintiff proceeding pro se, filed an Employment Discrimination
Complaint [ECF No. 1] against the Defendant, Morningside Nursing and Memory Care. He also
filed a Petition to Proceed Without Pre-Payment of Fees and Costs [ECF No. 2]. For the reasons
set forth below, the Plaintiff’s Petition is DENIED. The Plaintiff’s Complaint is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and he is GRANTED
additional time to amend his Complaint, accompanied either by the statutory filing fee or another
Petition to Proceed Without Pre-Payment of Fees and Costs. If the Plaintiff fails to amend his
Complaint within the time allowed, the Clerk will be directed to close this case without further
notice to the Plaintiff.

DISCUSSION
Ordinarily, a plaintiff must pay a statutory filing fee to bring an action in federal court. 28
U.S.C. § 1914(a). However, the federal in forma pauperis (IFP) statute, 28 U.S.C. § 1915,
provides indigent litigants an opportunity for meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that access. See Neitzke v. Williams, 490 U.S.

319 (1989). To authorize a litigant to proceed IFP, a court must make two determinations: first,
whether the litigant is unable to pay the costs of commencing the action, 28 U.S.C. § 1915(a)(1);
and second, whether the action is frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is immune from such relief, 28
U.S.C. § 1915(e)(2)(B).
Under the first inquiry, an indigent party may commence an action in federal court,
without prepayment of costs and fees, upon submission of an affidavit asserting an inability “to
pay such costs or give security therefor.” 28 U.S.C. § 1915(a). Here, the Plaintiff’s Petition
establishes that he is unable to prepay the filing fee.
The inquiry does not end here, however. In assessing whether a petitioner may proceed
IFP, a court must look to the sufficiency of a complaint to determine whether it can be construed
as stating a claim for which relief can be granted or seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). District courts have the power under
28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the
defendants, and must dismiss the complaint if it fails to state a claim. Rowe v. Shake, 196 F.3d
778, 783 (7th Cir. 1999). Courts apply the same standard under § 1915(e)(2)(B) as when
addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th Cir. 2013).
To state a claim under the federal notice pleading standards, all that a complaint must do
is set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Factual allegations are accepted as true and need only give “‘fair notice of
what the . . . claim is and the grounds upon which it rests.’” EEOC v. Concentra Health Serv.,
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Inc., 496 F.3d 773, 776–77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). However, a plaintiff’s allegations must show that his entitlement to relief is
plausible, rather than merely speculative. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.
2008).
The Plaintiff’s Complaint does not identify the federal statute under which this lawsuit is
brought. (Compl. 1–2 (listing several federal statutes that provide a basis of claim and
jurisdiction, with none of these statutes checked).) Despite this, the Plaintiff alleges that he is a
“black African American not paid his wages even when he was cleared of an allegation.”
(Compl. 2 (emphasis omitted).) When directed to state the facts in support of his complaint, the
Plaintiff directs the reader to “see attachments.” (Compl. 2 (emphasis omitted).) These
attachments are (1) a letter from the Indiana State Department of Health informing the Plaintiff
about an allegation of abuse; (2) the Plaintiff’s written statement submitted in response to the
letter; (3) a letter from the Indiana State Department of Health stating that there is insufficient
evidence to support an allegation of abuse and that no further action will be taken; and (4) a letter
from the Plaintiff to his employer informing it of the investigation’s conclusion and a request to
be paid for the days he was suspended due to the investigation.
Because the Complaint identifies the Plaintiff’s race, the Court construes his Complaint
as alleging that the Defendant violated Title VII by discriminating against him on the basis of his
race.1 Title VII is premised on eliminating discrimination:

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The Plaintiff also does not indicate whether he filed a charge of discrimination with the Equal
Employment Opportunity Commission or the Indiana Civil Rights Commission, nor does he attach a
“Right to Sue Notice” from either of those entities. (Compl. 2.) Although a district court may not, at the
screening phase, dismiss a complaint that alleges a Title VII claim because the plaintiff failed to exhaust
administrative remedies, Kenney v. Prime Recruitors Trucking Co., 611 Fed. App’x 370, 370 (8th Cir.

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It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.
42 U.S.C.A. § 2000e-2.
Even with the relaxed standards that apply to pro se litigants, see Erickson v. Pardus, 551
U.S. 89, 94 (2007), the Complaint does not set forth any factual allegations that raise the
Plaintiff’s right to relief above the speculative level. Section IV of the form Complaint is
designated as the “Facts in Support of Complaint.” The Plaintiff—without reciting any factual
allegations—refers to attachments showing that an investigation occurred, the Plaintiff was
suspended without pay during that time, and the investigation was terminated without any finding
of wrongdoing by the Plaintiff. Even the most liberal reading of the Complaint fails to reveal an
inference of different or discriminatory treatment based on race, color, religion, sex, or national
origin. Although the Complaint identifies the protected category to which the Plaintiff belongs
and shows that he suffered adverse action by being suspended without pay, the Complaint does
not state that he was harmed based on a protected category or in retaliation for engaging in
protected activity. Because the Plaintiff does not identify the alleged motivation for the adverse
action, the Complaint does not provide the Defendant with fair notice of what the claim is.
Therefore, the Plaintiff’s request to proceed without prepayment of fees will be denied, and the
Complaint will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

2015) (per curiam); McIntyre v. City of Wilmington, 360 Fed. App’x 355, 356 (3d Cir. 2010) (per
curiam), a defendant may raise a plaintiff’s lack of a right-to-sue letter as an affirmative defense, Worth
v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001), subjecting the plaintiff’s Title VII claim to possible dismissal
at any time prior to the receipt of such a letter, Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991).

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The deficiency in the Complaint is of the type that can be easily cured if the Plaintiff
identifies the actions that were taken against him because of a protected status. Cf. Tamayo, 526
F.3d at 1084 (explaining that the pleading standard for “simple claims of race or sex
discrimination” is minimal and requires only that the plaintiff aver that the employer instituted a
certain adverse employment action against the plaintiff on the basis of sex or race). The Court
will grant the Plaintiff until June 24, 2016, to file an amended complaint. See Luevano, 722 F.3d
at 1022 (stating that a litigant proceeding under IFP statute has the same right to amend a
complaint as fee-paying plaintiffs have). When drafting his amended complaint, rather than just
writing “see attachments,” in Section IV of the form Complaint, which is titled “Facts in Support
of Complaint,” the Plaintiff should state the key facts supporting his claim. He should also
provide citations to the attached exhibits as needed. If the Plaintiff elects to file an amended
complaint, he must also file a new Petition to Proceed Without Prepayment of Fees and Costs or
pay the filing fee. If the Plaintiff does not file an amended complaint by June 24, 2016, the Court
will direct the Clerk to close this case.2

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As already discussed, it is unclear whether the Plaintiff actually intends to allege that he was
subjected to racial discrimination. The Plaintiff my resolve this vagueness by completely filing out the
form Complaint and/or adequately alleging a Title VII claim. The Court notes that if the Plaintiff is
merely asserting that he should have been paid during the time he was suspended, this Court likely lacks
subject matter jurisdiction to adjudicate the Plaintiff’s claim. Federal courts are courts of limited
jurisdiction, meaning that they possess only those powers granted by the Constitution and by statute.
Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1316 (7th Cir. 1997). Generally, a federal court cannot
hear a case unless a plaintiff’s claim invokes federal question jurisdiction or another independent
statutory grant of jurisdiction to the district courts. However, a plaintiff may file a case in federal court
alleging a violation of state law if the requirements of 28 U.S.C. § 1332 are met. As currently pled, the
Plaintiff’s Complaint does not allege a sufficient amount in controversy to fall within this statute.
Further, although the Plaintiff lists a Michigan address, he does not plead his own citizenship—that is,
where he is domiciled. If a federal court cannot hear the Plaintiff’s claim, he may seek relief in a state
court of competent jurisdiction.

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CONCLUSION
For the foregoing reasons, the Court DENIES the Plaintiff’s Petition to Proceed Without
Prepayment of Fees and Costs [ECF No.2], and DISMISSES the Complaint WITHOUT
PREJUDICE. The Plaintiff is GRANTED until June 24, 2016, to file an amended complaint,
accompanied by a new Petition to Proceed Without Prepayment of Fees and Costs or the filing
fee.
SO ORDERED on May 18, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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