TUBBS v. INDIANA YOUTH CENTER
Filing
6
Entry and Order Dismissing Action: For the reasons explained above, therefore, the complaint fails to survive the screening required by 28 U.S.C. § 1915(e)(2)(B) and dismissal of the action is mandatory. Judgment consistent with this Entry shall now issue ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge Jane Magnus-Stinson on 9/18/2013. Copy sent to James Tubbs via US Mail.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JAMES TUBBS,
Plaintiff,
vs.
INDIANA DEPARTMENT OF CORRECTION,
et al.,
Defendants.
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Case No. 1:13-cv-001384-JMS-DKL
Entry and Order Dismissing Action
James E. Tubbs sues his former employer, the Indiana Department of Correction, and
more specifically the Indiana Youth Center, alleging that his employment was terminated on
April 21, 2008, for discriminatory and retaliatory reasons. His alleges violations of Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. He alleges that he
timely filed a charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) and that he received a right to sue notice on or about April 23, 2009. His motion to
proceed in forma pauperis was granted in the Entry of September 3, 2013.
District courts have an obligation under 28 U.S.C. § 1915(e)(2) (B) to screen complaints
before service on the defendants, and must dismiss the complaint if it is frivolous or malicious,
fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from
such relief. In determining whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). To survive dismissal
under federal pleading standards,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted).
In the Entry of September 3, 2013, the Court directed the plaintiff to show cause why the
action should not be dismissed 1) as untimely, and 2) because the same claims were brought in
the State Court Action. In response, the plaintiff submitted a copy of his right to sue notice dated
April 23, 2009, and reported that he was still trying to obtain relief through the EEOC but his
phone calls have not been returned. He did not specifically respond to the directions to report the
status of the State Court Action, but he alleged more circumstances under which he believes he
was refused a job after he returned to work from disability and he cites several state law
provisions.
As noted in the September 3, 2013, Entry, an employment discrimination lawsuit brought
pursuant to 42 U.S.C. § 2000e-5(f)(1) must be filed in district court within 90 days after the
receipt of a right to sue notice from the EEOC. See DeTata v. Rollprint Packaging Products,
Inc., 632 F.3d 962, 964 (7th Cir. 2011). The plaintiff has not provided any basis on which the
Court could consider this action timely-filed. The filing of this action is more than four years
late, and, although given the opportunity to do so, the plaintiff has offered no explanation for the
delay. Grzanecki v. Bravo Cucina Italiana, No. 10-2294, 408 Fed.Appx. 993 (7th Cir. Feb. 11,
2011) (affirming dismissal under § 1915(e)(2)(B) when plaintiff pleaded herself out of court by
making allegations that conclusively established her age discrimination complaint was filed four
days late). This defect is not one that could be cured with an amended complaint and the plaintiff
was given prior notice of the deficiency. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1023 (7th Cir. 2013).
The complaint thus fails to state a claim upon which relief can be granted. Jones v. Bock,
127 S. Ct. 910, 921 (2007) ("A complaint is subject to dismissal for failure to state a claim if the
allegations, taken as true, show that plaintiff is not entitled to relief."); Pugh v. Tribune Co., 521
F.3d 686, 699 (7th. Cir. 2008)(a complaint falls within this category if it “alleg[es] facts that
show there is no viable claim@).
For the reasons explained above, therefore, the complaint fails to survive the screening
required by 28 U.S.C. § 1915(e)(2)(B) and dismissal of the action is mandatory.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
09/18/2013
Date: __________________
Distribution:
James Tubbs
5837 Brobeck Lane
Indianapolis, IN 46254
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
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