Lister v. Griffin et al
MEMORANDUM AND ORDER granting 29 Motion by defendant SMG Management to Dismiss for Failure to State a Claim. Signed by District Judge Richard D. Rogers on 7/20/2012.Mailed to pro se party James Lee Lister by regular mail (meh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES LEE LISTER,
Case No. 11-1183-RDR
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant SMG
Management’s motion to dismiss.
SMG Management seeks dismissal
because (1) plaintiff has failed to state a claim upon which relief
Plaintiff, who is proceeding pro se and in forma pauperis, has
failed to file a timely response to SMG Management’s motion.
Having carefully reviewed the motion, the court is now prepared to
Plaintiff asserts Title VII claims against SMG Management. He
claims that he was not promoted during his employment with SMG
Management and then fired from his employment due to his race,
African-American, and his religion, Islamic.
Plaintiff filed this
action on July 14, 2011.
In his original complaint, plaintiff
plaintiff had sued the wrong defendants because personal capacity
actions against individual supervisors are not allowed under Title
The court agreed in an order of January 12, 2012.
however, allowed plaintiff fifteen days to name his employer as the
Plaintiff subsequently filed an amended complaint on
February 7, 2012 naming SMG Management as the defendant.
Management was ultimately served on March 8, 2012.
filed the instant motion on April 9, 2012.
In its motion, SMG Management contends that plaintiff has
failed to state a claim against it for discrimination in violation
of Title VII based upon race or religion.
SMG Management suggests
that facts set forth in the complaint fail to adequately state a
claim for race and religion discrimination.
SMG Management argues
that plaintiff has not set forth sufficient facts within the
complaint to state a claim to relief that is plausible on its face.
SMG Management also contends that plaintiff’s claims against
it are time-barred.
SMG Management points out the plaintiff filed
his amended complaint after the expiration of the ninety-day period
following his receipt of a right-to-sue letter.
In ruling on defendant’s motion to dismiss for failure to
state a claim under Fed.R.Civ.P. 12(b)(6), the court assumes as
true all well-pleaded factual allegations and determines whether
they plausibly give rise to an entitlement of relief.
Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss,
a complaint must contain sufficient factual matter to state a claim
which is plausible-—and not merely conceivable-—on its face. Id.;
determining whether a complaint states a plausible claim for
relief, the court draws on its judicial experience and common
Iqbal, 556 U.S. at 679.
The court need not accept as true those allegations which
state only legal conclusions. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Plaintiff bears the burden to frame his complaint
with enough factual matter to suggest that he is entitled to
relief; it is not enough to make threadbare recitals of a cause of
action accompanied by mere conclusory statements.
Iqbal, 556 U.S.
Plaintiff makes a facially plausible claim when he pleads
factual content from which the court can reasonably infer that
defendant is liable for the misconduct alleged.
must show more than a sheer possibility that defendant has acted
unlawfully-—it is not enough to plead facts that are “merely
consistent with” defendant’s liability.
Twombly, 550 U.S. at 557).
Id. at 678 (quoting
A pleading which offers labels and
conclusions, a formulaic recitation of the elements of a cause of
action, or naked assertions devoid of further factual enhancement
will not stand.
Similarly, where the well-pleaded facts do
not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—-but not “shown”-—that the
pleader is entitled to relief.
Finally, the degree of
specificity necessary to establish plausibility and fair notice
depends on context, because what constitutes fair notice under
Fed.R.Civ.P. 8(a)(2) depends upon the type of case.
Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 232–33 (3rd Cir. 2008)).
The court construes plaintiff’s pro se complaint liberally and
holds it to a less stringent standard than formal pleadings drafted
See Hall, 935 F.2d at 1110.
The court, however, does
not assume the role of advocate for a pro se litigant.
Recently, in Khalik v. United Airlines, 671 F.3d 1188, 1190
requirements for a discrimination action. The court explained that
“while Plaintiff is not required to set forth a prima facie case
for each element [of discrimination], [he] is required to set forth
671 F.3d at 1193.
“While specific facts are
not necessary, some facts are.” Id. (internal citations omitted).
“[A] plaintiff should have at least some relevant information to
make the claims plausible on their face.”
In a form complaint supplied by the court, plaintiff indicated
that he was proceeding under Title VII. He further alleged that he
was discriminated because of his race and his religion.
portion of the complaint asking him to “[d]escribe specifically the
conduct [he] believe[s] is discriminatory,” he wrote the following:
Around 11-2009 I was hired at the intrust bank arena
by former operations manager Shawn McGregor a White male.
On 12-7-2009 myself and 3 other part-time operations was
given orientation by human resources Kim Hillard a White
female, and we was told they promote from within. Twice
a full time position came open myself, a blk male was
denied promotion to full time by operations director
Frank Griffin and human resources Kim Hillard. I was
well qualified for the position as was Rick Ross a blk
male. Both times position was given to two white males.
I was also fired unlawfully. I feel cause of my Race and
denied promotion by Race.
The court is in agreement with some of SMG Management’s
contentions. Even viewing the complaint liberally, the court finds
that plaintiff has failed to adequately state any claims based upon
mention of any basis for these claims.
The court also finds that
plaintiff has failed to state a claim that his termination was
based upon race discrimination.
The complaint contains only
conclusory allegations of discrimination.
no facts to support this claim.
The complaint contains
The court, however, is persuaded
discrimination in the denial of promotions. He has alleged that he
was qualified for the positions and that they were given to whites.
plaintiff is proceeding pro se, are adequate to avoid a motion to
dismiss under Rule 12(b)(6).
The court shall now turn to the defendant’s arguments that
plaintiff’s claims are time-barred.
SMG Management contends that
this action is time-barred because plaintiff failed to bring the
claims against it within 90 days of his receipt of a right-to-sue
letter as required by Title VII.
A plaintiff must initiate litigation on a Title VII claim
within ninety days from the date he receives a “right-to-sue”
letter from the EEOC.
See 42 U.S.C. § 2000e-5(f)(1) (providing
filing deadlines for Title VII claims). This timing requirement is
a prerequisite to a civil suit.
Croy v. Cobe Labs., Inc., 345 F.3d
1199, 1202 (10th Cir. 2003).
The court is compelled to grant the defendant’s argument.
Based upon the present record, SMG Management is entitled to
The record shows that plaintiff failed to bring suit
against SMG Management within 90 days of the receipt of the rightto-sue letter.
In reaching this conclusion, the court notes that
Plaintiff understands the need to respond to motions to dismiss
because he has done so in the past.
See Doc. # 15.
have had grounds to avoid dismissal by arguing that his amended
complaint related back to the filing of his original complaint.
See Fed.R.Civ.P. 15(c)(1)(C) (amendment that changes party relates
back if the new party (i) received such notice of the action that
it will not be prejudiced in defending on the merits; and (ii) knew
or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s
identity). Plaintiff, however, has waived this argument by failing
to respond to the defendant’s motion.
Plaintiff has the burden of
See Green v. Union Foundry Co., 281 F.3d 1229, 1233
(11th Cir. 2002) (“Once the defendant contests this issue the
plaintiff has the burden of establishing that he met the ninety day
filing requirement.”); Al-Dahir v. FBI, 454 Fed.Appx. 238, 242 (5th
Cir. 2011) (“Plaintiffs have the burden to demonstrate that an
plaintiff failed to respond to the defendant’s motion to dismiss,
he has not done so.
Accordingly, the court must grant SMG
Management’s motion to dismiss.
IT IS THEREFORE ORDERED that defendant SMG Management’s motion
to dismiss (Doc. # 29) be hereby granted.
against SMG Management is hereby dismissed as time-barred.
IT IS SO ORDERED.
Dated this 20th day of July, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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