Thomas v. Centerplate, Inc. et al

Filing 6

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. To the extent Plaintiff is attempting to raise a claim under 42 U.S.C. 1983 in this action, such a claim is DISMISSED pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failu re to state a claim upon which relief may be granted. The Clerk of Court is DIRECTED to write the instant action number and Amended Complaint on a Title VII form and send it to Plaintiff for completion. Within 30 days of the entry date of this Memorandum and Order, Plaintiff must fully complete and submit his complaint on a court-supplied Title VII form and attach a copy of his EEOC right-to-sue letter. Signed by Senior Judge John G. Heyburn, II. cc: Plaintiff, pro se (EM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUSIVILLE DIVISION
WINSTON A. THOMAS
V.

PLAINTIFF
CIVIL ACTION NO. 3:14CV-700-H

CENTERPLATE INC. et al.

DEFENDANTS
MEMORANDUM AND ORDER

Plaintiff Winston A. Thomas filed a pro se complaint pursuant to 42 U.S.C. § 1983 and
42 U.S.C. § 2000e-3 along with an application to proceed without prepayment of fees.
Upon consideration, IT IS ORDERED that the application (DN 3) is GRANTED.
Because Plaintiff is proceeding without the prepayment of fees, or in forma pauperis,
the Court must review the action pursuant to 28 U.S.C. § 1915(e)(2) and McGore v.
Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007).
I. STANDARD OF REVIEW
On preliminary review, a district court must dismiss a case at any time if it determines
that the action is frivolous or malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B). In order to survive dismissal for failure to state a claim, “a complaint must
contain 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] district court must (1) view the complaint in the light most favorable to the plaintiff
and (2) take all well-pleaded factual allegations as true.” Tackett v. M & G Polymers, USA, LLC,

561 F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009)
(citations omitted)). “But the district court need not accept a ‘bare assertion of legal
conclusions.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d at 488 (quoting Columbia
Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995)). The court’s duty “does not
require [it] to conjure up unpled allegations,” McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979),
or to create a claim for a plaintiff. Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169
(6th Cir. 1975). To command otherwise would require the Court “to explore exhaustively all
potential claims of a pro se plaintiff, [and] would also transform the district court from its
legitimate advisory role to the improper role of an advocate seeking out the strongest arguments
and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
II. STATEMENT OF THE CASE
Plaintiff brings this action against five Defendants who he identifies as follows:
(1) Centerplate Inc.; (2) Martin Durbin, General Manager; (3) Wes Duke, Assistant General
Manager; (4) Mark Huff, Bar Manager; and (5) Michael Ortman, U of L Stadium Manager. He
asks for no specific relief, but requests the Court to grant his “motion to hear this notice pursuant
to 42 U.S.C. Section 2000e-3, and pursuant to Rule 3.”
In his complaint, Plaintiff states as follows:
Winston A. Thomas, Pro-se, respectfully requests that this Court hear this motion
pursuant to Rule 3 of the Federal Rules of Civil Procedure and 42 U.S.C. Section
2000e-3. In support of this Motion, Mr. Thomas, shows the Court: 1. The statute
governing discrimination involving state or corporate actors, 42 U.S.C. Section
20000e-3, provides it shall be an unlawful employment practice for an employer
to discriminate against any of his employees, because he has made an unlawful
employment practice, . . . if it is satisfied that such action is warranted by the
conduct of the defendants and in the interest of justice. 2. On September 15,
2014, Mr. Thomas, or sometime thereafter, was terminated by defendant’s
conduct be a cause in fact of intent or motive in unlawful employment practices.
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3. Mr. Thomas after having gainful employment with Centerplate Inc., began
July 27, 2010, never without any incidents, written warnings, oral warnings,
probations, or counseling notices. 4. On August 25, 2014, Desmond Hague,
CEO of Centerplate, the company issued a statement involving Des Hague a
personal matter, where in July of 2014, was caught on camera kicking a dog in a
Vancouver elevator. Hague was put on probation within the company, he agreed
to donate $100,000 to an animal charity, and served 1,000 hours of community
service. 5. On June 29, 2013, during “The Star Spangled Night,” or sometime
thereafter, Mark Huff, bar manager for Centerplate at Papa John’s Cardinal
Stadium, sexually assaulted, physically groped, and verbally insulted Jason
Karsner, while Jason worked attending a Bar at Churchill Downs. Martin Durbin,
general manager and Wes Duke, asst. general manager, when knowing of this
incident from other employees, who reported Mark Huff for this personal attack
upon another employee, with these explicit advances for sex, did nothing to this
employee. 6. Since July 27, 2010, Mr. Thomas has fulfilled all the conditions of
his managerial duties, by his performance being a full-time employee . . . .
III. ANALYSIS
A. 42 U.S.C. § 1983
In the complaint, Plaintiff states that the jurisdiction for this action is 42 U.S.C. § 1983.
To state a claim under § 1983, a plaintiff must allege that 1) a right secured by the Constitution
or a federal statute has been violated, and 2) the violation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flanory v. Bonn, 604 F.3d 249,
253 (6th Cir. 2010). A complaint filed under § 1983 must show a causal connection between
each of the named Defendants and the alleged constitutional deprivation. A § 1983 complaint
must allege that specific conduct by each Defendant was the proximate cause of the
constitutional injury. King v. Massarweh, 782 F.2d 825, 828-29 (9th Cir. 1986). “Congress did
not intend § 1983 liability to attach where causation is absent.” Deaton v. Montgomery Cnty.
Ohio, 989 F.2d 885, 889 (6th Cir. 1993). To establish causation, Plaintiff must adduce “an
affirmative link . . . [a] moving force that animated the behavior . . . that resulted in the
constitutional violations alleged.” Id. When the theory of causation is a matter of pure
speculation and is nothing more than a hypothetical argument, the pleadings are insufficient to
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sustain a compensable § 1983 claim. Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 659 (6th
Cir. 1994).
In the present case, Plaintiff does not state any federal statutory or constitutional right
that he alleges has been violated. Nor does he allege that Defendants are persons who were
acting under color of state law. Further, Plaintiff fails to connect any alleged wrongdoing to any
of the named Defendants. Therefore, Plaintiff fails to state a claim under 42 U.S.C. § 1983.
Accordingly, to the extent Plaintiff is attempting to raise a claim under 42 U.S.C. § 1983
in this action, such a claim is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to state a claim upon which relief may be granted.
B. Title VII
Based upon the limited allegations made in Plaintiff’s complaint, it appears that he is
attempting to bring an action under Title VII of the Civil Rights Act of 1964. However, he did
not file this action on a Title VII form, and he did not attach a copy of his right-to-sue letter from
the Equal Employment Opportunity Commission (EEOC). See E.E.O.C v. Frank’s Nursery &
Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999) (“An individual may not file suit under Title VII
if [he] does not possess a ‘right to sue’ letter from the EEOC.”).
IT IS THEREFORE ORDERED that within 30 days of the entry date of this
Memorandum and Order, Plaintiff must fully complete and submit his complaint on a
court-supplied Title VII form and must attach a copy of his EEOC right-to-sue letter.
Plaintiff is WARNED that his failure to comply with either part of this Order within the time
allowed may result in dismissal of this action. The Clerk of Court is DIRECTED to write

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the instant action number and “Amended Complaint” on a Title VII form and send it to
Plaintiff for completion.
Date:

November 19, 2014

cc: Plaintiff
4412.003

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