James v. Amber et al

Filing 14

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 4/23/2018 re 10 Amended Complaint, 9 Amended Complaint. Wesley McCarty, Beverly Salazar, Security Guy, Amber Weigand, Amber (at Deli) and Joanna Gilley (Store Manager) terminated. cc: Defendants, Pro Se Plaintiff (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

RIMA JONES,

Plaintiff,

v.

Civil Action No. 3:17-cv-580-DJH

AMBER et al.,

Defendants.
* * * * *
MEMORANDUM OPINION AND ORDER

Plaintiff Rima Jones filed a pro se complaint alleging employment discrimination and
retaliation while employed at Wal Mart based on her national origin and religion in violation of
Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act (KCRA); based on
her disability in violation of the Americans with Disabilities Act (ADA); and based on her age in
violation of the Age Discrimination in Employment Act (ADEA). She also alleges criminal
conduct by some of the Defendants. Plaintiff included her right-to-sue letter issued by the Equal
Employment Opportunity Commission.
Because Plaintiff is proceeding in forma pauperis, this Court is required to screen the
complaint in accordance with 28 U.S.C. § 1915(e) 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). For
the reasons stated herein, the Court will allow Plaintiff’s discrimination and retaliation claims to
proceed against Defendant Wal Mart and dismiss her claims against the other Defendants.
I.
Plaintiff filed an original complaint on her own paper (Docket No. 1). Plaintiff listed the
Defendant as “Wal Mart et al.” in the caption of the complaint. The Court entered an Order
directing Plaintiff to file an amended complaint on the Court-approved form for an employment
discrimination claim (DN 5). That Order provided that the amended complaint would supersede

the original, handwritten complaint. Plaintiff then filed an amended complaint on the Courtapproved form (DN 6). The amended complaint lists as Defendants the following four
individuals who are employees of a Wal Mart store located in Louisville, Kentucky: Amber
Weigand, identified by Plaintiff as a Manager Trainee; Wesley McCarty, identified as a Manager
Trainee; Joanna Gilley, identified as a Store Manager; and Beverly Salazar, for whom Plaintiff
lists her job title as “Unknown.”
Because of discrepancies in the way Plaintiff wrote her first and last name in the
amended complaint, the Court entered an Order directing Plaintiff to modify the amended
complaint’s caption and signature page to reflect her full and correct name (DN 7). Plaintiff then
filed another amended complaint (DN 9). Upon review of this amended complaint (DN 9), the
Court concludes that the filing is a photocopy of the amended complaint. To clarify the docket
sheet, the Clerk of Court is DIRECTED to modify the docket sheet to reflect that the amended
complaint docketed at DN 9 is a photocopy of the amended complaint.
Plaintiff next filed another amended complaint, which is comprised of only the first two
pages of the Court-approved form for filing a complaint for a civil case (DN 10). The form lists
the Defendant in the caption as “Wal Mart, et al.” The Court construes the filing as a motion for
leave to amend to add Wal Mart as a Defendant to this action. Nothing that Plaintiff named Wal
Mart as a Defendant in her original, handwritten complaint, IT IS ORDERED that the motion
for leave to amend the complaint (DN 10) is GRANTED. The Clerk of Court is DIRECTED
to re-docket the amended complaint docketed at DN 10 as the second amended complaint.
In addition, the docket sheet lists “Amber at Deli” and “Security Guy” as Defendants.
Defendant Amber Weigand is presumably the same person as “Amber at Deli.” Plaintiff did not
list “Security Guy” as a Defendant in the amended or second amended complaint. Therefore, the

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Clerk of Court is DIRECTED to terminate “Amber at Deli” and “Security Guy” as parties to
this action.
II.
According to the amended complaint and attachments, Plaintiff was employed by
Wal Mart as a cashier from April 26, 2016, to March 4, 2017. She alleges that she was subjected
to discrimination and harassment by supervisors and other employees and that she was
terminated in retaliation for complaining about such conduct. In addition to her allegations of
discrimination, Plaintiff states as Count VII of her action,
CRIMINAL THREATS, THREATS OF VIOLENCE AGAINST AN
INDIVIDUAL, THREATEN DEATH OF BODILY HARM, PHYSICAL
THREAT, INTENTIONALLY PLACE ANOTHER PERSON IN FEAR OF
IMMINENT SERIOUS PHYSICAL INJURY, THREATENS TO COMMIT
ANY CRIME OF VIOLENCE WITH THE INTENT TO TERRORIZE
ANOTHER AND WITH RECKLESS DISREGARDS OF THE RISK OF
CAUSING TERROR/INCONVENIENCE.
She alleges that Defendant Salazar, her co-worker, “threaten[ed] to commit a crime of violence
upon Plaintiff with intent to terrorize Plaintiff.” As Count VIII of the complaint, she alleges that
Defendant Weigand engaged in money laundering.
III.
Upon 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). The trial court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Id. at 327. 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
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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 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.” Id. (citing Twombly, 550 U.S. at 556). “[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)).
Upon review of the amended and second amended complaints, the Court will allow
Plaintiff’s employment discrimination and retaliation claims under Title VII, the KCRA,
the ADA, and the ADEA to proceed against Defendant Wal Mart.
However, Plaintiff’s claims against Defendants Weigand, McCarty, Gilley, and Salazar
must be dismissed. “Title VII provides that ‘it shall be an unlawful employment practice for an
employer’ to discriminate on the basis of race, color, religion, sex, or national origin. A person
aggrieved by such discrimination may bring a civil action against the ‘employer.’” Wathen v.
Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997) (citing 42 U.S.C. §§ 2000e-2(a), 2000e-5(b))
(emphasis added). “[A]n individual employee/supervisor, who does not otherwise qualify as an
‘employer,’ may not be held personally liable under Title VII.” Id. Because the KCRA mirrors
Title VII, the Sixth Circuit found its holding to be “equally applicable” to the KCRA. Id. This
principle has also been applied in the ADA context, as well. See Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 808 n.1 (6th Cir. 1999) (“Individual supervisors who do not independently
qualify under the statutory definition of employers may not be held personally liable in ADA
cases.”). Moreover, the Wathen “decision has been extended to the ADEA[.]” Richardson v.
CVS Corp., 207 F. Supp. 2d 733, 743 (E.D. Tenn. 2001); Wilding v. Thompson, No. 3:12-CV4

00774-CRS, 2014 U.S. Dist. LEXIS 6075, at *9 (W.D. Ky. Jan. 17, 2014) (“Thompson, as an
individual employed by the Kentucky Department of Corrections, cannot be individually liable
under the ADEA because the Sixth Circuit has interpreted the ADEA to preclude suits against
individuals.”).
None of the facts alleged in the complaint, even liberally construed, suggest that
Defendants Weigand, McCarty, Gilley, or Salazar are “employers” as contemplated under Title
VII. Therefore, Plaintiff’s Title VII, KCRA, ADA, and ADEA claims against Defendants
Weigand, McCarty, Gilley, and Salazar must be dismissed for failure to state a claim upon which
relief may be granted.
Finally, Plaintiff alleges that some Defendants engaged in criminal activity, i.e., making
threats of violence against her and engaging in money laundering. However, Plaintiff cannot
bring criminal charges against any Defendant in the context of this civil action. The “[a]uthority
to initiate a criminal complaint rests exclusively with state and federal prosecutors.” Sahagian v.
Dickey, 646 F. Supp. 1502, 1506 (W.D. Wis. 1986); see also United States v. Nixon, 418 U.S.
683, 693 (1974) (“Executive Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case.”); Williams v. Luttrell, 99 F. App’x 705, 707 (6th Cir. 2004) (“[A]s
a private citizen, Williams has no authority to initiate a federal criminal prosecution of the
defendants for their alleged unlawful acts.”); Saro v. Brown, 11 F. App’x 387, 388 (6th Cir.
2001) (“A private citizen has no authority to initiate a federal criminal prosecution; that power is
vested exclusively in the executive branch.”). Moreover, to the extent Plaintiff seeks civil
remedies for any criminal violation, she has not cited any statute which gives rise to a private
civil cause of action. See Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989); Leach v. Manning, 105
F. Supp. 2d 707, 717 (E.D. Mich. 2000). Accordingly, Plaintiff’s claims alleging criminal
conduct must be dismissed for failure to state a claim upon which relief may be granted.
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III.
For the foregoing reasons, and the Court being otherwise sufficiently advised,
IT IS ORDERED that Plaintiff’s claims against Defendants Weigand, McCarty, Gilley,
and Salazar and all claims alleging criminal conduct are DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may granted.
The Clerk of Court is DIRECTED to terminate Defendants Weigand, McCarty, Gilley,
and Salazar as parties to this action.
The Court will enter a separate Order directing service on Defendant Wal Mart.
Date:

April 23, 2018

David J. Hale, Judge
United States District Court
cc:

Plaintiff, pro se
Defendants
4415.010

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