Turner v. Northeastern University Public Safety Police et al

Filing 11

Judge Joseph L. Tauro: ORDER entered granting 2 Motion for Leave to Proceed in forma pauperis; denying 6 Motion to Dismiss; denying without prejudice 9 Motion for Extension of Time. If the plaintiff would like to proceed with this action, s he must, within 42 days of the date of this memorandum and order, file an amended complaint. Failure to comply with this direction will result in dismissal of the action for failure to state a claim upon which relief may be granted. If and when summonses issue, the plaintiff shall have 120 days to complete service. (PSSA, 3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CARDRIENNE TURNER,
Plaintiff,
v.
NORTHEASTERN UNIVERSITY PUBLIC
SAFETY POLICE, et al.,
Defendants.

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C.A. No. 13-11183-JLT

MEMORANDUM AND ORDER
November 7, 2013
TAURO, J.
For the reasons stated below, the Court (1) grants the plaintiff’s motion to proceed in forma
pauperis; and (2) directs the plaintiff to file an amended complaint.
Background
Cardrienne Turner, a former employee of Northeastern University (“NU”), brings this pro
se action against Northeastern University Public Safety Police and thirty-six current or former
officers or employees NU. Turner claims that the defendants discriminated against her on the
basis of race, gender, and disability and retaliated against her for complaining of the same. The
single-spaced typed “Petition for Judicial Review” (“complaint”) is thirty pages long. The
plaintiff states that she is bringing this action under 42 U.S.C. § 1983 (“ § 1983”) and she claims
that the defendants violated the First, Firth, and Fourteenth amendments to the United States
Constitution. Turner also seeks leave to proceed in forma pauperis.
Although summonses have not issued pending resolution of the filing fee and review of the
complaint pursuant to 28 U.S.C. § 1915(e)(2), on September 30, 2013, thirty-four of the
defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(5). Turner seeks additional time to
complete service and expedition of the Court’s review of the complaint.

Discussion
I.

Motion for Leave to Proceed In Forma Pauperis
Upon review of the plaintiff’s motion for leave to proceed in forma pauperis, the Court

concludes that she is without income or assets to pay the filing fee. Accordingly, the Court
GRANTS the motion.
II.

Screening of the Complaint
Where, as here, a plaintiff is allowed to proceed without prepayment of the filing fee,

summons do not issue until the Court reviews the complaint and determines that it satisfies the
substantive requirements of 28 U.S.C. § 1915. This statute authorizes federal courts to dismiss a
complaint sua sponte if the claims therein are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief against a defendant who is immune from such relief.
See 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b). In conducting this review, the Court liberally
construes the complaint because the plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972).
A.

Section 1983

Here, the plaintiff has failed to state a claim for relief under § 1983 for a violation of her
rights under the United States Constitution because the defendants are not state actors.1 “A section
1983 violation occurs when an official acting under color of state law acts to deprive an individual
of a federally protected right.” Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)
(emphasis added); see also 42 U.S.C. § 1983. Although § 1983 ordinarily does not create a right
of action against private parties, private conduct may be deemed to be “under color of state law”
when it is “fairly attributable” to the state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937
1

Claims for violations of federal rights by state actors must be brought under 42 U.S.C.
§ 1983. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“[A]
litigant complaining of a violation of a constitutional right does not have a direct cause of action
under the United States Constitution but [rather] must utilize 42 U.S.C. § 1983.”). “[Section] 1983
‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal
rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)).
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(1982). Here, Turner has not alleged any facts from which the Court may reasonably infer that the
defendants were acting under color of state law. It appears that all of the defendants are private
parties.
B.

Title VII and the ADA

Turner attached to her complaint a February 8, 2013 letter from the United States Equal
Employment Opportunity Commission indicating that it had investigated Turner’s charges that NU
had discriminated against her on the basis of race and disability. The inclusion of this letter,
together with the facts alleged in the complaint, suggests that Turner may also be attempting to
bring a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (“Title
VII”), which prohibits, inter alia, discrimination on the basis of race and gender and retaliation for
complaining of discrimination prohibited under the statute. She may also be attempting to bring a
claim under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq.,
prohibits disability discrimination in employment. However, these statutes does not provide for
liability against individuals who are not themselves employers. See Roman-Oliveras v. Puerto
Rico Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011) (ADA); Fantini v. Salem State College,
557 F.3d 22, 30 (1st Cir. 2009) (Title VII). Claims under these statutes must be brought against
the employer that allegedly violated the statute rather than individual employees. Here, Turner has
not brought this action against NU, her former employer. The named defendants are the
individuals allegedly responsible for the adverse employment actions against her. If Turner wishes
to pursue a claim under Title VII or Title I of the ADA, she must file an amended complaint in
which her former employer is the defendant.2

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Turner may file claims against individuals to the extent that she is able to state a claim
against them under federal law. The Court may also entertain state law claims against individuals
to the extent that such claims fall within the Court’s supplemental jurisdiction. See 28 U.S.C.
§ 1367(a).
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C.

Claims that Plaintiff Was Forced to Represent Herself

Plaintiff asserts throughout the complaint that various defendants wronged her by requiring
her to represent herself and not providing her counsel. However, the plaintiff does not identify nor
can the Court discern a cause of action in such allegations. Absent an employment or a collective
bargaining agreement requiring an employer or its attorney to provide an employee with counsel,
an employer is not required to provide an employee with an attorney.
D.

Filing of an Amended Complaint

The Court will give the plaintiff an opportunity to cure the above-discussed deficiencies by
filing an amended complaint. However, whatever the plaintiff’s cause(s) of action, the amended
complaint must comply with Rule 8(a) of the Federal Rules of Civil Procedure (“Rule 8(a)”) if it is
to state a claim upon which relief may be granted. Under this rule, a complaint must include “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). At a minimum, the complaint must “give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.” Calvi v. Knox County, 470 F.3d 422, 430
(1st Cir. 2006) (quoting Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66
(1st Cir. 2004)). This means that the statement of the claim must “at least set forth minimal facts
as to who did what to whom, when, where, and why.” Id. (quoting Educadores, 367 F.3d at 68).
Although the requirements of Rule 8(a)(2) are minimal, “minimal requirements are not tantamount
to nonexistent requirements.” Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.
1988)). Significantly, the plaintiff's obligation to provide the grounds of his claim “requires more
than labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court
is not “bound to accept as true a legal conclusion couched as a factual allegation.” Id. (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
In keeping with Rule 8(a), Turner must focus on making clear factual allegations about the
events in question. The original complaint is replete with conclusory allegations of wrongdoing;
however, bald assertions of discrimination, retaliation, or other wrongdoing without clear factual
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allegations to support such conclusions do not pass Rule 8(a) muster. Further, Turner must keep in
mind Rule 8(a)’s requirement that the complaint contain a “short and plain statement” of the claim.
The purpose of the complaint is not to set forth every factual detail related to the alleged
misconduct. It is to give the defendants notice of the causes of action being asserted against them
and the alleged misconduct giving rise to those claims. Moreover, it is inappropriate to include
legal argument in a complaint.
Conclusion
Accordingly:
1.

The motion (#2) for leave to proceed in forma pauperis is GRANTED.

2.

If the plaintiff would like to proceed with this action, she must, within forty-two

(42) days of the date of this memorandum and order, file an amended complaint. Failure to
comply with this direction will result in dismissal of the action for failure to state a claim upon
which relief may be granted.
3.

The motion to dismiss (#6) is DENIED as the plaintiff could not have properly

served the complaint prior to the issuance of summonses.
4.

The motion for extension of time (#9) is DENIED WITHOUT PREJUDICE. If and

when summonses issue, the plaintiff shall have 120 days to complete service.

IT IS SO ORDERED.
11/7/2013
DATE

/s/ Joseph L. Tauro
UNITED STATES DISTRICT JUDGE

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