Lewis v. Detroit Public Schools et al
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, DENYING REQUEST FOR APPOINTMENT OF COUNSEL, AND DISMISSING COMPLAINT. 2 Application to Proceed In Forma Pauperis filed by Sharon D Lewis, 3 Application for Appointment of Counsel filed by Sharon D Lewis Signed by District Judge Lawrence P. Zatkoff. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 12-11838
Hon. Lawrence P. Zatkoff
DETROIT PUBLIC SCHOOLS, et al.,
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND
Currently before the Court are Plaintiff’s Applications to Proceed in Forma Pauperis [dkt
2] and for Appointment of Counsel [dkt 3]. Plaintiff’s Application to Proceed in Forma Pauperis
is GRANTED; however, the Court will DENY Plaintiff’s Application for Appointment of Counsel
and DISMISS Plaintiff’s Complaint under 28 U.S.C. § 1915(e).
A. Plaintiff’s Request to Proceed In Forma Pauperis
Plaintiff has filed an application to proceed without prepayment of fees. Under 28 U.S.C.
§ 1915(a), “any court of the United States may authorize the commencement, prosecution or defense
of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person
who submits an affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.” The reference to assets of “such
prisoner” is likely a typographical error; thus, § 1915(a) applies to all natural persons. See Floyd
v. U.S. Postal Serv., 105 F.3d 274 (6th Cir. 1997). If a motion to proceed without prepayment of
fees is filed and accompanied by a facially-sufficient affidavit, the Court should allow the complaint
to be filed. See Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990) (citing Phillips v.
Carey, 638 F.2d 207, 208 (10th Cir. 1981)). Only after the complaint is filed is it tested to determine
whether it is frivolous or fails to state a claim. See id. at 261. The Court finds Plaintiff’s financial
affidavit facially sufficient; therefore, the Court will GRANT Plaintiff’s request to proceed without
prepayment of fees.
B. Application for Appointment of Counsel
Plaintiff has also requested that the Court appoint counsel on her behalf. “Appointment of
counsel in a civil case is not a constitutional right. It is a privilege that is justified only by
exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993) (citations
omitted). Plaintiff has not shown that exceptional circumstances warranting the appointment of
counsel exist in this case. Therefore, Plaintiff’s application for appointment of counsel [dkt 3] is
C. Review of Plaintiff’s Complaint
Upon granting a plaintiff’s request to proceed in forma pauperis, the Court performs a
preliminary screening of the complaint under several provisions of the United States Code. Pursuant
to 28 U.S.C. §§ 1915A, 1915(e), and 42 U.S.C. § 1997e(c)(1), the Court is to sua sponte dismiss the
case before service on Defendants if it determines that the action is frivolous or malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is
immune from such relief. The Court has a duty to construe a pro se plaintiff’s pleadings liberally,
see, e.g., Haines v. Kerner, 404 U.S. 519 (1972), but in doing so, it will not re-write a deficient
complaint or otherwise serve as counsel for that plaintiff. See GJR Invs, Inc. v. County of Escambia,
Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Construing Plaintiff’s complaint liberally, the Court
finds that Plaintiff has failed to state a claim upon which this Court may grant relief.
Plaintiff’s complaint consists of a nine-page narrative. The narrative generally describes
Plaintiff’s claim that she sought to reveal the Detroit Public Schools’ (“DPS”) cover-up of a gas leak
at Detroit’s Martin Luther King High School, and was retaliated against as a result. Instead of
clearly stating any claim, Plaintiff dedicates much of her complaint to allegations against several
DPS employees for “deception,” “cover-up,” and “sabotage.” Plaintiff, however, fails to state how
or whether these claims constitute cognizable causes of action in federal court, or how the claims
implicate the named Defendants in this case.
While setting forth no individual counts, Plaintiff’s complaint does state that “Plaintiff
requests the Defendants to accomodate [sic] my disability pursuant to the Americans with
Disabilities Act, pursuant to the Persons with Disabilities Civil Rights Act, and pursuant to any and
all other applicable federal and state laws.” Thus, it appears that Plaintiff is claiming retaliation or
discrimination under the federal Americans with Disabilities Act (“ADA”) and Michigan’s Persons
with Disabilities Civil Rights Act. To establish a prima facie case for ADA retaliation, Plaintiff
must establish that (1) she was engaged in a protected activity; (2) Defendant knew of her exercise
of this protected activity; (3) Defendant then took an adverse employment action; and (4) there was
a causal connection between the protected activity and Defendant’s actions. See Canitia v. Yellow
Freight System, Inc., 903 F.2d 1064, 1066 (6th Cir.1990) (citing Wrenn v. Gould, 808 F.2d 493 (6th
Cir.1987)). To establish a prima facie case for ADA disability-discrimination, a plaintiff must prove
that “(1) he or she is disabled; (2) otherwise qualified for the position with or without reasonable
accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason
to know of plaintiff's disability; and (5) the position remained open while the employer sought other
applicants or the disabled individual was replaced.” Timm v. Wright State Univ., 375 F.3d 418, 423
Plaintiff has failed to set forth sufficient factual allegations to support the elements of a claim
of ADA retaliation or discrimination. Plaintiff has, inter alia, failed to state with any particularity
how or whether she engaged in protected activity, or that there was a causal connection between the
protected activity and Defendant’s actions. Plaintiff has also failed to provide factual allegations
regarding her purported disability, stating that she is disabled yet not describing what, exactly, her
Additionally, Plaintiff’s apparent claim under Michigan’s Persons with Disabilities Civil
Rights Act is based on state law. Although the Court may exercise supplemental jurisdiction over
pendent state-law claims pursuant to 28 U.S.C. § 1367(a), the Court may decline to exercise
supplemental jurisdiction if there are “compelling reasons for declining jurisdiction.” Id. §
1367(c)(4). The Court finds that, notwithstanding the deficiencies of her apparent federal claim,
Plaintiff’s state-law claim raises novel and complex issues of state law that would be more
appropriately adjudicated by the state court.
See id. § 1367(c)(1).
contemporaneous presentation of Plaintiff’s parallel state claim for relief would result in the undue
confusion of the jury. See 28 U.S.C. § 1367(c)(4); see also Padilla v. City of Saginaw, 867 F. Supp.
1309, 1315 (E.D. Mich. 1994). As such, the Court declines to exercise supplemental jurisdiction
over Plaintiff’s apparent state-law claim in this matter.
Accordingly, the Court finds Plaintiff’s complaint must be dismissed pursuant to § 1915(e)
as it fails to state a claim upon which relief may be granted, and otherwise sets forth state-law claims
over which the Court declines to exercise supplemental jurisdiction. Additionally, Plaintiff has
failed to indicate whether she has exhausted administrative remedies to allow her to bring her ADA
claim in federal court.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to proceed in forma
pauperis [dkt 2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s application for appointment of counsel [dkt 3]
IT IS FURTHER ORDERED that Plaintiff’s complaint is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e).
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: May 17, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of
record by electronic or U.S. mail on May 17, 2012.
s/Marie E. Verlinde
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