Lewis v. Detroit Board of Education et al

Filing 9

ORDER GRANTING 2 Application to Proceed In Forma Pauperis filed by Sharon Lewis, DENYING 3 Application for Appointment of Counsel filed by Sharon Lewis AND DISMISSING COMPLAINT Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHARON LEWIS,
Plaintiff,
Case No. 12-12865
Hon. Lawrence P. Zatkoff

v.
DETROIT BOARD OF ED., JENKINS
CONSTRUCTION CO., and GRANGER
CONSTRUCTION CO.,
Defendants.
/

ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND
DISMISSING COMPLAINT
I. INTRODUCTION
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).
II. ANALYSIS
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
DENIED.
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

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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 five-page narrative. The narrative generally describes
Plaintiff’s claim that she complained to various state and federal agencies about 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. The narrative does not clearly state any claim, but instead conflates
a claim of retaliation with other allegations that DPS failed to address the alleged gas leak and
harassed Plaintiff for publicizing her alleged findings. 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. Plaintiff also discusses various complaints, reports,
and filings made with a variety of state and federal agencies, yet does not describe with any
particularity what type of complaint, report, or filing was made in each instance, to whom such was
submitted to, or what action was or was not taken in response. As such, Plaintiff’s claims were
neither “short and plain,” nor “ simple, concise, and direct.” See Fed. R. Civ. P. 8(a); (d).
Additionally, while setting forth no individual counts, Plaintiff’s complaint does state that
this action “is brought pursuant to the Occupational [Safety and Health] Act . . . for employment
discrimination.” Thus, it appears that Plaintiff is claiming retaliation under the federal Occupational
Safety and Health Act, 29 U.S.C. § 660. The Sixth Circuit, however, has held that no private right
of action exists that would permit an employee to pursue such a claim in this Court. See Taylor v.
Brighton Corp., 616 F.2d 256 (6th Cir.1980). Rather, the employee’s remedy is to file a complaint
with the Secretary of Labor. See 29 U.S.C. § 660(c); Taylor, 616 F.2d at 259.

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Accordingly, the Court finds Plaintiff’s complaint must be dismissed pursuant to § 1915(e)
as it fails to adequately state a claim upon which relief may be granted.
III. CONCLUSION
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]
is DENIED.
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: July 26, 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 July 26, 2012.

s/Marie E. Verlinde
Case Manager
[phone]

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