Harris v. National Hotel and Casino, LLC

Filing 33

ORDER allowing the pro se Plaintiff fourteen (14) days to craft a complaint to comply with the Twombley and Iqbal pleading standards. Signed by Magistrate Judge Jane M. Virden on 04/14/2015. (lec)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
KENNETH HARRIS

PLAINTIFF

VS.

CIVIL ACTION NO.: 4:14-cv-128-DMB-JMV

NATIONAL HOTEL AND CASINO, LLC

DEFENDANT

ORDER
This matter is before the court for a report and recommendation on the Defendant’s
Motion to Dismiss for Failure to State a Claim [27]. The court has considered the motion, and
the undersigned finds it is meritorious. She will recommend to the district judge that the case be
dismissed accordingly. But, in view of the plaintiff’s pro se status, the motion will remain on the
docket. Plaintiff will be allowed fourteen (14) days from the date hereof to amend his complaint
to comply with the Twombley and Iqbal pleading standards. Should Plaintiff elect to amend his
complaint, the court will reconsider its findings in light of the amended complaint. If Plaintiff
does not amend his complaint to adequately state a claim against Defendant, it will be
recommended to the District Judge that this case be dismissed on the Defendant’s Motion to
Dismiss for Failure to State a Claim.
Facts
This lawsuit arises out of an employment dispute between Plaintiff Kenneth Harris and
Defendant National Hotel and Casino. Specifically, Plaintiff alleges on or around August 29,
2013, he was illegally fired from his employment as a housekeeper at the Isle of Capri-Lula.
Compl. [1] at 5. Defendant contends Plaintiff was discharged for misconduct connected with his
work. Def.’s Mem. in Supp. of its Mot. to Set Aside Entry of Default [21] at 1. Plaintiff
commenced this action by filing his complaint in federal court on September 2, 2014. Compl.

[1] at 1. Specifically, he alleges he was fired because he stayed too long on his work break and
Defendant cannot produce video tapes of the same. Id. The complaint does not state any causes
of action brought against Defendant under federal or state employment law. Id. Plaintiff seeks
damages in the sum of one million and five hundred dollars ($1,000,500.00). Id. at 5. Defendant
filed a Motion to Dismiss for Failure to State a Claim on March 11, 2015. Def.’s Mot. to
Dismiss for Failure to State a Claim [27].
Standard of Review
A pleading must contain a short and plain statement of the claim, showing the pleader is
entitled to relief. FED. R. CIV. P. 8(a)(2). Motions to dismiss test the sufficiency of a plaintiff’s
complaint. See Guthrie v. Tifco Inds., 941 F.2d 374, 379 (5th Cir. 1991). To survive a motion to
dismiss, plaintiffs are required to plead “enough facts to state a claim to relief that it is plausible
on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (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.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). Put differently, “[f]actual allegations must be sufficient to raise a nonspeculative right to relief.” Colony Ins. Co. v. Peachtree Constr. Ltd., No. 09-11106, 647 F.3d
248 (5th Cir. July 19, 2011). “[C]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002).
Additionally, pro se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 51 U.S. 89, 93 (2007). “A pro se complaint
is to be construed liberally with all well-pleaded allegations taken as true.” Johnson v. Atkins,
999 F.2d 99, 100 (5th Cir. 1993). However, a liberally construed pro se complaint must still

present enough facts giving rise to a claim on which relief may be granted. Id.; see also Levitt v.
University of Texas at El Paso, 847 F.2d 221, 2254 (5th Cir. 1988). The court will evaluate the
allegations’ sufficiency based on the face of the plaintiff’s complaint. Johnson, 999 F.2d at 100
(5th Cir. 1993).
Analysis
Plaintiff fails to state a claim upon which relief may be granted. Rather, his complaint
contains bald assertions, and the court cannot discern any legally cognizable claims alleged. The
complaint simply states Plaintiff was fired, with no mention of any state or federal employment
law violated. The complaint describes only the barest of facts and never states the grounds upon
which relief is sought. Without such specificity, this court cannot find the complaint meets the
plausible pleading requirement of Twombley and Iqbal, even if the complaint is liberally
construed. Accordingly, this court cannot determine any grounds for which relief may be
granted.
Conclusion
In conclusion, this court will permit Plaintiff fourteen (14) days to craft a complaint
stating a plausible cause of action against Defendant. The complaint must identify each cause of
action asserted, and some facts, when viewed as true, from which the court can plausibility infer
the cause of the action. If Plaintiff does not amend his complaint to adequately state a claim
against Defendant, it will be recommended to the District Judge that this case be dismissed.
SO ORDERED this, the 14th day of April, 2015.
/s/ Jane M. Virden
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UNITED STATES MAGISTRATE JUDGE