Perry v. Workforce et al

Filing 4

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because plaintiff has failed to exhaust her administrative remedies, and thus, the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).A separate order of dismissal shall accompany this memorandum and order. Signed by Honorable Stephen N. Limbaugh, Jr on 3/23/2011. (JMC)

Perry v. Workforce et al

Doc. 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION DONNETTA S. PERRY, Plaintiff, v. WORKFORCE, et al., Defendants. ) ) ) ) ) ) ) ) )

No. 1:11-CV-46-SNLJ

MEMORANDUM AND ORDER This matter is before the Court upon the application of Donnetta S. Perry for leave to commence this action without payment of the required filing fee. consideration of the See 28 U.S.C. § 1915(a). information provided with Upon the

financial

application, the Court finds that the applicant is financially unable to pay any portion of the filing fee. Therefore, plaintiff

will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). 28 U.S.C. § 1915(e) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court may dismiss a complaint filed in forma pauperis at any time if the action is frivolous, 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. An action is frivolous if "it Neitzke v.

lacks an arguable basis either in law or in fact." Williams, 490 U.S. 319, 325 (1989).

An action fails to state a

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claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the complaint the benefit of a liberal The

construction.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

Court must also weigh all factual allegations in favor of the plaintiff, unless the facts alleged are clearly baseless. v. Hernandez, 504 U.S. 25, 32 (1992). The complaint Plaintiff seeks monetary relief in this action brought pursuant to 42 U.S.C. § 2000e-5 (Title VII) and 29 U.S.C. § 794 (Rehabilitation Act of 1973) ("RA"). Workforce, Gilster Mary Lee The named defendants are Houchins Donuts, Denton

Corporation,

Celebrations, and Taco John. Discussion Title VII imposes liability on an employer who engages in certain discriminatory practices because of an individual's race, color, religion, sex, or national origin. The RA imposes liability for employment discrimination on the basis of a disability by an employer which constitutes a program or activity receiving federal financial assistance. Under both Title VII and the RA, a plaintiff is required to exhaust administrative remedies before commencing a civil suit in Federal Court. Filing a charge with the Equal

2

Employment Opportunity Commission is one such prerequisite in Title VII actions. See 42 U.S.C. § 2000e-5(F)(1). Filing a charge with

the appropriate Equal Employment Office representative or agency is a prerequisite in RA actions. that she has not filed a In her complaint, plaintiff states charge with the Equal Employment

Opportunity Commission or the Missouri Commission on Human Rights. Moreover, there is no indication she has filed an RA claim with the appropriate Equal Employment Office representative or agency.

Under these circumstances, it cannot be said that plaintiff has exhausted her administrative remedies, and thus, the complaint will be dismissed, without prejudice. In accordance with the foregoing, IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint, because plaintiff has failed to exhaust her administrative remedies, and thus, the complaint is legally frivolous and fails to state a claim upon which relief may be granted. A separate order of See 28 U.S.C. § 1915(e)(2)(B). shall accompany this

dismissal

memorandum and order. Dated this 23rd day of March, 2011.

____________________________ UNITED STATES DISTRICT JUDGE 3