Lee v. Richardson et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion 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 the complaint is legally frivolous or fails to state a claim upon which relief can be granted, or both. An appropriate Order of Dismissal shall accompany this Memorandum and Order.. Signed by District Judge John A. Ross on 8/23/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN R. LEE,
Plaintiff,
v.
GERALD M. RICHARDSON, et al.,
Defendants.

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No. 4:13CV803 JAR

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of for leave to commence this
action without prepayment of the filing fee pursuant to 28 U.S.C. § 1915. Upon
consideration of the financial information provided with the motion, the Court finds
that plaintiff is financially unable to pay any portion of the filing fee. As a result,
plaintiff will be granted leave to proceed in forma pauperis pursuant to 28 U.S.C. §
1915. Additionally, the Court has reviewed the complaint and will dismiss it pursuant
to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”

Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009). These include “legal conclusions”
and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by
mere conclusory statements.” Id. at 1949. Second, the Court must determine whether
the complaint states a plausible claim for relief. Id. at 1950-51. This is a “contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 1950. The plaintiff is required to plead facts that show more
than the “mere possibility of misconduct.” Id. The Court must review the factual
allegations in the complaint “to determine if they plausibly suggest an entitlement to
relief.” Id. at 1951. When faced with alternative explanations for the alleged
misconduct, the Court may exercise its judgment in determining whether plaintiff’s
conclusion is the most plausible or whether it is more likely that no misconduct
occurred. Id. at 1950, 51-52.
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The Complaint
Plaintiff brings this action pro se against his former attorney, Gerald Richardson
and his former employer, McDonald’s Corporation, alleging violations of his civil
rights. Plaintiff states that the Court’s jurisdiction rests on “18 U.S.C. § 875 and other
statutes.”
In his complaint plaintiff asserts that his rights were violated in connection with
two prior lawsuits he brought against McDonalds in this Court in 1997 and 2000. See
Lee v. McDonald’s Corp., 4:97CV1280 TIA (E.D. Mo.) and Lee v. McDonald’s
Corp., 4:00CV846 TIA (E.D. Mo.).1 Plaintiff states that, as alleged in his prior actions
before this Court, his rights were violated by McDonald’s under the Family and
Medical Leave Act (“FMLA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 1981 and the Missouri Human Rights Act (“MHRA”) when McDonald’s
Corporation terminated his employment and engaged in race discrimination against
him. He additionally claims that his appointed counsel, Gerald Richardson, “chose
to engage in obstruction of justice by making false criminal statements.”
After reviewing plaintiff’s complaint, it is apparent that he has taken issue with
the result of the judgments entered against him and in favor of McDonald’s. He
claims that defendant Richardson failed to act properly on his behalf in those actions

1

It appears these two cases were consolidated for pretrial purposes.
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and that attorneys for McDonald’s Corporation acted with “unclean hands.” Plaintiff,
therefore, requests that the judgments be “unsealed and overturned.”

He further

requests that “all benefits provided by the FMLA dating back to the unlawful
termination date with all interest, stock options and benefits plus 10 million in
punitive damages” be awarded.

Plaintiff additionally seeks the revocation of

defendant Richardson’s law license.
In effect, plaintiff is seeking to relitigate the entirety of his discrimination action
against McDonald’s Corporation with newly appointed counsel.
Discussion
The Court has reviewed plaintiff’s filings in their entirety, including the
records contained in plaintiff’s prior cases before this Court, as well as his
appellate filings in those matters. This is not the first instance that plaintiff has
argued a violation of his rights before this Court or the Eighth Circuit Court of
Appeals. Indeed, in response to the motions for summary judgment in the
consolidated cases, he argued both the “unclean hands” of McDonald’s
Corporation as well as the alleged unlawful acts of his own appointed attorney,
Gerald Richardson.
The Honorable Terry I. Adelman held a hearing on Mr. Richardson’s motion
to withdraw as counsel for plaintiff on October 18, 2002. See Lee v. McDonald’s
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Corp., 4:97CV1280 TIA (E.D. Mo.) (Doc. #156, #159 and #160). After a thorough
review of the record, Mr. Richardson’s motion to withdraw was granted.
After that time, judgment as to the alleged race discrimination and FMLA
violation was entered against plaintiff and in favor of McDonald’s Corporation.
Plaintiff complained of the same issues before the Court in the instant complaint in
his direct appeal to the Eighth Circuit, as well as in two petitions for writ of
mandamus he filed with the Court of Appeals.2 All of his petitions were denied.
Plaintiff is essentially seeking to relitigate issues already litigated in his prior
suits before this Court and the Eighth Circuit Court of Appeals. “[A]n issue may
not be relitigated in a second lawsuit where that issue had previously been litigated
in a prior lawsuit which involved the same cause of action. Furthermore, issues
which might have been raised in the first lawsuit may not be raised in a second
lawsuit arising out of the same cause of action.” Robbins v. District Court of
Worth County, Iowa, 592 F.2d 1015, 1017 (8th Cir. 1979).
As such, this Court must dismiss the present action under 28 U.S.C. § 1915
due to plaintiff’s failure to state a claim.

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Plaintiff’s direct appeal was dismissed as untimely. See Lee v. McDonald’s
Corporation, No. 03-1214 (8th Cir. 2003). Plaintiff’s applications for writ of
mandamus were denied on the merits. See In re Kevin Lee, No. 06-2910 (8th Cir.
2006); In re Kevin Lee, No. 12-3976 (8th Cir. 2012).
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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion 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 the complaint is legally
frivolous or fails to state a claim upon which relief can be granted, or both.
An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 23rd day of August, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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