Mack v. Places for People et al

Filing 3

MEMORANDUM AND ORDER re: 2 ORDERED that the Clerk receive and file the complaint inthis action without payment of the required filing fee. FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint at this ti me, and that plaintiff shall show cause on or before August 29, 2013, why this action should not be dismissed for failure to exhaust administrative remedies. FURTHER ORDERED that if plaintiff fails to comply with this Order, the Court will dismiss this action, without prejudice. ( Show Cause Response due by 8/29/2013.), ( Show Cause Response due by 8/29/2013.). Signed by District Judge Jean C. Hamilton on 8/19/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CORRINE MACK,
Plaintiff,
v.
PLACES FOR PEOPLE, et al.,
Defendants.

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No. 4:13-CV-1554-TIA

MEMORANDUM AND ORDER TO SHOW CAUSE
This matter is before the Court upon the application of Corrine Mack for leave
to commence this action without payment of the required filing fee. See 28 U.S.C.
§ 1915(a). Upon consideration of the financial information provided with the
application, the Court finds that plaintiff is financially unable to pay any portion of
the filing fee, and therefore, she will be granted leave to proceed in forma pauperis.
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 lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to

state a claim upon which relief may be granted if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Jackson Sawmill Co. v. United
States, 580 F.2d 302, 306 (8th Cir. 1978).
In reviewing a pro se complaint under § 1915(e)(2)(B), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court must also weigh all factual allegations in favor of the plaintiff,
unless the facts alleged are clearly baseless. Denton v. Hernandez, 112 S. Ct. 1728,
1733 (1992); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The Complaint
Plaintiff seeks monetary relief pursuant to 29 U.S.C. § 794 (Rehabilitation Act
of 1973).1 The named defendants are Places for People, Barbara Taylor, Tiffany
Mercurio, Ernin Unknown, and Ingram Unknown. Plaintiff alleges that she was fired

Although plaintiff has, somewhat confusingly, attached to her complaint
part of a separate form complaint on which she has placed an asterisk by “Title
VII,” “Age Discrimination in Employment Act,” and “American with Disabilities
Act,” the Court will not liberally construe the instant action as alleging claims
under these three statutes [Doc. #1, page 6]. Plaintiff asserts no allegations that
her employment termination was because of age, race, color, religion, gender, or
national origin. Moreover, there is no indication that she has filed a charge of
discrimination with the Equal Employment Opportunity Commission and has
obtained a right-to-sue letter, a prerequisite to filing both Title VII and ADA
actions.
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and “could no longer attend the Club House,” because her hearing aids stopped
working.
Discussion
The Rehabilitation Act imposes liability for employment discrimination on the
basis of a disability by an employer of a program or activity receiving federal
financial assistance. Under the Rehabilitation Act, a plaintiff is required to exhaust
administrative remedies before commencing a civil suit in Federal Court. Filing a
charge with the appropriate Equal Employment Office representative or agency is a
prerequisite in actions brought pursuant to the Rehabilitation Act. Thus, before filing
a complaint under the Rehabilitation Act in this Court, plaintiff must first pursue
administrative remedies with the Equal Employment Opportunity Commission
(“EEOC”). See 29 U.S.C. § 794a(a)(1); Spelke v. Gonzalez, 516 F. Supp. 2d 76, 82
(D.D.C. 2007). Because plaintiff does not state, and there is no indication, that she
has filed a charge of discrimination with the EEOC, it appears that plaintiff has failed
to exhaust administrative remedies, which would necessitate the dismissal of this
action.2
The Court notes that plaintiff has filed a copy of a June 3, 2013 right-to-sue
letter issued by the St. Louis Civil Rights Enforcement Agency (“CREA”). In the
event that plaintiff has, in fact, not yet exhausted her administrative remedies
under the Rehabilitation Act, this Court would lack subject matter jurisdiction
over plaintiff’s state claims. As stated in plaintiff’s CREA letter, she has “the
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Because plaintiff is proceeding pro se and in forma pauperis, the Court will
grant her up to and including August 29, 2013, in which to show cause why this
action should not be dismissed for failure to exhaust administrative remedies.
In accordance with the foregoing,
IT IS HEREBY ORDERED that the Clerk receive and file the complaint in
this action without payment of the required filing fee. See 28 U.S.C. § 1915(a).
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint at this time, and that plaintiff shall show cause
on or before August 29, 2013, why this action should not be dismissed for failure
to exhaust administrative remedies.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order,
the Court will dismiss this action, without prejudice.
Dated this 19th day of August, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

right to bring a civil action within 90 days of the date of this letter” in state circuit
court.
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