Kinder v. Tremco 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 DENIED WITHOUT PREJUDICE due to plaintiff's failure to complete the financial information included on his motion. IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court's form Motion to Proceed In Forma Pauperis B Non Prisoner along with a CJA-23 Financial Affidavit. IT IS FURTHER ORDERED that plaintiff shall either pay the � 36;400 filing fee or submit a motion to proceed in forma pauperis, along with a financial affidavit, within thirty (30) days of the date of this Memorandum and Order. IT IS FURTHER ORDERED that the Clerk shall provide plaintiff a copy of a blank E mployment Discrimination Complaint form. IT IS FURTHER ORDERED that plaintiff shall amend his complaint according to the instructions set forth herein, on a court-provided form, within thirty (30) days of the date of this Order. IT IS FURTHER ORDER ED that if plaintiff fails to comply with this Order, this action will be dismissed without prejudice. (Amended/Supplemental Pleadings due by 9/10/2014. Response to Court due by 9/10/2014.) Signed by District Judge Catherine D. Perry on August 11, 2014. (Motion to Proceed In Forma Pauperis B Non Prisoner, CJA-23 Financial Affidavit, and Employment Discrimination Complaint form forwarded to Plaintiff this date.) (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM KINDER,
Plaintiff,
v.
TREMCO and JOE BRASIL,
Defendants.

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No. 4:14CV1332 CDP

MEMORANDUM AND ORDER
This matter is before the Court upon the application of William Kinder for leave to
commence this action without payment of the required filing fee. See 28 U.S.C. ' 1915(a).
Plaintiff’s motion for leave to proceed in forma pauperis [Doc. #2] is incomplete. Therefore, his
current motion to proceed in forma pauperis will be denied without prejudice, and plaintiff will be
required to file a second motion for leave to proceed in forma pauperis and accompanying CJA-23
Financial Affidavit or pay the full amount of the $400 filing fee. Furthermore, after reviewing the
complaint filed in this action, the Court will order plaintiff to amend his complaint according to the
instructions set forth below.
The Complaint
On July 29, 2014, plaintiff filed this employment discrimination action against defendants
Tremco and Joe Brasil. Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of
1964 (ATitle VII@), 42 U.S.C. ' 2000e-5 for race discrimination Specifically, plaintiff asserts that
defendants discriminated against him on the basis of his race, by failing to promote him and in the
terms and conditions of his employment. Plaintiff also alleges that he was harassed in violation of

Title VII. In his complaint, plaintiff additionally asserts that he was discriminated against on the
basis of his “hair style and dress.”
In plaintiff’s “Statement of Claim,” he has written only two sentences: (A) “Tremco
allowed Joe Brasil to forgoe [sic] my supervisor and contact higher ups for complaints he had
against me” and (B) “Joe Brasil for racially discriminating against me on the job.” Under
“Additional Information,” plaintiff states, “Joe Brasil asked another employee what color was his
girlfriend.”
Plaintiff has included with his complaint a copy of a notice of right to sue from the Equal
Employment Opportunity Commission (AEEOC@), as well as his charging document filed with the
EEOC on July 26, 2011.
Discussion
Because plaintiff has requested to proceed in this action pursuant to 28 U.S.C. ' 1915, the
Court is required to review plaintiff=s pleadings for frivolousness, maliciousness and for failure to
state a claim, prior to service of process on the complaint. Before the Court can do so, plaintiff
must amend his complaint in compliance with this Court’s Memorandum and Order.
Because plaintiff’s claims were stated in such a brief manner and do not seem to match the
allegations within his charge of discrimination,1 it is difficult for the Court to review his assertions
pursuant to 28 U.S.C. ' 1915. Thus, plaintiff will be required to file an amended complaint, on a
court-provided form, which will supersede the complaint previously filed in this action.

1

An employee may not bring allegations in an employment discrimination action if they go beyond
those that Acould reasonably be expected to grow out of the charge of discrimination@ filed with the
EEOC. Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671B72 (8th Cir.1994).
2

The amended complaint must comply with Rules 8 and 10 of the Federal Rules of Civil
Procedure. Rule 8(a) requires that a complaint contain a short and plain statement of the claim
showing that the pleader is entitled to relief and a demand for the relief sought. And Rule 10(b)
requires that a party must state its claims or defenses in separately numbered paragraphs, each
limited as far as practicable to a single set of circumstances.
Plaintiff shall have thirty (30) days from the date of this Order to file his amended
complaint. Plaintiff is again warned that the filing of the amended complaint completely replaces
the original complaint, and claims that are not re-alleged are deemed abandoned. See In re
Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005).2
After the filing of plaintiff=s amended complaint, the Court will review the amended
complaint pursuant to 28 U.S.C. ' 1915 for frivolousness, maliciousness and/or failure to state a
claim. A claim must survive ' 1915 review in order for plaintiff to proceed on those claims in this
lawsuit.
Accordingly,
IT IS HEREBY ORDERED that plaintiff=s motion for leave to proceed in forma pauperis
[Doc. #2] is DENIED WITHOUT PREJUDICE due to plaintiff’s failure to complete the
financial information included on his motion.

2

The Court notes that plaintiff has named his supervisor as a defendant in this action. Title VII
provides a remedy only against an Aemployer.@ The Eighth Circuit Court of Appeals has squarely
held that Asupervisors may not be held individually liable under Title VII.@ Bonomolo-Hagen v.
Clay Central-Everly Community School District, 121 F.3d 446, 447 (8th Cir. 1997) (citing Spencer
v. Ripley County State Bank, 123 F.3d 690, 691-92 (8th Cir. 1997) (per curiam)); see Bales v.
Wal-Mart Stores Inc., 143 F.3d 1103, 1111 (8th Cir. 1998). As a result, should plaintiff attempt to
assert claims under Title VII against defendant Joe Brasil in his amended complaint, such claims
would likely be subject to dismissal.
3

IT IS FURTHER ORDERED that the Clerk shall mail to plaintiff a copy of the Court=s
form Motion to Proceed In Forma Pauperis B Non Prisoner along with a CJA-23 Financial
Affidavit.
IT IS FURTHER ORDERED that plaintiff shall either pay the $400 filing fee or submit a
motion to proceed in forma pauperis, along with a financial affidavit, within thirty (30) days of the
date of this Memorandum and Order.
IT IS FURTHER ORDERED that the Clerk shall provide plaintiff a copy of a blank
Employment Discrimination Complaint form.
IT IS FURTHER ORDERED that plaintiff shall amend his complaint according to the
instructions set forth herein, on a court-provided form, within thirty (30) days of the date of this
Order.
IT IS FURTHER ORDERED that if plaintiff fails to comply with this Order, this action
will be dismissed without prejudice.
Dated this 11th day of August, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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