Rippley v. Kolb Grading, LLC et al

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis is GRANTED. [ECF No. 2 ] IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause process to issue on plaintiff's complaint as to defendant Kolb Grading, LLC. IT IS FURTHER ORDERED that plaintiff's claims against defendants IUOE Local 513, ABNA Engineering, and Environmental Operations, Inc. are DISMISSED without prejudice under 28 U.S.C. § 1915(e)(2). IT IS FURTHER ORDERED that plaintiffs motion for appointment of counsel is DENIED without prejudice. [ECF No. 3 ] An Order of Partial Dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 5/29/2018. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLENN RIPPLEY,
Plaintiff,
v.
KOLB GRADING, LLC, et al.,
Defendants.

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No. 4:18-CV-118 JAR

MEMORANDUM AND ORDER
Plaintiff, an African-American man, seeks leave to proceed in forma pauperis in this civil
action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.,
for employment discrimination on the basis of race and religion. Based on plaintiff’s financial
affidavit, the motion is granted. For the following reasons, the Court will order process to issue
on defendant Kolb Grading, LLC, and will dismiss without prejudice plaintiff’s claims against
defendants IUOE Local 513, ABNA Engineering, and Environmental Operations, Inc.
Standard of Review
Under 28 U.S.C. § 1915(e), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “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.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Id. at 679.
When reviewing a complaint under 28 U.S.C. § 1915(e), the Court accepts the well-pled
facts as true. Furthermore, the Court liberally construes the allegations.
Discussion
According to his complaint and his EEOC charge of discrimination, plaintiff worked for
defendant Kolb Grading, LLC (“Kolb”) from September 18, 2017 to November 22, 2017,
removing dirt from a job site located at the corner of Cass and Jefferson in the City of St. Louis.
Plaintiff drove a tractor trailer to haul concrete slabs and also drove a water truck from which he
would spray water to keep the dust on the jobsite down.
Plaintiff alleges employment discrimination based on race and religion, and alleges he
was fired for threatening to report his complaints to the EEOC. He alleges black employees at
Kolb were treated differently from their white counterparts. For example, loads of dirt were
dropped extra hard in black employees’ trucks, but not in white employees, causing black
employees’ trucks to bounce dangerously. Plaintiff states black employees were not given safety
equipment, while white employees were. Plaintiff states he was subjected to racial slurs, verbal
abuse, threats, intimidation, racial jokes, sexually-explicit conversations, called a “Christian
hypocrite,” not paid overtime, and forced to work through lunch breaks. For relief, plaintiff
wants to be reinstated with seniority and back pay, plus lost wages of $6,000.00.
To establish a prima facie case of discrimination under Title VII, a plaintiff must show:
1) that he or she is a member of a protected class, (2) that he or she was meeting the employer’s
legitimate job expectations, (3) that he or she suffered an adverse employment action, and (4)
that similarly situated employees outside the protected class were treated differently. E.g., Tolen
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v. Ashcroft, 377 F.3d 879 (8th Cir. 2004). Having carefully reviewed and liberally construed
plaintiff’s complaint, the Court finds plaintiff has stated a plausible claim against defendant
Kolb, under the Title VII, and will order the Clerk to issue process on the complaint.
The Court will dismiss defendants IUOE Local 513, ABNA Engineering, and
Environmental Operations, Inc. Plaintiff makes no allegations against these entities. He does
not allege he was employed by these defendants, which is required to state a claim for
employment discrimination under Title VII. Nor does he allege these defendants participated in
any discriminatory conduct. As a result, defendants IUOE Local 513, ABNA Engineering, and
Environmental Operations, Inc. will be dismissed.
Additionally, plaintiff has filed a motion for appointment of counsel, which the Court
will deny at this time. There is no constitutional or statutory right to appointed counsel in civil
cases.

Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984).

In

determining whether to appoint counsel, the Court considers several factors, including (1)
whether the plaintiff has presented non-frivolous allegations supporting his or her prayer for
relief; (2) whether the plaintiff will substantially benefit from the appointment of counsel; (3)
whether there is a need to further investigate and present the facts related to the plaintiff’s
allegations; and (4) whether the factual and legal issues presented by the action are complex. See
Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986); Nelson, 728 F.2d at 1005.
Plaintiff has presented non-frivolous allegations in his complaint. However, he has
demonstrated, at this point, that he can adequately present his claims to the Court. Additionally,
neither the factual nor the legal issues in this case are complex. The Court will entertain future
motions for appointment of counsel as the case progresses.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IT IS FURTHER ORDERED that the Clerk of Court shall issue process or cause
process to issue on plaintiff’s complaint as to defendant Kolb Grading, LLC.
IT IS FURTHER ORDERED that plaintiff’s claims against defendants IUOE Local
513, ABNA Engineering, and Environmental Operations, Inc. are DISMISSED without
prejudice under 28 U.S.C. § 1915(e)(2).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel is
DENIED without prejudice. [ECF No. 3]
An Order of Partial Dismissal will accompany this Memorandum and Order.
Dated this 29th day of May, 2018.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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