Hodges v. Burghardt et al
MEMORANDUM AND ORDER - This matter is dismissed without prejudice because the Supplements, liberally construed as an Amended Complaint, fail to state a claim upon which relief may be granted. A separate judgment will be entered in accordance with this Memorandum and Order and the courts September 29, 2011, Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copied mailed to pro se party) (AOA) Modified on 1/12/2012 to indicate copied was mailed to non-register user (AOA).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHELLY BURGHARDT, GLENDA
GREEN, and O.P.S.,
CASE NO. 8:11CV262
This matter is before the court on its own motion. On September 29, 2011, the court
conducted an initial review of Plaintiff’s Complaint and found that Plaintiff failed to state a
claim upon which relief may be granted as to all claims asserted. (Filing No. 7.) In
particular, the court determined that:
Plaintiff does not allege that she is at least 40 years old. (Filing No. 1.)
Further, although she alleges that she met the qualifications of the position
and that Defendants hired a “much younger female” for the position, she
does not allege that age was the primary motivating factor in her termination.
(Id.) As such, Plaintiff’s allegations are insufficient to nudge her ADEA
claims across the line from conceivable to plausible.
(Id. at CM/ECF p. 3.) In light of these pleading deficiencies, the court granted Plaintiff an
opportunity to amend.
In response, Plaintiff filed documents on October 4, 2011, and October 12, 2011,
which the Clerk of the court docketed as Supplements. (Filing Nos. 8 and 9.) While these
documents show that Plaintiff is over 40 years old, the documents do not include any
additional allegations. Further, even liberally construed, the documents do not show that
age was a primary motivating factor in Plaintiff’s termination. Thus, after careful review of
the Supplements, the court finds that Plaintiff has failed to state a claim upon which relief
may be granted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009),(“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.”); Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985),(holding that, regardless of whether a plaintiff
is represented or is appearing pro se, the plaintiff’s complaint must allege specific facts
sufficient to state a claim). For these reasons, and the reasons set forth in the court’s
September 29, 2011, Memorandum and Order, this matter is dismissed without prejudice.
IT IS THEREFORE ORDERED that:
This matter is dismissed without prejudice because the Supplements,
liberally construed as an Amended Complaint, fail to state a claim upon
which relief may be granted; and
A separate judgment will be entered in accordance with this Memorandum
and Order and the court’s September 29, 2011, Memorandum and Order.
DATED this 12th day of January, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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