Harris v. Decker Truck Line et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Harris shall have until July 20, 2012, to amend his Complaint to clearly state a claim upon which relief may be granted against Defendants, in accordance with this Memorandum and Order. If Harris fails to file an amended complaint, his Complaint will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Harris files an amended complaint, he must restate the allegations of the current Complaint and any new allegations. The clerk's office is directed to set a pro se case management deadline in this case using the following text: July 20, 2012: Check for amended complaint, and dismiss if none filed. Harris's Mot ion to Appoint Counsel is denied without prejudice to reassertion. (Filing No. 6 .) Harris must keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLAUDE S. HARRIS,
DECKER TRUCK LINE, Inc.,
SANDY LONEY, Director of Human )
Resources, and DOREAN, Human
Plaintiff Claude S. Harris (“Harris” or “Plaintiff”) filed his Complaint in this
matter on April 25, 2012. (Filing No. 1.) Harris has been given leave to proceed in
forma pauperis. (Filing No. 5.) Accordingly, the court now conducts an initial
review of his claims to determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Harris filed his Complaint against Decker Truck Line and two former Decker
Truck Line employees, who he identifies as Sandy Loney and Dorean. (Filing No.
1 at CM/ECF p. 1.) His allegations are sparse and difficult to decipher. As best as
the court can tell, Harris alleges that the defendants violated his rights under the
Family and Medical Leave Act (“FMLA”). (Id. at CM/ECF pp. 2-3.) Specifically,
Harris claims that he sought and received leave under the FMLA while employed at
Decker Truck Line because he was suffering from hip and back pain. (Id. at CM/ECF
p. 2.) At some point after receiving this leave, Sandy Loney and Dorean informed
him that his employment was terminated because he did not return to work in a timely
manner. (Id. at CM/ECF p. 3.) Harris does not specify the date on which his FMLA
leave began or the date on which his employment was terminated.
As relief, Harris seeks “back pay,” and for his employment record be “cleared
of being terminated.” (Id. at CM/ECF p. 5.) Harris received a right-to-sue notice
from the Equal Employment Opportunity Commission dated February 3, 2012. (Id.
at CM/ECF p. 7.) Thus, for the purposes of initial review, the court will assume that
Harris has exhausted the necessary administrative procedures.
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
Pro se plaintiffs must set forth enough factual allegations to “nudge their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (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.”). 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. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
DISCUSSION OF CLAIMS
Liberally construed, Plaintiff’s claims are brought pursuant to the FMLA. The
FMLA “provides employees with twelve work-weeks of leave during any twelvemonth period if they have a serious health condition that makes them unable to
perform the functions of their position.” Ballato v. Comcast Corp., 676 F.3d 768, 772
(8th Cir. 2012) (citing 29 U.S.C. § 2612(a)(1)(D)). The FMLA recognizes two types
of claims by employees: interference and retaliation. Id. Interference claims are
analyzed under 29 U.S.C. § 2615(a)(1), which states that it is “unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under [the FMLA].”
Interference claims arise when “the employee proves that the employer denied
a benefit to which she was entitled under the FMLA, which include[s] terminating an
employee while on FMLA leave.” Lovland v. Employers Mut. Cas. Co., 674 F.3d
806, 811 (8th Cir. 2012). The FMLA defines employer as “any person who acts,
directly or indirectly, in the interest of an employer to any of the employees of such
employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). The initial burden of proof in an FMLA
interference case is on the employee to “show only that he or she was entitled to the
benefit denied.” Ballato, 676 F.3d at 772.
Here, Harris has not alleged that he was entitled to a benefit under the FMLA
that was denied. As set forth above, Harris was entitled to “twelve work-weeks of
leave during any twelve-month period.” Harris alleges in his Complaint that he
received leave under the FMLA and, some time later, his employment was terminated
because he did not return to work in a timely manner. However, he does not allege
that he was terminated before his twelve work-weeks of leave expired. Indeed, his
allegations suggest that his employment was terminated because he did not return to
work after his leave expired. In light of this, Harris has not pled factual content that
allows this court to draw the reasonable inference that Defendants are liable for the
On the court’s own motion, Harris will be given 30 days in which to amend his
Complaint to sufficiently allege a claim under the FMLA against Defendants.
Harris’s amended complaint should set forth the date on which his FMLA leave
began and the date on which his employment was terminated. If Harris fails to file
an amended complaint in accordance with this Memorandum and Order, this matter
will be dismissed without prejudice for failure to state a claim upon which relief may
PLAINTIFF’S REQUEST FOR COUNSEL
Harris seeks the appointment of counsel. (Filing No. 6.) However, the court
cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447
(8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel. . . . The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel . . . .” Id. (quotation and citation omitted).
No such benefit is apparent here. As such, Harris’s request for the appointment of
counsel is denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
Harris shall have until July 20, 2012, to amend his Complaint to clearly
state a claim upon which relief may be granted against Defendants, in accordance
with this Memorandum and Order. If Harris fails to file an amended complaint, his
Complaint will be dismissed without further notice for failure to state a claim upon
which relief may be granted.
In the event that Harris files an amended complaint, he must restate the
allegations of the current Complaint and any new allegations.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: July 20, 2012: Check for amended complaint,
and dismiss if none filed.
Harris’s Motion to Appoint Counsel is denied without prejudice to
reassertion. (Filing No. 6.)
Harris must keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without further
DATED this 19th day of June, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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