Collum v. PayPal

Filing 6

MEMORANDUM AND ORDER - Collum shall have until July 23, 2012, to amend his complaint and clearly state a claim upon which relief may be granted against PayPal in accordance with this Memorandum and Order. If Collum fails to file an amended com plaint, Collum's claims against PayPal will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Collum files an amended complaint, Collum shall restate the allegations of th e current complaint (Filing No. 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Collum shall 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. (Pro Se Case Management Deadline set for 7/23/2012: check for amended complaint) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN T. COLLUM,
Plaintiff,
v.
PAYPAL,
Defendant.

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8:12CV153

MEMORANDUM AND ORDER

Plaintiff Brian T. Collum (“Collum”) filed his
complaint in this matter on May 3, 2012 (Filing No. 1).

Collum

has previously been given leave to proceed in forma pauperis
(Filing No. 5).

The Court now conducts an initial review of the

complaint to determine whether summary dismissal is appropriate
under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT
Collum’s complaint is his fourth attempt in this Court

to sue his previous employer, PayPal.

(See Collum v. PayPal,

Inc., Case No. 8:10CV452, Filing No. 22 (dismissing Collum’s
allegations of harassment, discrimination, and other issues in
the workplace because Collum failed to state a claim under the
Family and Medical Leave Act (“FMLA”) or any other federal
statute); Collum v. PayPal, Inc., Case No. 8:11CV12, Filing No.
16 (dismissing Collum’s allegations that PayPal discriminated
against him in violation of the Americans with Disabilities Act
(“ADA”) because he failed to allege that he exhausted his

administrative remedies prior to filing suit); Collum v. PayPal,
Case No. 8:12CV17, Filing No. 18 (dismissing Collum’s defamation
and false light claims against PayPal for lack of subject matter
jurisdiction).)

In this complaint, Collum states that he has

“been treated differently and not in the same ways as others at
PayPal.”

(Filing No. 1 at CM/ECF p. 13.)

He also reasserts his

defamation and false light claims along with his allegations of
harassment and discrimination.

(Id. at CM/ECF pp. 1-13.)

Collum

states that he will “subpoena the [Nebraska Equal Opportunity
Commission (“NEOC”)] for documents” in three NEOC claims, (i.e.
“2-2-08, NEB 1-07/08-2-38938-R; 3-19-09, NEB 1-08/09-3-40262-R;
and . . . NEB1-09/10-5-41457-RS”), to prove his claims of
“defamation and false light.”

(Id. at CM/ECF p. 13.)

Collum

seeks “40 million dollars . . . [because he was] harassed and
menaced in ways that have sent [him] into a depressive state that
never should never have happened.”
II.

(Id.)

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).

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. § 1915(e)(2)(B).
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A pro se plaintiff 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, 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.”).

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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

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
omitted).
III. DISCUSSION OF CLAIMS
As the Court has previously informed Collum, general
allegations of harassment, discrimination, and other issues in
the workplace do not state a claim upon which relief may be
granted.

(See, e.g., Collum v. PayPal, Inc., Case No. 8:10CV452,

Filing No. 15 at CM/ECF p. 4, and Filing No. 22.)

Indeed, the

Court has informed Collum of the prima facie requirements to
state a claim under the FMLA and of the exhaustion requirements
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of Title VII.

(See Collum v. PayPal, Inc., Case No. 8:10CV452,

Filing No. 22; Collum v. PayPal, Inc., Case No. 8:11CV12, Filing
No. 16 (dismissing case “without prejudice to reassertion after
Plaintiff exhausts his administrative remedies”).)

Although it

appears that Collum has presented “claims” to the NEOC, it is
unclear what those claims were.

Moreover, Collum does not allege

that he is a member of a suspect class, disabled, or was
retaliated against for using FMLA leave.
Liberally construed, Collum may be alleging that he was
treated differently than other PayPal employees in violation of
his equal protection rights.

However, Collum did not allege that

PayPal is a state actor or that there was no rational basis for
his different treatment.

See Alexander v. Pathfinder, Inc., 189

F.3d 735, 740 (8th Cir. 1999) (concluding private corporation
could not be sued under § 1983 for equal protection claims
because it was not a state actor); Mathers v. Wright, 636 F.3d
396, 399 (8th Cir. 2011) (concluding that to state a class-of-one
equal protection claim, a plaintiff must allege that a defendant
intentionally treated her differently from others who are
similarly situated and that no rational basis existed for the
difference in treatment).

In short, Collum’s general allegations

of harassment, discrimination, and other issues in the workplace
do not state a claim upon which relief may be granted.

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However, on its own motion, the Court will provide
Collum with the opportunity to amend his complaint to
sufficiently allege a claim against PayPal.

Any amended

complaint shall restate the allegations of Collum’s current
complaint (Filing No. 1), and any new allegations.

Failure to

consolidate all claims into one document will result in the
abandonment of claims.

If Collum fails to file an amended

complaint in accordance with this Memorandum and Order, Collum’s
claims against PayPal will be dismissed without further notice.
Pending amendment of the complaint as set forth in this
Memorandum and Order, the Court makes no finding regarding its
jurisdiction over any potential state law claims.
IT IS ORDERED:
1.

Collum shall have until July 23, 2012, to amend

his complaint and clearly state a claim upon which relief may be
granted against PayPal in accordance with this Memorandum and
Order.

If Collum fails to file an amended complaint, Collum’s

claims against PayPal will be dismissed without further notice
for failure to state a claim upon which relief may be granted.
2.

In the event that Collum files an amended

complaint, Collum shall restate the allegations of the current
complaint (Filing No. 1) and any new allegations.

Failure to

consolidate all claims into one document may result in the
abandonment of claims.

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3.

The clerk of the court is directed to set a pro se

case management deadline in this case using the following text:
Check for amended complaint on July 23, 2012.
4.

Collum shall 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.
DATED this 3rd day of July, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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