Evans v. Nebr Beef

Filing 10

MEMORANDUM AND ORDER - Plaintiff shall have until October 8, 2012, to amend his Complaint and clearly state a claim upon which relief may be granted against Defendants, in accordance with this Memorandum and Order. If Plaintiff fails to file a suf ficient amended complaint, Plaintiff's Complaint will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the all egations of the current Complaint and Amended Complaint (filing nos. 1 and 8 ), and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the court is directed to set a p ro se case management deadline in this case using the following text: Check for amended complaint on October 8, 2012, and dismiss if none filed. Plaintiff 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. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES EVANS, III,
Plaintiff,
v.
TONY JOY, et al.,
Defendants.

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8:12CV161

MEMORANDUM
AND ORDER

Plaintiff filed an Amended Complaint in this matter on July 23, 2012. (Filing
No. 8.) Plaintiff was previously given leave to proceed in forma pauperis. (Filing
No. 6.) The court now conducts an initial review of the Amended Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF AMENDED COMPLAINT

Plaintiff filed his Amended Complaint in this matter on July 23, 2012, against
numerous Defendants including Nebraska Beef, Ltd. (Filing No. 8 at CM/ECF p. 1.)
Plaintiff’s Amended Complaint is difficult to decipher. As best as the court can tell,
and liberally construed, Plaintiff alleges that Defendants violated the Fair Labor
Standards Act (“FLSA”) because they failed to compensate him for overtime.
Plaintiff alleges that he worked for Defendants “for over 3 plus years,” and “received
no proper overtime compensation/economic remuneration” during his employment.
(Id. at CM/ECF pp. 7-8.) Plaintiff seeks damages in the amount of “10 million
dollars.” (Id. at CM/ECF p. 7.)
II.

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).
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, 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. 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
omitted).
III.

DISCUSSION OF CLAIMS

Liberally construed, Plaintiff asserts a claim for unpaid overtime compensation
under the FLSA. See 29 U.S.C. § 215. Under the FLSA, “‘it shall be unlawful for
any person’ to violate the minimum wage, overtime, and recordkeeping provisions
of that statute.” Reich v. Stewart, 121 F.3d 400, 404 (8th Cir. 1997) (quoting 29
U.S.C. § 215(a)(2), (5)). In accordance with the FLSA, the Eighth Circuit has longheld that “[a]n employee must be compensated for duties ‘before and after scheduled
hours . . . if the employer knows or has reason to believe the employee is continuing
to work and the duties are an integral and indispensable part of the employee’s
principal work activity.’” Hertz v. Woodbury Cnty., Iowa, 566 F.3d 775, 781 (8th
Cir. 2009) (quoting Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975)).
However, to succeed on an unpaid overtime claim, a plaintiff must allege and show
“that [he] worked above [his] scheduled hours without compensation and that [his
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employer] knew or should have known that [he was] working overtime.” Id. (citing
Reich, 121 F.3d at 407).
Here, Plaintiff’s claim for unpaid overtime is as follows:
As regards overtime we all had to be there at 6:15 am [and] most lots of
time plaintiff was last to go [and] received no proper overtime
compensation/economic remuneration as required by federal wage laws.
(Filing No. 8 at CM/ECF pp. 7-8.) Plaintiff also sets forth that he cannot “tell how
many hours” he worked, or how much money is owed to him for unpaid overtime.
(Id.) The remainder of Plaintiff’s Amended Complaint sets forth unrelated and
nonsensical allegations about his job duties, having to use the “garage door” for
breaks instead of the door that “everybody else” uses, and other non-specific
allegations. Plaintiff does not allege any facts supporting his claim of unpaid
overtime such as his scheduled work hours, the number of uncompensated overtime
hours or when Plaintiff worked those hours, or that his employer knew that he worked
those hours. As such, the Amended Complaint fails to state a claim upon which relief
may be granted.1
On its own motion, the court will permit Plaintiff 30 days in which to amend
his Complaint to sufficiently allege an FLSA claim against Defendants. Any
amended complaint shall restate the allegations of Plaintiff’s prior Complaints (Filing
Nos. 1 and 8), and any new allegations. Failure to consolidate all claims into one
document will result in the abandonment of claims. If Plaintiff fails to file a
sufficient 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 be granted.
1

The court also set a hearing in this matter, and in the related Case No. 8:12CV162, in order
to allow Plaintiff to support his allegations. (Filing No. 7.) However, Plaintiff failed to appear for
the hearing. The court ultimately dismissed the related case because Plaintiff’s Amended Complaint
in that matter failed to state a claim upon which relief may be granted under the FLSA.

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IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until October 8, 2012, to amend his Complaint and
clearly state a claim upon which relief may be granted against Defendants, in
accordance with this Memorandum and Order. If Plaintiff fails to file a sufficient
amended complaint, Plaintiff’s Complaint will be dismissed without further notice for
failure to state a claim upon which relief may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint and Amended Complaint (filing nos.
1 and 8), and any new allegations. Failure to consolidate all claims into one
document may result in the abandonment of claims.
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
October 8, 2012, and dismiss if none filed.
4.
Plaintiff 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 6th day of September, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their W eb sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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