Thomas v. Shinseki

Filing 7

MEMORANDUM AND ORDER that the Plaintiff shall have until November 12, 2012, to (1) amend his Complaint to sufficiently allege a prima facie case of discrimination under Title VII, and (2) file a copy of his EEOC charge and right-to-sue notice with the court. 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 November 12, 2012. Plaintiff's Motion to Appoint Counsel (Filing No. 3) is denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICKEY THOMAS,
Plaintiff,
v.
ERICK SHINSEKI, Secretary,
Department of Veterans Affairs
Agency,
Defendant.

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8:12CV309

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on August 30, 2012. (Filing No. 1.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 6.) The court
now conducts an initial review of Plaintiff’s claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint against Eric Shinseki, the Secretary of the
Department of Veterans Affairs (“VA”). Liberally construed, Plaintiff sues Defendant
for discrimination under Title VII of the Civil Rights Act of 1964. He alleges that he
was employed as a housekeeping aide at the VA. On May 9, 2011, ICU Nurse Susan
Needham (“Needham”) wiped a white towel across the floor of a patient’s room in
order to determine its cleanliness. Plaintiff alleges the nurse’s actions violated VA
procedures and protocol. Thereafter, Needham alleged “spurious charges” against him.
Plaintiff alleges Needham’s actions were “egregious” and “discriminatory.” (Filing
No. 1 at CM/ECF pp. 2-3.)
Plaintiff does not allege what relief he seeks. He states he previously sought
relief from the U.S. Equal Employment Opportunity Commission (“EEOC”), which

denied relief. (Id. at CM/ECF pp. 2-3.)
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)(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.
§ 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, 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 omitted).
III.

DISCUSSION OF CLAIMS

Liberally construed, Plaintiff’s claims are brought pursuant to Title VII of the
Civil Rights Act. Title VII states that it is unlawful for an employer “to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.”
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42 U.S.C. § 2000e-2(a)(1).
In order to set forth a prima facie case of discrimination under Title VII, a
plaintiff must allege that (1) he belongs to a protected class; (2) he was meeting the
legitimate expectations of his employer; (3) he suffered an adverse employment action;
and (4) circumstances exist that give rise to an inference of discrimination. Wheeler
v. Aventis Pharm., 360 F.3d 853, 857 (8th Cir. 2004) (abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)). Additionally, prior to
filing a suit in federal court under Title VII, a plaintiff is required to exhaust his
administrative remedies by first seeking relief through the EEOC or the Nebraska
Equal Opportunity Commission (“NEOC”). The EEOC/NEOC will then investigate
the charge and determine whether to file suit on behalf of the charging party or make
a determination of no reasonable cause. If the EEOC/NEOC determines that there is
no reasonable cause, the agency will then issue the charging party a right-to-sue notice.
42 U.S.C. § 2000e-5(b); see also Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d
570, 573 (8th Cir. 1997). The charging party has 90 days from the receipt of the
right-to-sue notice to file a civil complaint based on his charge. 42 U.S.C.A. §
2000e-5(f)(1). The civil complaint may only encompass issues that are reasonably
related to the substance of charges timely brought before the EEOC/NEOC. Williams
v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994).
Here, Plaintiff does not allege that he is a member of a protected class, or that
he was meeting the legitimate expectations of his employer, or that he suffered an
adverse employment action. As such, Plaintiff has failed to set forth a prima facie case
of discrimination under Title VII. In addition, Plaintiff has not filed a copy of his
EEOC charge or his right-to-sue notice. Thus, the court cannot determine whether
Plaintiff’s claim is timely.
On the court’s own motion, the court will permit Plaintiff 30 days in which to
(1) amend his Complaint to sufficiently allege a prima facie case of discrimination
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under Title VII, and (2) file a copy of his EEOC charge and right-to-sue notice with the
court.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until November 12, 2012, to (1) amend his Complaint
to sufficiently allege a prima facie case of discrimination under Title VII, and (2) file
a copy of his EEOC charge and right-to-sue notice with the court. If Plaintiff fails to
file an amended complaint or file a copy of his EEOC documents, Plaintiff’s claims
against Defendant will be dismissed without further notice for failure to state a claim
upon which relief may be granted.
2.
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
November 12, 2012.
3.
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.
4.
Plaintiff’s Motion to Appoint Counsel (Filing No. 3) is denied. See Davis
v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (“Indigent 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.”) (internal quotation marks omitted).

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DATED this 12th day of October, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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