Johnson v. Millard Public School

Filing 6

MEMORANDUM AND ORDER ON INITIAL REVIEW - IT IS THEREFORE ORDERED that: Johnson shall have 30 days from the date of this order to file a copy of his NEOC right-to-sue notice with the court. If Johnson did file suit within 90 days of his receipt of the right-to-sue notice, he need only file a copy of the notice in order to comply with this memorandum and order. However, if Johnson did not file suit within 90 days of his receipt of the right-to-sue notice, Johnson must also show that equitabl e or exceptional circumstances exist that warrant tolling of the 90- day period. This matter will be dismissed without further notice if the plaintiff, Michael Johnson, fails to comply with this memorandum and order. The clerk's office is dir ected to set a pro se case management deadline in this case using the following text: February 11, 2013: Check for filing of NEOC notice and showing of cause (if applicable). I reserve the right to conduct further review of Johnson's claims pursuant to 28 U.S.C. § 1915(e)(2) after Johnson addresses the matter set forth in this memorandum and order. Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL JOHNSON,
Plaintiff,
v.
MILLARD PUBLIC SCHOOL,
Defendant.

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8:12CV372

MEMORANDUM
AND ORDER ON INITIAL
REVIEW

The plaintiff, Michael Johnson (“Johnson”), filed his Complaint in this matter
on October 22, 2012, (filing No. 1.) and has been given leave to proceed in forma
pauperis. (Filing No. 5.) An initial review of the Johnson’s claims has been conducted
to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT
Liberally construed, Johnson’s complaint against Millard Public School

(“Millard”) is brought under Title VII of the Civil Rights Act of 1964 for alleged race
discrimination, as well as retaliation. Johnson also alleges he was subjected to a hostile
work environment.
Johnson alleges that from 2007 until the present time, his coworkers at Millard
have subjected him to “racial harassment.” They have written racist statements on his
locker, spit on his work shirts, vandalized his vehicle, and subjected him to racial slurs
and jokes about his race. Johnson does not identify his race in the body of his
complaint, but in the charge of discrimination he filed with the Equal Employment
Opportunity Commission (“EEOC”), attached to his complaint, he identifies himself
as “black.” (Filing No. 1 at CM/ECF p. 7.) Johnson does not set forth what relief he
seeks or whether he has exhausted his administrative remedies.

II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
I am required to review in forma pauperis complaints to determine whether

summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2).

I 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 failure 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
A plaintiff in a Title VII action has 90 days from receipt of the right to sue letter

to file a civil action. 42 U.S.C. § 2000e-5(f). A claimant’s failure to file suit within

this period bars his or her right to pursue the claim, absent equitable tolling or
exceptional circumstances. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393-96 (1982).
Here, Johnson did not file a copy of his EEOC right-to-sue notice. Thus, I
cannot determine whether Johnson’s claim is timely. However, on the court’s own
motion, Johnson shall have 30 days from the date of this order in which to file a copy
of his right-to-sue notice with the court. If Johnson did not file suit within 90 days of

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receipt of his right-to-sue notice, he must also show cause why this case should not be

dismissed for failure to do so.
IT IS THEREFORE ORDERED that:
1.

Johnson shall have 30 days from the date of this order to file a copy of his

NEOC right-to-sue notice with the court. If Johnson did file suit within 90 days of his
receipt of the right-to-sue notice, he need only file a copy of the notice in order to
comply with this memorandum and order. However, if Johnson did not file suit

within 90 days of his receipt of the right-to-sue notice, Johnson must also show that
equitable or exceptional circumstances exist that warrant tolling of the 90-day period.
2.
This matter will be dismissed without further notice if the plaintiff,
Michael Johnson, fails to comply with this memorandum and order.
3.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: February 11, 2013: Check for filing of NEOC
notice and showing of cause (if applicable).
4.
I reserve the right to conduct further review of Johnson’s claims pursuant
to 28 U.S.C. § 1915(e)(2) after Johnson addresses the matter set forth in this
memorandum and order.
Dated January 14, 2013.
BY THE COURT

_______________________________________
Warren K. Urbom
United States Senior District Judge

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