Hodges v. Green et al

Filing 8

MEMORANDUM AND ORDER that plaintiff's claims against the individual defendants, Glenda Green and Shelly Burghardt, are dismissed without prejudice. To obtain service of process on Defendant Omaha Public Schools, Plaintiff must complete and ret urn the summons form that the Clerk of the court will provide. The Clerk of the court shall send one summons form and one USM-285 form to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff shall complete the forms and return to the Clerk who shall forward to USM for service. The Clerk shall set a Case Management Deadline for 12/12/2013: check for completion of service of summons. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with forms)(ADB, )

Hodges v. Omaha Public Schools

Doc. 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALERIE HODGES,
Plaintiff,
v.
GLENDA GREEN, SHELLY
BURGHARDT, and OMAHA
PUBLIC SCHOOLS (OPS),
Defendants.

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8:12CV424

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On April 1, 2013, the court
entered a Memorandum and Order allowing Plaintiff to amend her Complaint to
allege a case of discrimination against Defendants upon which relief may be granted,
and to allege that she had exhausted her administrative remedies with respect to her
allegations of discrimination. (Filing No. 6.) Plaintiff filed an Amended Complaint
on April 11, 2013. (Filing No. 7.) The court considers Plaintiff’s Amended
Complaint as supplemental to her original Complaint. See NECivR 15.1(b).
Liberally construed, Plaintiff alleges that she was employed by Omaha Public
Schools, she is an African American female, and she was terminated from her
employment under circumstances giving rise to an inference of discrimination. (See
generally Filing Nos. 1 and 7.) Upon careful review of the Complaint and the
Amended Complaint, the court determines that Plaintiff has stated a Title VII claim
against Defendant Omaha Public Schools upon which relief may be granted, and that
service on Omaha Public Schools is now warranted. Although the court finds that
Plaintiff’s claims may proceed against Defendant Omaha Public Schools, the court
cautions Plaintiff that this is only a preliminary determination based on the allegations
of the Complaint and Amended Complaint, and is not a determination of the merits
of Plaintiff’s claims or potential defenses thereto.

Dockets.Justia.com

IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims against the individual defendants, Glenda Green and
Shelly Burghardt, are dismissed without prejudice. See Roark v. City of Hazen, 189
F.3d 758, 761 (8th Cir. 1999) (stating individual supervisors may not be held liable
under Title VII); McCann v. New World Pasta Co., 2010 WL 3834650, *1 (E.D. Mo.
Sept. 27, 2010) (holding Title VII and ADA claims were legally frivolous as to
individual defendants because chief executive officers, supervisors, and co-employees
cannot be held individually liable under Title VII or ADA).
2.
To obtain service of process on Defendant Omaha Public Schools,
Plaintiff must complete and return the summons form that the Clerk of the court will
provide. The Clerk of the court shall send one summons form and one USM-285
form to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff
shall, as soon as possible, complete the forms and send the completed forms back to
the Clerk of the court. In the absence of the forms, service of process cannot occur.
3.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint and Amended
Complaint to the U.S. Marshal for service of process. The Marshal shall serve the
summons and the Complaint and Amended Complaint without payment of costs or
fees. Service may be by certified mail pursuant to Federal Rule of Civil Procedure
4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will copy
the Complaint and Amended Complaint, and Plaintiff does not need to do so.
4.
Federal Rule of Civil Procedure 4 requires service of the complaint on
a defendant within 120 days of filing the complaint. However, because in this order
Plaintiff is informed for the first time of these requirements, Plaintiff is granted, on
the court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process.
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5.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.
6.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiff shall keep the court informed of her current
address at all times while this case is pending. Failure to do so may result in
dismissal.
7.
The Clerk of Court is directed to set a case management deadline in this
case with the following text: “December 12, 2013: Check for completion of service
of summons.”
DATED this 14th day of August, 2013.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District 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 Web 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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