Donald v. Wis International et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff has until November 18, 2016, to file an amended complaint alleging sufficient facts to establish that the court has diversity of citizenship jurisdiction. In particular, Plaintiff must allege his State citizenship a nd the State citizenship of each Defendant. Plaintiff has until November 18, 2016, to file sufficient evidence with the court showing that the amount in controversy is greater than $75,000.00. Plaintiff's failure to comply with either of the foregoing requirements may result in the dismissal of this action without further notice. The court reserves the right to conduct further review of Plaintiffs claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set forth in this order. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: November 18, 2016: deadline for Plaintiff to file amended complaint and to show jurisdictional amount by preponderance of evidence. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRANDON DONALD,
Plaintiff,
v.
WIS INTERNATIONAL;
RAY CURTIS; DAVID CROUCH; and
GEOORGE DEVEREAX,
Defendants.

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8:16CV448

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint on September 30, 2016 (Filing No. 1). Plaintiff was 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
Liberally construed, Plaintiff alleges he was sexually harassed by his supervior, Ray Curtis,
and received no satisfaction when he reported the harassment to a more senior supervisor, David
Crouch. Plaintiff also alleges Crouch took no action after Plaintiff reported that another supervisor,
Geoorge Devereax, was texting while driving Plaintiff and other employees of WIS International
to a work site. Plaintiff seeks $50,000,000.00 in damages.
II. APPLICABLE 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
of it 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.” 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.”).

“The essential function of a complaint under the Federal Rules of Civil Procedure is to give
the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general
indication of the type of litigation involved.’” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d
843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)).
However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser
pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and
citations omitted).
III. DISCUSSION OF CLAIMS
The court is not convinced it has subject-matter jurisdiction over this action. Plaintiff alleges
subject-matter jurisdiction exists pursuant to 28 U.S.C. § 1332, commonly referred to as “diversity
of citizenship” jurisdiction. Under section 1332, the citizenship of each plaintiff must be different
from the citizenship of each defendant. Ryan v. Schneider Nat’l. Carriers, Inc., 263 F.3d 816, 819
(8th Cir. 2001). In addition, the amount in controversy must be greater than $75,000.00. 28 U.S.C.
§ 1332(a). Where a complaint “alleges a sufficient amount in controversy to establish diversity
jurisdiction, but . . . the court questions whether the amount alleged is legitimate, the party invoking
federal jurisdiction must prove the requisite amount by a preponderance of the evidence.” Missouri
v. Western Surety Company, 51 F.3d 170, 173 (8th Cir. 1995).
Here, the allegations of the complaint do not show that Plaintiff’s citizenship is different
from that of each of the named Defendants. Also, while Plaintiff seeks to recover $50 million in
damages, the court questions whether the amount in controversy is over $75,000.00. Plaintiff does
not claim that he suffered any adverse employment action, but merely alleges in general terms that
he feels harassed, unsafe, discriminated against, and humiliated. The court therefore will require
Plaintiff to file an amended complaint alleging the State citizenship of himself and each Defendant,
and also to make a showing by a preponderance of the evidence that the amount in controversy is
greater than $75,000.00.
Even if the court were to construe Plaintiff’s complaint as asserting a claim of sexual
harassment under Title VII the Civil Rights Act of 1964 , the complaint would be deficient. Prior
to filing a suit in federal court under Title VII, a plaintiff is required to exhaust his or her
administrative remedies by first seeking relief through the EEOC or the Nebraska Equal Opportunity
Commission (“NEOC”). 42 U.S.C. § 2000e-5. 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).1 Plaintiff did not attach a right-tosue letter to his complaint and there is no evidence that he sought relief from the EEOC or NEOC.
IT IS THEREFORE ORDERED that:
1.
Plaintiff has until November 18, 2016, to file an amended complaint alleging
sufficient facts to establish that the court has diversity of citizenship jurisdiction. In particular,
Plaintiff must allege his State citizenship and the State citizenship of each Defendant.
2.
Plaintiff has until November 18, 2016, to file sufficient evidence with the court
showing that the amount in controversy is greater than $75,000.00.
3.
Plaintiff’s failure to comply with either of the foregoing requirements may result in
the dismissal of this action without further notice.
4.
The court reserves the right to conduct further review of Plaintiff’s claims pursuant
to 28 U.S.C. § 1915(e)(2) after Plaintiff addresses the matters set forth in this order.
5.
The clerk of the court is directed to set a pro se case management deadline in this
matter with the following text: November 18, 2016: deadline for Plaintiff to file amended complaint
and to show jurisdictional amount by preponderance of evidence.
DATED this 18th day of October, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

1

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. § 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). Also,
each discrete incident of discriminatory or retaliatory action by an employer constitutes its own
unlawful employment practice for which administrative remedies must be exhausted before bringing
a Title VII claim. Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012).