Reckley v. Gallup

Filing 18

MEMORANDUM AND ORDER that Plaintiff's motion for appointment of counsel (Filing No. 15 ) is denied. Plaintiff's action is dismissed with prejudice. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PATRICIA J. RECKLEY,
Plaintiff,
v.
GALLUP,
Defendant.

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8:17CV16

MEMORANDUM
AND ORDER

The court determined on initial review of Plaintiff’s Complaint that it “fails to
state a claim upon which relief can be granted because it appears on the face of the
Complaint that all claims alleged are barred by applicable statutes of limitations”
(Filing No. 12). On the court’s own motion, Plaintiff was granted leave to file an
Amended Complaint that states a claim upon which relief can be granted.
Plaintiff filed an Amended Complaint on March 16, 2017 (Filing No. 13),1 and
corrected that filing on March 24, 2017 (Filing No. 16). The court now reviews the
Amended Complaint, as corrected, to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).2

1

Along with the Amended Complaint, Plaintiff filed a motion for appointment
of counsel (Filing No. 15). In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the
Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not have
a constitutional or statutory right to appointed counsel.” Trial courts have “broad
discretion to decide whether both the plaintiff and the court will benefit from the
appointment of counsel, taking into account the factual and legal complexity of the
case, the presence or absence of conflicting testimony, and the plaintiff’s ability to
investigate the facts and present his claim.” Id. Having considered these factors, the
request for the appointment of counsel will be denied.
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Plaintiff also filed a “response” to the court’s memorandum and order, in the
form of a brief (Filing No. 14). The court has considered Plaintiff’s arguments.

I. SUMMARY OF AMENDED COMPLAINT
There is no substantive difference between Plaintiff’s Amended Complaint and
the original Complaint. Plaintiff indicates her action is brought pursuant to the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the
Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. § 48-1101 et
seq. Plaintiff alleges that on August 27, 2016, she submitted an online application for
employment with Defendant which required her to state whether she was “disabled”
or “not disabled” and also required her to complete a “personality assessment.”
Plaintiff does not allege that she was required to state her age in the application.
Plaintiff claims she was not hired because of her responses to the “personality
assessment.” The Equal Employment Opportunity Commission (“EEOC”) issued
Plaintiff a right-to-sue letter on October 6, 2016, a copy of which is attached to the
original Complaint. Plaintiff alleges she received the letter on October 19, 2016.
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.”).

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“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 ADA and the ADEA each require plaintiffs to file suit within 90 days after
the date of the receipt of the right-to sue letter. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C.
§ 12117(a); 29 U.S.C. § 626(e); see Lyons v. Potter, 521 F.3d 981, 983 (8th Cir. 2008)
(ADA); Littell v. Aid Ass’n for Lutherans, 62 F.3d 257 (8th Cir. 1995) (ADEA).
Plaintiff alleges that she received the right-to-sue letter on October 19, 2016 (Filing
No. 1 at CM/ECF p. 5), thirteen days after its issuance by the EEOC. Accepting this
allegation as true, the 90-day filing deadline expired on January 17, 2017. While
Plaintiff mailed her original Complaint to the court on January 17, 2017, it was not
received and filed until two days later, which was untimely under the ADA and the
ADEA. See Hallgren v. U.S. Dep’t of Energy, 331 F.3d 588 (8th Cir. 2003) (affirming
dismissal of ADEA action where complaint was mailed one day before expiration of
90-day time period but was not received and filed by court until after 90 days). There
are no facts alleged which might provide grounds for tolling the limitations period.
Because the right-to-sue letter states that the EEOC adopted the findings of the
state agency that investigated Plaintiff’s charge, the action is also untimely under the
NFEPA, which provides that “[t]he deadline for filing an action directly in the district
court is ninety days after the complainant receives notice of the last action the
[Nebraska Equal Opportunity Commission] will take on the complaint or charge.”
Neb. Rev. Stat. § 48-1120.01. The NFEPA’s limitations period is not tolled pending
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issuance of the EEOC’s right-to-sue letter. See Hohn v. BNSF Ry. Co., 707 F.3d 995,
1000-01 (8th Cir. 2013).
Although the statute of limitations is an affirmative defense, a district court may
properly dismiss an in forma pauperis complaint as frivolous when it is apparent that
the statute of limitations has run. Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992).
Plaintiff will not be allowed to file a Second Amended complaint because the court
has concluded that to do so would be futile.
IV. CONCLUSION
Plaintiff’s Amended Complaint fails to state a claim upon which relief can be
granted because it appears on the face of the Amended Complaint that all claims
alleged are barred by applicable statutes of limitations.
IT IS ORDERED:
1.

Plaintiff’s motion for appointment of counsel (Filing No. 15) is denied.

2.

Plaintiff’s action is dismissed with prejudice.

3.

Judgment will be entered by separate document.

DATED this 1st day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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