Montalvo v. 24 Hour Fitness

Filing 3

MEMORANDUM AND ORDER: Plaintiff Judith Montalvo filed this pro se complaint on a form provided for filing actions pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e to 2002-17. She fails to name a defendant. Pla intiff also submits a 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which this Court grants. In light of Plaintiff's pro se status, she is granted 30 days leave to amend her complaint to identify a def endant and to allege facts that would support a claim for discrimination in employment. The amended complaint must be submitted to the Court within 30 days from the date of this Order, be captioned as an "Amended Complaint," and bear the sa me docket number as this Order. All further proceedings shall be stayed for 30 days. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. SO ORDERED by Chief Judge Carol Bagley Amon, on 6/22/2011. C/mailed. (Latka-Mucha, Wieslawa)

"

FILED

IN CLERK'S OFFICE

U.S. OISTRICT COURT e.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

* JUN 2 2 2011 *

------------------------------------------------------------)(

BROOKLYN OFFICE

In re: JUDITH MONTALVO
MEMORANDUM AND ORDER
ll-CV -2881 (CBA)

------------------------------------------------------------)(
AMON, Chief United States District Judge:
Plaintiff Judith Montalvo filed this pro se complaint on a form provided for filing actions
pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e to 2002-17 ("Title
VII"). She fails to name a defendant. Although she has checked the box alleging discrimination
in employment, she has provided no facts supporting such a claim. Plaintiff also submits a
request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which this Court grants. For
the reasons discussed below, Plaintiff is granted thirty (30) days leave to amend her complaint.

BACKGROUND
Plaintiff s complaint consists of a form Title VII complaint, in which she alleges
violations of Title VII and checks off discrimination on the basis of national origin. (Complaint
at 3.) She asserts discriminatory conduct consisting of termination of employment, unequal
terms and conditions of employment, and "individual discrimination." (ld.) The complaint
contains no factual allegations in support of these claims, nor does Plaintiff attach documents
containing such allegations. Morever, though she checked the box indicating that the Equal
Employment Opportunity Commission ("EEOC") "has not issued a Right to Sue letter," Plaintiff
attached such a letter, which indicated that "the EEOC has adopted the findings of the state or
local fair employment practices agency that investigated this charge." (Attachment, ECF page 8,
EEOC Letter dated Mar. 1,2011.) The letter indicates that copies were provided to 24 Hour

Fitness and Jeremy Chylinski of Seyfarth Shaw LLP. (ld.) No state or local agency findings are
attached to the complaint. Lastly, Plaintiff includes a letter, dated May 24,2011 and addressed
"to the U.S. Equal Employment Opportunity Commission," in which she states her intention to
file a federal claim regarding the "damages I suffered at the hands of 24 Hour Fitness."
(Attachment, ECF page 9.)
DISCUSSION
Pursuant to the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must
dismiss a case if the court determines that the complaint "is frivolous or malicious; fails to state a
claim on which relief may be granted; or seeks monetary relief against a defendant who is
immune from such relief." 28 U.S.C. § 19l5(e)(2)(B). A plaintiff seeking to bring a lawsuit in
federal court must establish that the Court has subject matter jurisdiction over the action. Rene
v. Citibank NA. 32 F. Supp. 2d 539,541-42 (E.D.N.Y. 1999). In reviewing the complaint, this
Court is mindful that "[ a] document filed pro se is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal quotation
marks and citations omitted). If a liberal reading of the complaint "gives any indication that a
valid claim might be stated," this Court must grant leave to amend the complaint. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Plaintiff s complaint cannot go forward in its current form because it fails to identify a
defendant. Plaintiff does attach documents with references to "24 Hour Fitness" and lists her
employer's address. If she intends to assert a claim for employment discrimination, however, she
must formally identify the employer. Moreover, since Plaintiff has not included any of the
2

underlying facts, she has not alleged facts that would support a claim of discrimination on the
basis of national origin.
In light of Plaintiffs pro se status, she is granted thirty (30) days leave to amend her
complaint to identify a defendant and to allege facts that would support a claim for
discrimination in employment. The amended complaint must be submitted to the Court within
thirty (30) days from the date of this Order, be captioned as an "Amended Complaint," and bear
the same docket number as this Order.! All further proceedings shall be stayed for thirty (30)
days. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

/S/
CAROL BAG
Dated: Brooklyn, New York
June~011

!

An amended complaint fonn is attached to this Order for plaintiff's convenience.

3