Ivey v. United States Equal Employment Opportunity Commission et al
Filing
16
DECISION AND ORDER denying 14 Motion for Recusal; granting 15 Motion for Leave to Proceed in forma pauperis. Plaintiff must file a right to sue letter by 11/28/11, or the action will be dismissed. Signed by Hon. Michael A. Telesca on 10/18/11. (RE)
-PS-O-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARVIS M. IVEY,
Plaintiff,
DECISION and ORDER
09-CV-6337T
-vUNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
HIGHLAND HOSPITAL and UNITED STATES,
Defendants.
INTRODUCTION
On June 30, 2009, plaintiff Marvis Ivey filed a complaint
against the United States Equal Employment Opportunity Commission,
Highland
Hospital
and
United
States,
asserting
that
she
was
discriminated against on the basis of her race, age and religion,
and that the EEOC failed to adequately address her complaints.
That action was dismissed, along with actions 09-CV-6324T and 09CV-6445T after plaintiff was denied in forma pauperis status.
In
that same order, plaintiff was directed to address why sanctions
should not be imposed for her vexatious litigation conduct1.
When
plaintiff’s response made it clear that she did not intend to
conform her conduct to the requirements of Federal Rule of Civil
Procedure 11, the Court imposed a prohibition on future filings
1
Plaintiff had, within several months, filed two previous cases which were
dismissed for failure to respond to Court Orders (09-CV-6172T and 09-CV-6257T).
The Court took judicial notice of the fact that plaintiff had filed more than
thirty actions in the Northern District of Georgia and the Southern District of
New York since 1991.
without prior permission of the Court. Plaintiff appealed that and
other decisions to the Second Circuit Court of Appeals.
All of plaintiff’s appeals were dismissed in the Court of
Appeals except as to Highland Hospital. Pursuant to the Mandate of
the Court of Appeals dated April 9, 2010 (Docket # 10), this action
has been reopened, and plaintiff has been granted an opportunity to
replead her claims against Highland Hospital.
Plaintiff has now
filed an Amended Complaint (Docket # 13), and motions to: recuse
the undersigned Judge and U.S. District Judge William Skretny;
transfer the case to the Southern District of New York (Docket #
14);
and to proceed
in forma pauperis (Docket # 15).
DISCUSSION
Because
plaintiff
has
met
the
statutory
requirements
of
28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in
forma pauperis.
Section 1915(e)(2)(B) of 28 U.S.C. provides that
the Court shall dismiss a case in which in forma pauperis status
has been granted if, at any time, the Court determines that the
action (i) is frivolous or malicious; (ii) fails to state a claim
upon which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
Section 1915
“provide[s] an efficient means by which a court can screen for and
dismiss legally insufficient claims.”
Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112
(2d Cir. 2004)).
2
For the reasons discussed below, unless plaintiff files a
right to sue letter as directed below, the complaint will be
dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
The
Court
interprets
plaintiff’s
claim
as
one
alleging
discrimination in employment and retaliation for filing a complaint
with the Equal Employment Opportunity Commission (EEOC) under 42
U.S.C. §§ 2000e to 2000e-17, Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991.
Generally, a
right to sue letter is required when a private employee files a
Title
VII
suit
2000e-5(b),(f)(1).
in
district
court.
See
42
U.S.C.
§
Plaintiff’s amended complaint fails to allege
that she has been granted a right to sue letter by the EEOC,
thereby exhausting her administrative remedies.
matter is
hereby
continued until
Accordingly, this
November 28,
plaintiff to file this right to sue letter.
2011
to allow
Failure to file the
right to sue letter will result in dismissal of the plaintiff’s
claim.
Plaintiff’s motions to recuse the undersigned Judge and U.S.
District Judge Skretny and to transfer the case to the Southern
District of New York in the interests of justice are denied as
lacking a basis in law or equity.
CONCLUSION
Plaintiff's request to proceed in this Court as a poor person
is hereby granted.
The Clerk of the Court is directed to file the
3
plaintiff’s papers.
Plaintiff must file a right to sue letter
showing that she has exhausted her administrative remedies by
November 28, 2011 or the action will be dismissed.
ORDER
IT HEREBY IS ORDERED, that the plaintiff’s motion to proceed
in forma pauperis is granted;
FURTHER, that the action is stayed until November 28, 2011 to
allow plaintiff to file a right to sue letter from the EEOC; and
FURTHER, that the Clerk of the Court is to close this case as
dismissed after November 28, 2011 if the plaintiff has not provided
the Court with the right to sue letter by that date;
FURTHER, that the motions to recuse and to transfer the case
to the Southern District of New York are denied.
SO ORDERED.
S/ Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
October 18, 2011
Rochester, New York
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