Kanu v. Siemens PLM Software et al

Filing 8

SUPPLEMENTAL REPORT AND RECOMMENDATIONS re #6 Amended Complaint. IT IS RECOMMENDED THAT: (1) Plaintiff's in forma pauperis status should be REVOKED based upon a lack of indigency, and he should be required to immediately pay the full $400.00 filing fee for this case. He should also be denied leave to appeal in forma pauperis; (2) Plaintiff's complaint should be dismissed sua sponte with prejudice for failure to state any claim under Title VII or other federal law, either under 28 U.S.C. 1915(e) if Plaintiff is permitted to continue to proceed in forma pauperis, or alternatively, under Apple v. Glenn. Objections to R&R due by 2/22/2018. Signed by Magistrate Judge Stephanie K. Bowman on 2/8/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BRYAN KANU,
Case No. 1:18-cv-37
Plaintiff,

Black, J.
Bowman, M.J.

v.

SIEMENS PLM SOFTWARE, et al.,

Defendants.

SUPPLEMENTAL REPORT AND RECOMMENDATION
On January 19, 2018, Plaintiff filed motions seeking leave to file two separate
complaints in this Court in forma pauperis, or without payment of the requisite filing fee
that is ordinarily required to file a case in this court. 1 (Doc. 1). On January 29, 2018,
the undersigned conditionally granted Plaintiff leave to initiate both cases in forma
pauperis, but simultaneously issued an order requiring Plaintiff to “show cause” why his
in forma pauperis status should not be revoked and denied.

Additionally, the

undersigned filed a Report and Recommendation in each of the two cases
recommending that the initial complaints be dismissed, without prejudice to refile a first
amended complaint to correct the glaring deficiencies of the related complaints.
On February 5, 2018, Plaintiff filed responses to the “show cause” orders issued
in each of his two cases, as well as amended complaints in both cases that purport to
cure the fatal deficiencies of the initial complaints. Because Plaintiff does not qualify for
in forma pauperis status, I now recommend that the prior conditional grant of such
1

The second case was opened as Kanu v. Seimens PLM Software, Case No. 1:18-cv-38.

status be revoked, and that Plaintiff be required to pay the requisite $400 filing fee in
order to proceed in this Court.
Irrespective of his filing status, the undersigned continues to find Plaintiff’s
complaint to be fatally deficient because it fails to state any claim against any
Defendant, and therefore remains subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)
(to the extent that Plaintiff is permitted to proceed in forma pauperis) or under Apple v.
Glenn. As Plaintiff has already been granted one opportunity to amend his complaint to
cure the obvious and fatal deficiencies, he should not be permitted to further amend at
this time.
I.

Revocation of In Forma Pauperis Status

Having reviewed Plaintiff’s response to the “show cause” order, the undersigned
now recommends that the prior conditional grant of in forma pauperis status be revoked,
and that Plaintiff be directed to pay the full $400.00 filing fee. As noted in this Court’s
show cause order, Plaintiff’s initial application to proceed in forma pauperis indicates
that he currently has approximately $8,100.00 in savings, checking, or a related account
– a sum that far exceeds the filing fee for this action.

In his response to the Order

requiring him to show cause why he should not be required to pay the filing fee, Plaintiff
states that “he pays the monthly interest on each of his 6 private Sallie Mae [student]
loans in order to reduce the amount he has to pay upon graduation.” (Doc. 5 at 1). 2
Plaintiff further argues that he has a monthly cable bill and weekly grocery expenses, as
well as a fluctuating electric bill. He states that he is “doing the best he can to get
2

Student loans are typically placed in a deferred payment status during the period of time an individual
remains a full-time student. Aside from Plaintiff’s preference to reduce his total student loan liability upon
graduation, there is no indication that he is in default, or would be placed in default if he failed to make a
monthly interest payment. Even if the $144 monthly interest payments are mandatory, however, they do
not suffice to qualify Plaintiff for waiver of the filing fee in this case.

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through college while being financially responsible as an independent student,” and
therefore seeks a waiver of the filing fees in his two cases. He compares the combined
total of $800 in filing fees for both cases to the “equivalent of one month’s rent, at least
two weeks of groceries, and one month of high speed internet.”
Plaintiff’s desire to maintain his financial independence and/or to preserve his
more than eight thousand dollars in savings is not a sufficient basis to grant him pauper
status. Proceeding in forma pauperis is a privilege, not an unqualified right. See Shobe
v. People of the State of California, 362 F.2d 545, 546 (9th Cir.1966). Therefore, a
district court does not abuse its discretion when it denies an application to proceed in
forma pauperis where the applicant appears to have sufficient assets with which to pay
the requisite filing fee. See, e.g., Ibrahim v. Food Lion, Inc., 149 F.3d 1183, 1998 WL
381326 (6th Cir. June 26, 1998) (Table, affirming discretionary denial of in forma
pauperis request where applicant earned $165 per week and had $400 in bank account,
in addition to automobile valued at less than $4,000); accord Brogue v. Fort Knox Fed.
Credit Union, No. 96–1896, 114 F.3d 1186, 1997 WL 242032, at *1 (6th Cir. May 8,
1997) (Table).
II. General Screening Authority
A. Screening Under 28 U.S.C. § 1915
To the extent that a reviewing court would disagree with the revocation of
Plaintiff’s in forma pauperis motion, the amended complaint remains before the Court
for a sua sponte review to determine whether the complaint, or any portion of it, should
be dismissed because it is frivolous, malicious, fails to state a claim upon which relief

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may be granted or seeks monetary relief from a defendant who is immune from such
relief. See 28 U.S.C. § 1915(e)(2)(B).
Congress has authorized federal courts to dismiss an in forma pauperis
complaint if satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504
U.S. 25, 31 (1992); see also 28 U.S.C. § 1915(e)(2)(B)(i).

A complaint may be

dismissed as frivolous when the plaintiff cannot make any claim with a rational or
arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see
also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990).

An action has no

arguable legal basis when the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An
action has no arguable factual basis when the allegations are delusional or rise to the
level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at
1199.

The Court need not accept as true factual allegations that are Afantastic or

delusional@ in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471
(6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress has also authorized the sua sponte dismissal of complaints which fail
to state a claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii).
Although a plaintiff’s pro se complaint must be “liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers,” the complaint must “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citation and quotation omitted)). The complaint “must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); see also Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)(“dismissal standard articulated in Iqbal
and Twombly governs dismissals for failure to state a claim” under §§ 1915(e)(2)(B)(ii)
and 1915A(b)(1)).
Plaintiff’s amended complaint is significantly shorter than his original 283 page
version. The brevity of the amended complaint is a welcome improvement and comes
close to compliance with Rule 8, although Plaintiff has failed to number the paragraphs
in his complaint as specifically directed in this Court’s last order.

The amended

complaint contains a list of three Defendants and identifies the basis of subject matter
jurisdiction as an employment discrimination suit filed under 42 U.S.C. §2000e-5(f)(1).
(Doc. 6). Three separate Notices of Plaintiff’s right to sue, all dated November 20,
2017, are attached. (Doc. 6-1).
Although Plaintiff’s allegations are extremely conclusory, the United States
Supreme Court held in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) that the
prima facie requirements of Title VII are an evidentiary standard, not a pleading
standard. The Sixth Circuit has continued to apply Swierkiewicz’s holding even after the
Supreme Court’s decisions in Twombly and Iqbal. Based upon that case authority, it is
rare to recommend dismissal under §1915(e) even for such a conclusory complaint as
presented here. See Keys v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012).
Nevertheless, in Keys, the Sixth Circuit confirmed that the Supreme Court’s “plausibility”
standard still applies to causation in discrimination cases. Id. at 610.

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Because I conclude that Plaintiff’s amended complaint fails to allege sufficient
“’factual content’ from which a court, informed by its ‘judicial experience and common
sense,’ could ‘draw the reasonable inference,’” that any of the three Defendants
discriminated against Plaintiff by failing to hire him or in any other respect concerning
his compensation or terms and conditions of employment, because of his race or
national origin, I now recommend dismissal of Plaintiff’s amended complaint. Accord
John v. Cuyahoga County, 2017 WL 6344613 (N.D. Ohio Dec. 11, 2017)(dismissing
employment discrimination claims under 42 U.S.C. § 2000e and 42 U.S.C. § 1981,
where Plaintiff’s allegations that the Defendant discriminated against him in the hiring
process on the basis of his race and gender did not rise above the “speculative level,”
distinguishing Swierkiewicz).
In “Claim 1,” Plaintiff alleges that Defendant Siemens PLM Software (“Seimens”)
discriminated against him based upon his “race and nation of origin.” (Doc. 6 at 2).
Plaintiff alleges that he applied for student internship positions with Seimens in
Germany, but that he was informed by Seimens employee Mary Otte on September 1,
2016 that international placements were available only for “students that are enrolled in
the university’s International Co-op Program.” (Doc. 6 at 3). Plaintiff does not assert
that he was enrolled in the referenced program. Instead, he alleges that prior to receipt
of this information from Ms. Otte, on June 21, 2016, he was told by University of
Cincinnati employee Gayle Elliott that
The strong German language and culture preparation we provide is what
attracted Siemens to the ICP [International Co-op Program]. The summer
intensive German course for students in the class of 2018 begins in just a
few weeks, and it is not possible to accept another student into the
program at this time.

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(Doc. 6 at 3-4). Plaintiff alleges that Siemens’ decision not to offer him an international
co-op position violates Title VII because it was based on whether or not he had “‘strong
German language and culture preparation’, which means that the plaintiff was being
discriminated against for his race (African-American) and nation of origin, which is the
United States of America.”

(Doc. 6 at 4, emphasis added).

However, the mere

allegation that Siemens’ decision not to hire Plaintiff as an international co-op was
somehow based on Plaintiff’s race and national origin does not make it so.

Even

though Plaintiff is not required to plead the elements of a prima facie case, his
conclusory allegation simply does not raise a “plausible” inference of discrimination
based on either race or national origin.
In “Claim 2,” Plaintiff alleges that Cincinnati Children’s Hospital Medical Center
(“CCHMC”) also violated Title VII. Plaintiff alleges that on November 3, 2017, he was
informed by a fellow undergraduate student that the fellow student had obtained a
position with CCHMC at a wage of $15 per hour.

Plaintiff further alleges that,

apparently before returning to pursue an additional degree at the University of
Cincinnati, Plaintiff graduated from Xavier University with a degree in Liberal Arts in
2011. (Doc. 6 at 6). Plaintiff states that, based upon advice given to him by University
of Cincinnati employee Chris Cooper, Plaintiff removed the reference to his Xavier
degree from Plaintiff’s resume prior to applying for a December 2016 UC co-op position
with CCHMC. CCHMC advised him that UC co-op positions pay $11 per hour. Plaintiff
thereafter sent in a new application to CCHMC with the reference to his bachelor’s
degree added back to his resume, and a few days later on December 19, 2016, was
informed by CCHMC that he would be eligible to receive a wage of $15.50 per hour.

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Plaintiff alleges that he was initially “discriminated against ‘with respect to
compensation’ based on the fact that another student who had less experience…had
been offered compensation for a student training position that was $4 more than the
plaintiff’s original offer….” (Doc. 6 at 7). He alleges that at the time that CCHMC first
offered him $11 per hour, CCHMC “thought the plaintiff was working toward his first
bachelor’s degree, and based on the compensation offered to another student working
on his first bachelor’s degree, it can be concluded that the plaintiff was discriminated
against ….” (Doc. 6 at 8, emphasis added).
Once again, this Court cannot agree with Plaintiff’s conclusory assertion that
CCHMC violated Title VII. Claim 2 does not even contain so much as a conclusory
allegation of discrimination based upon any protected class, much less present any
factual support to support a plausible inference of such discrimination. Plaintiff alleges
only that: (1) an initial offer of employment for a co-op position was provided by CCHMC
at a wage of $11 per hour, and was shortly thereafter increased to an offer at $15.50
per hour; and (2) some other undergraduate student was at one time paid a higher
wage than Plaintiff was initially offered.

Plaintiff’s allegation that he was somehow

“discriminated” against by CCHMC (not, it appears, based on any protected class but on
Plaintiff’s decision not to list his Xavier degree on his initial employment application) fails
to state any plausible claim under Title VII.
In “Claim 3,” Plaintiff alleges that the University of Cincinnati discriminated
against him based on his race and national origin when its employee, Gayle Elliott,
advised him on June 21, 2016 that “The summer intensive German course for students
in the class of 2018 begins in just a few weeks, and it is not possible to accept another

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student into the program at this time.” (Doc. 6 at 8). Plaintiff also includes the alleged
text of a lengthy June 24, 2016 email from University of Cincinnati Employee Chris
Cooper as evidence of discrimination. That email states, in relevant part:
Hi Bryan,
I think that there might be a bit of confusion as to why you won’t be able to
participate in the ICP program, so I wanted to step in and try to provide
some clarification, as well as a few possible options for you.
The International Co-op Program requires that students take an intensive
language course (during this semester for you), as well as several other
cultural and language courses. All students who participate in the
program are required to do this, as well as take the Introduction to
International Co-op Course. It would be too late for you to participate in
these courses, which is why the program requires that students apply so
early.
Aside from the course requirements, Siemens PLM is hiring one student
for the German program, and that student has already been selected.
Hiring a student internationally requires much more time, money, and
coordination than hiring a student domestically. I know that Siemens PLM
is the largest CS employer domestically, so it’s easy to think that they
have room and resources to hire multiple students internationally. This
simply isn’t the case, especially since this is their first international student
hire.
Even though you won’t be able to participate in the ICP German, that
doesn’t mean that you can’t co-op or intern in Germany, or another
country for that matter. We have excellent programs in Singapore, Hong
Kong, and Toronto, as well as a few newer programs that may be
available to you on a shorter time frame. We also have memberships to
services such as http://www.goingglobal.com, which could help you locate
an international co-op, outside of our official program. There are also paid
third party services that can help you secure a position.
Considering your great GPA and the fact that you found a position in
Germany for your first coop, I think that your chances of finding an
international position are very good, whether it be for both the spring and
summer, or just the summer.
I can certainly understand your frustration, but I wanted to try to clarify why
you won’t be able to work for Siemens PLM internationally in the spring.
I’m happy to help you to pursue one of our other international programs or
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seek an opportunity outside of those programs. Please feel free to follow
up with me if you have any additional questions. I’ll be back in the office
on the 6th and 7th, and would be happy to meet with you as well, if you’d
like.
(Doc. 6 at 9-11, internal emphasis by Plaintiff omitted).
Plaintiff alleges that the references to requirements that Plaintiff take intensive
language courses as well as other academic cultural and language courses “show that
the plaintiff was being denied an opportunity simply because he was an American.”
(Doc. 6 at 11). Plaintiff further alleges that Gayle Elliott and Chris Cooper’s statements
that he was required to have “culture preparation and language courses” “means that
because the plaintiff is an African-American, he is not allowed to be admitted into the
International Co-Op program without first getting “culture preparation.” (Doc. 6 at 12).
He argues that the fact that another student in the International Co-op program had
been selected for the Co-op position in Germany, prior to the commencement of
required summer courses, proves that “the University of Cincinnati, by and through
Gayle Elliott and Chris Cooper, practices unlawful employment practices” in violation of
Title VII. (Doc. 6 at 12). Plaintiff’s conclusory leaps and inferences defy plausibility.

According to the Supreme Court, “plausibility” occupies that wide space
between “possibility” and “probability.” Iqbal, 556 U.S. at 678, 129 S.Ct.
1937. If a reasonable court can draw the necessary inference from the
factual material stated in the complaint, the plausibility standard has been
satisfied.
Keys v. Humana, Inc., 684 F.3d at 610; see also White v. Coventry Health and Life Ins.
Co., 680 Fed. Appx. 410 (6th Cir. 2017)(affirming dismissal of employment
discrimination complaint where allegations of discrimination were not plausible and
failed to rise above the speculative level).

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B. Alternative Screening Under Apple v. Glenn
In Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.1999), the Sixth Circuit affirmed the
district court's authority to sua sponte dismiss a non-prisoner pro se complaint for lack
of jurisdiction “at any time” where the filing fee has been made, “when the allegations of
a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit,
or no longer open for discussion.” Id. at 479. In the case presented, the same reasons
stated for dismissal under 28 U.S.C. § 1915(e) apply equally if the Court revokes
Plaintiff’s conditional in forma pauperis status and instead reviews the complaint sua
sponte under Apple v. Glenn. Accord Shabazz v. Xerox, 2014 WL 4181600; Saunders
v. Obama, 2012 WL 1030473, at *9 (S.D. Ohio, 2012).
III. Conclusion and Recommendation:
For the reasons stated,
1. Plaintiff’s in forma pauperis status should be REVOKED based upon a lack
of indigency, and he should be required to immediately pay the full $400.00
filing fee for this case. He should also be denied leave to appeal in forma
pauperis;
2. Plaintiff’s complaint should be dismissed sua sponte with prejudice for failure
to state any claim under Title VII or other federal law, either under 28 U.S.C. §
1915(e) if Plaintiff is permitted to continue to proceed in forma pauperis, or
alternatively, under Apple v. Glenn.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRYAN KANU,
Case No. 1:18-cv-37
Plaintiff,

Black, J.
Bowman, M.J.

v.

SIEMENS PLM SOFTWARE, et al.,

Defendants.

NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law
in support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

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