Whitmore v. Mallory

Filing 2

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION re 1 Complaint: The Magistrate Judge RECOMMENDS that the Court DISMISS this action for failure to state a claim. Objections to R&R due within fourteen days of the date of this Report. Plaintiff 9;s 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/7/2015. (er)(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
EASTERN DIVISION

RICKY WHITMORE,
Plaintiff,
Civil Action 2:15-cv-2468
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

ELMEACO MALLORY,
Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Ricky Whitmore, an Ohio resident who is proceeding without the assistance of
counsel, brings this action against Elmeaco Mallory, an investigator for the Equal Employment
Opportunity Commission (“EEOC”) who handled Plaintiff’s discrimination claims. Plaintiff’s
request to proceed in forma pauperis is GRANTED. (ECF No. 1.) All judicial officers who
render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).
This matter before the United States Magistrate Judge for the initial screen of Plaintiff’s
Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend
dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the
reasons that follow, it is RECOMMENDED that the Court DISMISS this action for failure to
state a claim.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

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Formerly 28 U.S.C. § 1915(d).
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”
Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April
1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,
has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.
Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989)).

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II.
According to the Complaint, Plaintiff filed a discrimination charge against his former
employer with the EEOC. Defendant was assigned to investigate Plaintiff’s charge. Plaintiff
filed this instant action against Defendant because he is dissatisfied with Defendant’s
investigation and resolution of his charge against his former employer. In terms of relief,
Plaintiff asks this Court to construe the terms of an agreement he apparently entered into with his
former employer and also to declare that Defendant improperly handled his claim against his
former employer.
Plaintiff’s dissatisfaction with Defendant’s handling of his discrimination charges fails to
state a claim upon which relief may be granted because no private right of action to assert such a
claim exists. Darby v. United States Dep’t of Energy, No. 05-4325, 2006 WL 7348136, at *6
(6th Cir. June 9, 2006) (holding that “[t]he [plaintiff’s] claim lacks merit because [she] has no
cause of action against the EEOC for the alleged improper handling of her complaints”) (citing
Ward v. EEOC, 719 F.2d 311, 313–14 (9th Cir. 1983) (no private right of action against EEOC
for unsatisfactory resolution of discrimination complaint)); Jackson v. Frank, No. 90-1266, 1990
WL 182029, at *1 (6th Cir. Nov. 23, 1990) (“The district court properly dismissed [the
plaintiff’s] claims against [the EEOC investigator] as the courts have consistently recognized
that the EEOC and its employees are not subject to suit for actions taken in their review of
complaints for discrimination.” (citations omitted)). Accordingly, it is RECOMMENDED that
the Court DISMISS this action for failure to state a claim.
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s Complaint in the
above-captioned actions be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
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PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).

IT IS SO ORDERED.

Date: July 7, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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