Thomas v. Tennessee Valley Authority et al

Filing 4

Order of Partial Dismissal and Order to Issue and Effect Service of Process on the Remaining Defendants. Signed by Judge S. Thomas Anderson on 7/6/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

THEODORE THOMAS,
Plaintiff,
vs.
TENNESSEE VALLEY AUTHORITY,
et al.,
Defendants.

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No. 11-2712-STA-dkv

ORDER OF PARTIAL DISMISSAL
AND
ORDER TO ISSUE AND EFFECT SERVICE OF PROCESS
ON THE REMAINING DEFENDANTS

On August 18, 2011, Plaintiff Theodore Thomas, a resident
of Memphis, Tennessee, filed a pro se complaint pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and
the

Rehabilitation

Act

of

1973,

29

U.S.C.

§§

701

et

seq.,

accompanied by a motion seeking leave to proceed in forma pauperis.
(ECF Nos. 1 & 2.) The Court issued an order on August 19, 2011,
granting leave to proceed in forma pauperis. (ECF No. 3.) The Clerk
shall record the defendants as the Tennessee Valley Authority
(“TVA”); Tom Kilgore, the President and Chief Executive Officer of
the TVA; and the TVA Board of Directors.
The

Court

is

required

to

screen

in

forma

pauperis

complaints and to dismiss any complaint, or any portion thereof, if
the action —
(i)

is frivolous or malicious;

(ii)
fails to state a claim on which relief may be
granted; or
(iii)
seeks monetary relief against a defendant who
is immune from such relief.
28 U.S.C. § 1915(e)(2).
In assessing whether the complaint in this case states a
claim on which relief may be granted, the standards under Federal
Rule of Civil Procedure 12(b)(6), as stated in Ashcroft v. Iqbal,
556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868
(2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57,
127 S. Ct. 1955, 1964-66, 167 L. Ed. 2d 929 (2007), are applied.
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Accepting all
well-pleaded

allegations

in

the

complaint

as

true,

the

Court

‘consider[s] the factual allegations in [the] complaint to determine
if they plausibly suggest an entitlement to relief.’” Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S.
at 681, 129 S. Ct. at 1951) (alteration in original). “[P]leadings
that . . . are no more than conclusions[] are not entitled to the
assumption
framework

of
of

truth.
a

While

complaint,

legal
they

conclusions

must

be

can

supported

provide
by

the

factual

allegations.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950; see also
Twombly, 550 U.S. at 555 n.3, 127 S. Ct. at 1964-65 n.3 (“Rule
8(a)(2) still requires a ‘showing,’ rather than a blanket assertion,
of entitlement to relief. Without some factual allegation in the
complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the
claim, but also ‘grounds’ on which the claim rests.”).

2

“A complaint can be frivolous either factually or legally.
Any complaint that is legally frivolous would ipso facto fail to
state a claim upon which relief can be granted.” Hill, 630 F.3d at
470 (internal citation omitted).
Whether a complaint is factually frivolous under §§
1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from
whether it fails to state a claim for relief. Statutes
allowing a complaint to be dismissed as frivolous give
judges not only the authority to dismiss a claim based on
an indisputably meritless legal theory, but also the
unusual power to pierce the veil of the complaint’s
factual allegations and dismiss those claims whose factual
contentions are clearly baseless. Unlike a dismissal for
failure to state a claim, where a judge must accept all
factual allegations as true, a judge does not have to
accept “fantastic or delusional” factual allegations as
true in prisoner complaints that are reviewed for
frivolousness.
Id. at 471 (internal citations & quotation marks omitted).
“Pro se complaints are to be held to less stringent
standards than formal pleadings drafted by lawyers, and should
therefore

be

liberally

construed.”

Williams,

631

F.3d

at

383

(internal quotation marks omitted). Pro se litigants, however, are
not exempt from the requirements of the Federal Rules of Civil
Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see
also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (“[A]
court cannot create a claim which [a plaintiff] has not spelled out
in his pleading”) (internal quotation marks omitted); Payne v.
Secretary of Treas., 73 F. App’x 836, 837 (6th Cir. 2003) (affirming
sua sponte dismissal of complaint pursuant to Fed. R. Civ. P.
8(a)(2) and stating, “[n]either this court nor the district court
is required to create Payne’s claim for her”); cf. Pliler v. Ford,
542 U.S. 225, 231, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338 (2004)
3

(“District judges have no obligation to act as counsel or paralegal
to pro se litigants.”); Young Bok Song v. Gipson, 423 F. App’x 506,
510 (6th Cir. 2011) (“[W]e decline to affirmatively require courts
to ferret out the strongest cause of action on behalf of pro se
litigants. Not only would that duty be overly burdensome, it would
transform

the

courts

from

neutral

arbiters

of

disputes

into

advocates for a particular party. While courts are properly charged
with

protecting

the

rights

of

all

who

come

before

it,

that

responsibility does not encompass advising litigants as to what
legal theories they should pursue.”), cert. denied, ___ U.S. ___,
132 S. Ct. 461, 181 L. Ed. 2d 300 (2011).
The Complaint contains no factual allegations against
Defendant Kilgore other than the statement that the TVA acts through
him. (Compl. ¶ 14, ECF No. 1.) Plaintiff cannot sue Kilgore in his
individual capacity under Title VII. An employer is defined under
Title VII as “a person engaged in an industry affecting commerce who
has fifteen or more employees . . . and any agent of such person.”
42 U.S.C. § 2000e(b). The Sixth Circuit has held that, despite the
use of the term “agent” in the definition of “employer,” individual
coworkers or supervisors cannot be held liable under Title VII.
Akers v. Alvey, 338 F.3d 491, 499-500 (6th Cir. 2003); Wathen v.
General Elec. Co., 115 F.3d 400, 404-06 (6th Cir. 1997). Therefore,
the Court DISMISSES the Complaint against Defendant Kilgore pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).
The Complaint does not set forth the basis for Plaintiff’s
claim under the Rehabilitation Act. That claim is DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
4

Service will issue on Plaintiff’s Title VII claim against
the TVA and the TVA Board of Directors.1 It is ORDERED that the
Clerk shall issue process for Defendants and deliver that process
to the marshal for service. Service shall be made on Defendants
pursuant to Federal Rule of Civil Procedure 4(i)(2). All costs of
service shall be advanced by the United States. The service on
Defendants shall include a copy of this order.
It is further ORDERED that Plaintiff shall serve a copy
of

every

document

filed

in

this

cause

on

the

attorneys

for

Defendants. Plaintiff shall make a certificate of service on every
document filed. Plaintiff shall familiarize himself with the Federal
Rules of Civil Procedure and this Court’s local rules.2
Plaintiff shall promptly notify the Clerk of any change
of address or extended absence. Failure to comply with these
requirements, or any other order of the Court, may result in the
dismissal of this case without further notice.
IT IS SO ORDERED this 6th day of July, 2012.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

1
The EEOC decision states that the proper defendants in any civil action
are the TVA Board of Directors. (See ECF No. 1-1 at 7.)
2

A free copy of the Local Rules may be obtained from the Clerk. The
Local
Rules
are
also
available
on
the
Court’s
website
at
www.tnwd.uscourts.gov/pdf/content/LocalRules.pdf.

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