Kittrell v. City of Milwaukee

Filing 6

ORDER signed by Judge J P Stadtmueller on 10/25/11 as follows: granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; denying without prejudice 3 plaintiff's motion requesting trial by jury; denying 4 plaintiff's Motion to Appoint Counsel; and, directing the U.S. Marshal serve a copy of the summons and complaint upon defendant City of Milwaukee. See Order. (cc: plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CLARA KITTRELL,
Plaintiff,
v.

Case No. 11-CV-941-JPS

CITY OF MILWAUKEE,
Defendant.

ORDER

On October 7, 2011, pro se plaintiff Clara Kittrell (“Kittrell”) filed a
complaint against her former employer, the City of Milwaukee (the “City”),
alleging that she was subjected to harassment in retaliation for filing with the
Equal Employment Opportunity Commission (“EEOC”) an earlier charge of
discrimination against the City. (Docket #1). It appears that Kittrell has sued
the City under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C.
§ 2000e et seq. as she has submitted a right-to-sue letter from the EEOC along
with her complaint.1 Accompanying Kittrell’s complaint is a motion for leave
to proceed in forma pauperis. (Docket #2).
Before the court can allow the plaintiff to proceed in forma pauperis, the
court is obligated to determine that the plaintiff is unable to pay the $350.00
filing fee and that her case: (1) is not frivolous or malicious; (2) does not fail
to state a claim upon which relief may be granted; and (3) does not seek
monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2).

1

Kittrell’s complaint also alludes to several potential tort claims, including
defamation and invasion of privacy. As these claims appear to be underdeveloped,
the court focuses its screening order solely on Kittrell’s Title VII claim.

Congress’ intent in enacting the federal in forma pauperis statute was
“to guarantee that no citizen shall be denied an opportunity to commence,
prosecute, or defend an action, civil or criminal, in any court of the United
States, solely because…poverty makes it impossible…to pay or secure the
costs” of litigation. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342
(1948). “At the same time that it sought to lower judicial access barriers to
the indigent, 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.’” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v.
Williams, 490 U.S. 319, 324 (1989)). In response to this concern, Congress
provided courts with the authority to dismiss an in forma pauperis complaint
if satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e).
Moreover, a complaint should be dismissed for failure to state a claim upon
which relief may be granted if it appears beyond doubt that the plaintiff can
prove no set of facts that would entitle her to relief. Hishon v. King & Spalding,
467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In
reviewing a complaint under this standard, the court must accept as true the
allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital
Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins
v. McKeithen, 395 U.S. 411, 421 (1969).
1.

Title VII Retaliation Claim
Title VII of the Civil Rights Act of 1964 forbids employment

discrimination based on “race, color, religion, sex, or national origin,” 42
U.S.C. § 2000e–2(a), and its antiretaliation provision forbids discrimination
against an employee or job applicant who has “made a charge, testified,
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assisted, or participated in” a Title VII proceeding or investigation,
§ 2000e–3(a). It appears that Kittrell brings her claim under this latter
provision, though she does not elaborate on the substance of her earlier
charge of discrimination under §2000e-2(a). To prevail on a Title VII
retaliation claim, a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, “which in this context
means it well might have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’ ” Burlington Northern and Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006).
Accepting that Kittrell did indeed file a charge of discrimination with
the EEOC, her allegations of retaliation are plausible, albeit slightly unusual.
For instance, Kittrell alleges that in retaliation for her filing a charge of
discrimination with the EEOC and in an effort to force her resignation, her
employer told coworkers and the police – no less – that she was flushing
paper towels down the toilet, leading to an overflowing of toilets in the
building. (Compl. at 3). Kittrell also asserts that the defendant encouraged
coworkers to post “very brutal signs geared at embarrassing me” including
one with a picture of a “big, black bull that referred to [Kittrell] as a
‘Poopatraitor.’” (Id.). Additionally, Kittrell alleges that the defendant had her
questioned at work regarding the toilet overflowing incident, which
humiliated her and caused her to resign from her position. (Id. at 4). Viewing
her allegations in a light most favorable to Kittrell and resolving all doubts
in her favor, it appears that Kittrell has stated a claim upon which relief may
be granted. Moreover, the court does not find that her claims are frivolous
or malicious.

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2.

Indigence
Next, the court also finds that based upon her IFP form – an affidavit

in which she declares her assets and income under penalty of perjury – the
plaintiff is unable to pay the costs of commencing this action. While she does
possess a car valued at $5,075 and has $624.00 in a savings or checking
account, Kittrell’s monthly expenses outstrip her income. As such, it does
not appear that Kittrell has the ability to pay the $350 filing fee “and still be
able to provide [her]self . . . with the necessities of life.” Adkins v. E.I. DuPont
de Nemours & Co., 335 U.S. 331, 339 (1948). Accordingly, the court will grant
Kittrell’s motion for leave to proceed in forma pauperis.
3.

Motion to Appoint Counsel
Kittrell has also filed a motion to appoint counsel. (Docket #4).

Although civil litigants do not have a constitutional or statutory right to
appointed counsel, the court has the discretion to request attorneys to
represent indigents in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1).
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007); Lutrrell v. Nickel, 129 F.3d 933,
936 (7th Cir. 1997) (citing Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995)). As
a threshold matter, litigants must make a reasonable attempt to secure
private counsel on their own. Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288.
Once this threshold burden has been met, the court must address the
following question: given the difficulty of the case, does this plaintiff appear
competent to litigate the case herself and, if not, would the presence of
counsel likely make a difference in the outcome of the case. Pruitt, 503 F.3d
at 654-55 (citing Farmer v. Hass, 990 F.2d 319, 322 (7th Cir. 1993)). Here,
Kittrell has not demonstrated that she has attempted to secure private
counsel. Consequently, the court is obliged to deny her motion to appoint
counsel.
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4.

Motion for Jury Trial
Moreover, Kittrell has filed a “motion requesting trial by jury.”

(Docket #3). The court will deny this motion because it is premature at this
stage of the proceedings. However, the court notes that Kittrell’s complaint
requests a trial by jury and, therefore, she has not waived such a right.
Accordingly,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff’s motion requesting trial by
jury (Docket #3) be and the same is hereby DENIED without prejudice;
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
(Docket #4) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the summons and complaint upon defendant City of
Milwaukee pursuant to Fed. R. Civ. P. 4(c)(3). The plaintiff is advised that
Congress requires the U.S. Marshals Service to charge for making or
attempting such service. 28 U.S.C. § 1921(a). The current fee for waiver-ofservice packages is $8.00 per item mailed. The full fee schedule is provided
at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to
order service by the U.S. Marshals precisely because in forma pauperis
plaintiffs are indigent, it has not made any provision for these fees to be
waived either by the court or by the U.S. Marshals Service.
Dated at Milwaukee, Wisconsin, this 25th day of October, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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