Coleman v. WFA Staffing et al

Filing 5

ORDER signed by Judge Pamela Pepper on 12/9/2016 GRANTING 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee and Screening Complaint. (cc: all counsel and copy sent to the plaintiff by US Mail on 12/9/2016.) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TRACEY COLEMAN,
Plaintiff,
v.

Case No. 16-cv-1530-pp

WFA STAFFING and
RCS COMMERCIAL INTERIORS,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS (DKT. NO. 2) AND SCREENING COMPLAINT
______________________________________________________________________________
The plaintiff, who is proceeding without a lawyer, filed this complaint on
November 16, 2016. Dkt. No. 1. Along with the complaint, the plaintiff filed a
notice of right to sue letter from the EEOC dated October 28, 2016, and a
motion asking the court to allow him to proceed without paying the filing fee.1
Dkt. No. 2. The court will grant the plaintiff’s motion to proceed in forma
pauperis, will allow him to proceed on his race discrimination claim against
WFA Staffing, but will dismiss without prejudice the plaintiff’s age
discrimination claim against defendant WFA Staffing and both of his claims
against defendant RCS Commercial Interiors.
I.

SCREENING OF THE PLAINTIFF’S COMPLAINT
The court may allow a litigant to proceed without prepayment of the

filing fees if two conditions are met: (1) the litigant is unable to pay the filing
The plaintiff initially filed an unsigned complaint, but filed an executed
signature page a week or so later.
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fee; and (2) the case is not frivolous nor malicious, does not fail to state a claim
on which relief may be granted, and does not seek monetary relief against a
defendant that is immune from such relief. 28 U.S.C. §§1915(a) and (e)(2).
In his request to proceed without paying the filing fee, the plaintiff states
that he is not married and does not have a job, and that he does not financially
support any dependents. Dkt. No. 2, at 1. He receives $769 per month in
income, but he does not state the source of that income. Id. at 2. He does not
list any other property or assets. Id. 3-4. The plaintiff states that his total
monthly expenses are $670 per month, comprised of $300 in rent, $350 in
general household expenses, and $20 in alimony or court-ordered child
support. Id. Based on the information contained in the plaintiff’s application,
the court concludes that the plaintiff is unable to pay the filing fees and costs
associated with this action, so the plaintiff has met the financial requirements
of Section 1915(a).
Section 1915(e)(2)(B) requires a court to dismiss a case at any time if the
court determines that it “(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.” Thus, district courts “screen”
complaints filed by self-represented plaintiffs who request relief from the filing
fee, to determine whether they must dismiss complaints under these
standards.
A complaint is frivolous, for purposes of § 1915(e)(2)(B)(i), if “it lacks an
arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31
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(1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). The court may
dismiss a case as frivolous if it is based on an “indisputably meritless legal
theory” or where the factual contentions are “clearly baseless.” Id. at 32
(quoting Neitzke, 490 U.S. at 327). The standards for deciding whether to
dismiss a case for failure to state a claim under §1915(e)(2)(B)(ii) are the same
as those for reviewing claims under Federal Rule of Civil Procedure 12(b)(6).
DeWalt v. Carter, 224 F.3d 607, 611-12 (7th Cir. 2000). To survive dismissal,
the complaint must contain enough “[f]actual allegations . . . to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Although a complaint need not contain “detailed factual allegations,” a
complaint “that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). “In evaluating whether a plaintiff’s
complaint fails to state a claim, a court must take the plaintiff’s factual
allegations as true and draw all reasonable inferences in his favor.” DeWalt,
224 F.3d at 612. The court must liberally construe a pro se plaintiff’s
allegations, no matter how “inartfully pleaded.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff alleges that on July 10, 2016, he applied for a position as a
laborer with employment agency WFA Staffing, seeking a job as an in installer
with defendant RCS Commercial Interiors. Dkt No. 1 at 2. According to the
plaintiff, he spoke on the telephone with a WFA Staffing representative, Kelly
Fishnick, who told him to visit WFA Staffing’s office in order to apply for the
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job. Id. at 2, 6. The plaintiff says that according to Ms. Fishnick, the position
would give him on-the-job training as an installer; after getting that training,
he either could remain in training or could work as installer. Id. at 3. The
plaintiff alleges that Ms. Fishnick told him that she would submit his
application for the laborer position, and would contact him when the next
position became available. Id. The plaintiff asserts that later that month, he
contacted Ms. Fishnick to ask why WFA Staffing had not notified him of the
date for his orientation appointment. Id. Ms. Fishnick allegedly told the plaintiff
that he did not have an appointment, and that his application had not been
selected. Id. at 3-4.
The plaintiff claims that Ms. Fishnick incorrectly designated his
application as one for the position of “installer,” instead of the position of
“laborer,” which would have afforded him the on-the-job training to become an
installer in the future. Id. at 4. The plaintiff alleges that two weeks after his
application was rejected, Ms. Fishnick hired two individuals for the position for
which the plaintiff had applied. Id.
The plaintiff pleads two causes of action: that the defendants
discriminated against him because of his race, and that they discriminated
against him because of his age. Id. at 5. Construing the complaint liberally, the
court finds that the plaintiff’s complaint contains sufficient factual allegations
to state an employment discrimination claim against WFA Staffing under Title
VII – he expressly claims that WFA Staffing didn’t give him the job, and gave it
to others, because of his race. See Bennett v. Schmidt, 153 F.3d 516, 518 (7th
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Cir. 1998) (to state a race discrimination claim, “‘I was turned down for a job
because of my race’ is all a complaint has to say.”). For that reason, the court
finds that the complaint is not frivolous, and will grant the plaintiff’s motion to
proceed in forma pauperis.
Even construing the plaintiff’s allegations liberally, however, the court
finds that the plaintiff has failed to state a race discrimination claim against
defendant RCS Commercial Interiors. The complaint contains no allegations
that RCS had any role in turning him down for the laborer position, or in hiring
others for that position. There are no allegations that RCS had any role in WFA
Staffing’s actions. For that reason, the court will dismiss without prejudice the
plaintiff’s race discrimination claim against defendant RCS Commercial
Interiors.
The court also finds that the complaint does not state a plausible claim
for age discrimination against either defendant. The plaintiff does not tell the
court how old he is, or when he was born. Without this information, the court
has no way to assess whether the defendants may have discriminated against
him based on his age. The court will dismiss without prejudice the plaintiff’s
age discrimination claims against both defendants. See, e.g., Coleman v.
Wheaton Franciscan, No. 15-cv-610-DEJ, Order, Feb 25, 2016, Dkt. No. 6
(concluding the plaintiff failed to plead claims for age discrimination claims he
did not allege when he was born); Stark v. Foxx, 14 cv-148-JDP, 2015 WL
1321587, *3 (Mar. 24, 2015) (“To adequately plead age discrimination, Stark
must allege facts that plausibly show that FHWA did not select him for the ADA
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position because of his age, which would generally require him to allege facts
supporting a prima facie case.”); Purze v. City of Evanston, 13-cv-1503, 2013
WL 4501442, *4 (N.D. Ill. Aug. 21, 2013) (holding that the plaintiff sufficiently
pleaded an age discrimination claim by alleging, among other things, that she
was over 40 years old and a member of a protected class under the ADEA).
II.

CONCLUSION
The court GRANTS the plaintiff’s motion to proceed in forma pauperis.

The court DISMISSES WITHOUT PREJUDICE the plaintiff’s age discrimination
claim against defendant WFA Staffing and his age and race discrimination
claims against defendant RCS Commercial Interiors. The court DISMISSES
defendant RCS Commercial Interiors from this case, WITHOUT PREJUDICE.
The court ORDERS that, pursuant to 28 U.S.C. § 1915(d) and Federal
Rule of Civil Procedure 4, the United States Marshals Service shall serve a copy
of the complaint, a waiver of service form and/or the summons, and this order
on defendant WFA Staffing. Even though the court has permitted the plaintiff
to proceed in forma pauperis in this case, the plaintiff remains responsible for
the cost of serving the complaint on the defendants. The court advises the
plaintiff that Congress requires the U.S. Marshals Service to charge for making
or attempting to make such service. 28 U.S.C. § 1921. The current fee for
waiver-of-service packages is $8.00 per item. The full fee schedule appears in
Revision to United States Marshals Service Fees for Services. See 28 C.F.R.
§0.114(a)(2) and (a)(3). Although Congress requires the court to order service by
the U.S. Marshals Service precisely because in forma pauperis plaintiffs are
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indigent, it has not made any provision for either the court or by the U.S.
Marshals Service to waive this cost.
Dated in Milwaukee, Wisconsin this 9th day of December 2016.

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