Pulera v. Morales et al

Filing 6

ORDER signed by Judge J. P. Stadtmueller on 12/8/2016. 1 Plaintiff's Complaint STRICKEN. Plaintiff to file Amended Complaint on or before 12/30/2016. 2 Plaintiff's MOTION to Appoint Counsel DENIED without prejudice. (cc: all counsel, via mail to Mary Kay Pulera)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARY KAY PULERA,
Plaintiff,

Case No. 16-CV-1539-JPS

v.
TONY F. MORALES, SER-JOBS SENIOR
COMMUNITY SERVICE, MIKELLE
BLOECHL, and MARY PETERS,

ORDER

Defendants.
The plaintiff filed a pro se complaint alleging violations of federal law.
(Docket #1). This matter comes before the court on the plaintiff’s petition to
proceed in forma pauperis. (Docket #5). Notwithstanding the payment of any
filing fee, the Court must dismiss a complaint if it raises claims that are
“frivolous or malicious,” that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th
Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).

To state a cognizable claim under the federal notice pleading system,
the plaintiff is required to provide a “short and plain statement of the claim
showing that [she] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts, and her statement need only
“give the defendant fair notice of what the…claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, 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). To state a claim, a complaint must contain
sufficient factual matter, accepted as true, “that is plausible on its face.” Id.
(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility 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. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by
factual allegations. Id. If there are well-pleaded factual allegations, the court
must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. The court is obliged to give
the plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal

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construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff alleges that Defendant Tony F. Morales (“Morales”)
violated Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age
Discrimination in Employment Act (“ADEA”). (Docket #1 at 7). Specifically,
she alleges that she applied to a program run by Defendant SER-JOB Senior
Community Service (“SER-JOBS”) looking for work. Id. Someone took her
“private information and filed it in some office[,]” stating that there was no
on-the-job retraining that fit her skills. Id. The plaintiff alleges that her
request for job retraining was denied in favor of a “Mexican-American Man,
so he could get free housing.” Id. She further complains that “this Contractor
don’t help Single Parents ages 55 or older.” Id. The plaintiff asks for lost
wages from 2012 to 2016 as damages. Id.
The plaintiff fails to state a claim for age discrimination. First, the
claims may be time-barred. For both statutes she cites, the plaintiff was
required to bring suit within three hundred days of the discriminatory act.
Riley v. Elkhart Comm. Schs., 829 F.3d 886, 890-91 (7th Cir. 2016). It appears,
given the dates of lost wages the plaintiff seeks, that the alleged
discrimination occurred long before that cut-off.
Further, it is not clear that the plaintiff has satisfied the conditions
precedent to this suit. Title VII and the ADEA require plaintiffs seeking to
pursue claims in federal court to first file a charge with the EEOC. Sauzek v.
Exxon Coal USA, Inc., 202 F.3d 913, 920 (7th Cir.2000). A party not named in
an EEOC charge may not be sued under Title VII or the ADEA. Alam v. Miller
Brewing Co., 709 F.3d 662, 666 (7th Cir.2013). Though she references a “right

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to sue,” the plaintiff has not attached a right-to-sue letter from the EEOC
showing that she named these defendants, stated these claims, and was
granted permission to sue.
Finally, the only defendants discussed in the plaintiff’s factual
allegations are Morales and SER-JOBS. The other two defendants Mikelle
Bloechl and Mary Peters, are not referenced, so they would be dismissed. All
of the above procedural and technical defects reveal that the complaint, as
currently presented, fails to state any valid claims. It must, therefore, be
stricken, even before the Court reaches its substance.1
If the plaintiff wants to proceed, she must file an amended complaint
curing the above-described deficiencies. The amended complaint must be
filed on or before December 30, 2016. Failure to file an amended complaint
within this time period may result in dismissal of this action. The plaintiff is
advised that the amended complaint must bear the docket number assigned
to this case and must be labeled “Amended Complaint.” The plaintiff is
further advised that a successful complaint alleges “the who, what, when,
where, and how: the first paragraph of any newspaper story.” See DiLeo v.
Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990).
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v. Bd.
of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that, in such instances, the

1

The Court notes that there may be substantive problems as well; the plaintiff
has not alleged that the retraining program was denied to her because of her age, or
that the person who was admitted to the program was a different age than her (she
cites only his national origin). (Docket #1 at 7).

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“prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general
matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006)). If an amended complaint is received, it will be
screened pursuant to 28 U.S.C. § 1915(e)(2)(B).
The Court also addresses the plaintiff’s motion for appointment of
counsel. (Docket #2). Under 28 U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford counsel.” The Court should
seek counsel to represent the plaintiff if the plaintiff: (1) has made reasonable
attempts to secure counsel; and (2) “‘the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)
(quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)).
The Court will deny the plaintiff’s motion under the first prong of the
Pruitt test. Her motion, one sentence long, makes no reference to any
attempts to secure counsel. (Docket #2). The plaintiff’s motion to appoint
counsel will, therefore, be denied without prejudice. As to the motion for
leave to proceed in forma pauperis, the Court will hold its ruling thereon until
an amended complaint is received.
Accordingly,

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IT IS ORDERED that the plaintiff’s complaint of November 17, 2016
(Docket #1) be and the same is hereby STRICKEN;
IT IS FURTHER ORDERED that the plaintiff shall file an amended
complaint on or before December 30, 2016; and
IT IS FURTHER ORDERED that the plaintiff’s motion for
appointment of counsel (Docket #2) be and the same is hereby DENIED
without prejudice.
Dated at Milwaukee, Wisconsin, this 8th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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