Pulera v. Morales et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 12/27/2016 DISMISSING CASE. 5 8 Plaintiff's MOTIONS for Leave to Proceed Without Prepayment of the Filing Fee DENIED. Action DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B ) for failure to state a claim upon which relief may be granted. The Court certifies any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting her appeal. (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 FOR
PROGRESS NATIONAL INC., MIKELLE
BLOECHL, MARY PETERS, TANYA
WINTERS, and BRIANNA FOX,

ORDER

Defendants.

On December 8, 2016, the Court screened the plaintiff’s original
complaint. (Docket #6). The Court found that the plaintiff failed to state any
valid claims. Id. at 3-4. The Court struck the complaint and required the
plaintiff to offer an amended complaint to continue this action. Id. at 4. On
December 22, 2016, the plaintiff submitted an amended complaint. (Docket
#7).
As noted in its December 8, 2016 screening order, the Court is required
to screen complaints brought under the in forma pauperis statute. See (Docket
#6 at 1); 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss such a complaint
if it raises claims that are legally “frivolous or 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. The same standards cited in the original
screening order apply here. (Docket #6 at 1-3).
The plaintiff’s amended complaint appears to incorporate the same
facts as stated in the original complaint. (Docket #7 at 11). The plaintiff also

includes an additional narrative statement. Id. at 5. The statement, however,
is generally less descriptive than the original complaint’s factual allegations.
Id. The new narrative alleges that from 2010 to 2016, the defendants SERJOBS for Progress (“SER-JOBS”) and Tony F. Morales (“Morales”), the
organization’s attorney, “failed . . . to reply to [the plaintiff].” Id. As with her
original complaint, the plaintiff mentions that her “private information” was
taken without explaining what if any problems that caused. Id. She further
states that she entered the defendants’ program twice and did not receive job
retraining. The plaintiff reiterates that her claims are brought pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age
Discrimination in Employment Act (“ADEA”). Id. at 4.
The plaintiff still fails to state any viable claims. First, as discussed in
the Court’s original screening order, she has named defendants without
attaching any factual allegations to them. (Docket #6 at 4). The plaintiff now
names even more defendants but again, other than for Morales and SERJOBS, fails to describe their involvement in the relevant events. See (Docket
#7 at 2).
Second, and more importantly, the plaintiff fails to demonstrate that
she satisfied the conditions precedent to this suit. As noted in the original
screening order, Title VII and the ADEA require plaintiffs seeking to pursue
claims in federal court to first file a charge with the EEOC. (Docket #6 at 3);
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). Despite the

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Court’s instructions, the plaintiff has again failed to attach an EEOC right-tosue letter or even allege that one exists.
The plaintiff was afforded an opportunity to correct the deficiencies
with her original complaint, and given specific instructions on how to do so,
but she did not heed that advice. Because she still fails to state any viable
claims for relief, the Court must reject her amended complaint and dismiss
this action. It will do so without prejudice, however, as it is not clear whether
the plaintiff could ultimately obtain the required right-to-sue letter and
correct the other problems with her pleadings. See Prince v. Stewart, 580 F.3d
571, 572 (7th Cir. 2009). The Court must also deny the plaintiff’s motions for
leave to proceed in forma pauperis. (Docket #5 and #8).
Accordingly,
IT IS ORDERED that the plaintiff’s motions to proceed in forma
pauperis (Docket #5 and #8) be and the same are hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim upon which relief may be granted; and
THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the
plaintiff offers bonafide arguments supporting her appeal.
The Clerk of the Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 27th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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