Moton v. Park Place Hospitality LLC

Filing 6

ORDER signed by Judge Pamela Pepper on 10/10/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED. US Marshal to serve copy of amended complaint + attachments, waiver of service form and/or summons, magistrate judge consent/refusal form, and this order on defendant under FRCP 4. Plaintiff to notify clerk's office of any change of address. (cc: all counsel, via mail to Ned Lee Moton)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

NED LEE MOTON,
Plaintiff,
v.

Case No. 17-cv-178-pp

PARK PLACE HOSPITALITY, LLC,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), AND
ORDERING THE U.S. MARSHAL’S SERVICE TO
SERVE THE AMENDED COMPLAINT

On February 7, 2017, the plaintiff filed a pro se complaint, dkt. no. 1,
along with a motion for leave to proceed without prepayment of the filing fee,
dkt. no. 1. The court issued an order on February 24, 2017, concluding that
although the plaintiff had satisfied the financial requirements to show that he
could not pay the filing fee, the complaint contained almost no facts to explain
what the defendant did to make the plaintiff believe that he had been
discriminated against on the basis of age and/or race. Dkt. No. 3. The court
ordered the plaintiff to file an amended complaint, alleging specific facts
relevant to his claims of discrimination. Id. The court received the plaintiff’s
amended complaint on March 16, 2017. Dkt. No. 5. The court has reviewed
that complaint, and the documents the plaintiff attached to it; based on that
review, the court will grant the plaintiff leave to proceed without prepayment of
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the filing fee, and will order the U.S. Marshals Service to serve a copy of the
amended complaint on the defendant.
Because the plaintiff is representing himself, and is asking the court to
allow him to proceed without prepaying the filing fee, the court must “screen”
the complaint under 28 U.S.C. §1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778,
783 (7th Cir. 1999) (“District courts have the power to screen complaints filed
by all litigants.”). When screening a complaint under §1915(e)(2), the court
must decide whether the complaint is frivolous, or states claims upon which a
federal court can’t grant relief. The allegations in the complaint must go beyond
a merely speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). On the other hand, the court gives a pro se plaintiff some lenience, and
a pro se plaintiff’s claims need not be “artfully” pled. See, e.g. Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
The plaintiff, a sixty-six year old African American male, alleges age and
race discrimination. Dkt. No. 5 at 1. According to the plaintiff, on October 11,
2013, the general manager of Park Place Hospitality fired him from his job as
the driver of the company van after discovering that the plaintiff had lost his
license on April 13, 2013 for operating while intoxicated. The plaintiff alleges
that he still had an occupational license, and still could drive the hotel van.
Allegedly, Park Place Hospitality allowed another driver, a twenty-five year old
Caucasian employee who also had an OWI on his record, to remain on the job.
At this early stage of litigation, the plaintiff has alleged that his employer fired
him—a sixty-six-year-old African-American man—while keeping a Caucasian
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man in his twenties who was similarly situated. This is enough to allow the
plaintiff to move forward on his claims of discrimination based on age and race.
It also appears from the documents the plaintiff attached to the amended
complaint that the plaintiff has exhausted his administrative remedies with the
E.E.O.C.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court ORDERS the U.S. Marshals Service to serve a copy of the
amended complaint and attachments; a waiver of service form and/or the
summons; the magistrate judge consent/refusal form; and this order on the
defendant under Rule 4 of the Federal Rules of Civil Procedure. 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 full fee
schedule is available at 28 C.F.R. § 0.114(a)(2)-(3). Even though Congress
requires the court to order service by the U.S. Marshals Serve when the court
allows a person to proceed without prepayment of the filing fee, Congress has
not provided for these fees to be waived, either by the court or the U.S.
Marshals Service.
The plaintiff does not need to take any other action at this time. After the
defendant answers or otherwise responds to the complaint, the court will notify
the plaintiff of the next steps in the process.
The court ORDERS that the plaintiff shall notify the clerk of court’s office
of any change of address. Failure to provide such notification or make any
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timely submission may result in the dismissal of this action for failure to
prosecute. The court also advises the plaintiff that if, in the future, he does not
file documents by the deadlines the court sets, the court may dismiss his case
for failure to diligently prosecute it.
Dated in Milwaukee, Wisconsin this 10th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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