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Moseley v. Boente

United States District Court, S.D. Georgia, Brunswick Division

February 6, 2017

CARY G. MOSELEY, JR., Plaintiff,
DANA BOENTE, in his official capacity as Attorney General of the United States, Defendant.



         For the reasons set forth below, the Court hereby VACATES the Report and Recommendation and Order issued January 13, 2017. (Doc. 10.) The Court GRANTS Plaintiff's Motion for Leave to Proceed in Forma Pauperis, (doc. 3), and DENIES Plaintiff's Motion to Appoint Counsel, (doc. 4). The Court also DIRECTS the United States Marshal to serve this action and provides instructions to the parties which they are urged to follow.


         On November 16, 2016, Plaintiff filed this action, pro se, pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), alleging employment discrimination against him by his employer. (Doc. 1.) Concurrent with his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 3.) On December 14, 2016, this Court directed Plaintiff to amend his Complaint to include information regarding Plaintiff's efforts to exhaust his administrative remedies and to clarify whether he had exhausted with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 7.) Specifically, the Court directed Plaintiff to provide a copy of the right-to-sue letter he indicated he received from the EEOC on November 7, 2016. (Doc. 1, p. 8.)

         However, in his Amended Complaint, Plaintiff simply provided a copy of his investigation file from the Bureau of Prisons and various other documents pertaining to an internal investigation. (Doc. 8.) Plaintiff gave no clarity as to whether he had actually appealed the Bureau of Prisons' decision with the EEOC and received a right-to-sue letter. Accordingly, I recommended that the Court dismiss Plaintiff's action without prejudice for failure to exhaust administrative remedies.

         Plaintiff filed Objections to this Report and Recommendation on January 13, 2017. (Doc. 11.) In his Objections, Plaintiff states that he never received a right-to-sue letter from the EEOC. Furthermore, Plaintiff indicates through the supplemental materials in his Objections that he never appealed the Department of Justice's final order to the EEOC. Instead, Plaintiff filed this civil suit.


         I. Initial Review of Exhaustion of Administrative Remedies

         Under the ADA, a plaintiff may not sue unless he first exhausts available administrative remedies. Zillyette v. Capital One Financial Corp., 179 F.3d 1337, 1339 (11th Cir. 1999) (“[U]nder the ADA, plaintiffs must comply with the same procedural requirements to sue as exist under Title VII of the Civil Rights Act of 1964.”) However, the ADA does not apply to employment by the federal government or its agencies. 42 U.S.C. §§ 12111(5) & 12131(1). Here, Plaintiff's claims are against a federal employer, the Bureau of Prisons, and consequently, the Department of Justice. As such, his claims are covered by the Rehabilitation Act, 29 U.S.C. § 701, et seq. See Spence v. Straw, 54 F.3d 196, 202 (3d Cir. 1995) (“[T]he Rehabilitation Act provides the exclusive means by which a litigant may raise claims of discrimination on the basis of handicap by federal agencies.”). The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the ADA against private employers-including the requirements for exhaustion. 29 C.F.R. § 1614.203. Because of these similarities and Plaintiff's status as a pro se party, the Court has read his pleading liberally to construe that Plaintiff is attempting to sue the Department of Justice pursuant to the Rehabilitation Act. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)).

         In a Title VII suit against a federal agency, an employee must contact an agency's Equal Employment Opportunity (“EEO”) counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).[1] After contacting a counselor, a plaintiff alleging an individual discrimination claim need only file a timely complaint with the agency's EEO Office and obtain a final action order. See 29 C.F.R. §§ 1614.106 & 1614.110. After such issuance, the plaintiff has the right to appeal the final action order to the EEOC or file a civil action in federal district court. 29 C.F.R. § 1614.110(a). If an individual plaintiff chooses to file a civil action in federal court, he must do so within 90 days of receiving the agency's final action order or the EEOC's final decision on an appeal. 29 C.F.R. § 1614.407.

         Based on the additional information in Plaintiff's Objections, it appears that Plaintiff did not, as stated in his Complaint, file an appeal with the EEOC. Instead, Plaintiff chose to file an action directly with this Court after receiving a final action order from the Department of Justice on October 31, 2016. (Doc. 1-1, p. 1.) Plaintiff filed this action on November 16, 2016, well within 90 days of receiving the final action order. Thus, at least on the face of Plaintiff's Complaint, as well as the additional information provided in the Amended Complaint and Objections, it appears that he has exhausted his administrative remedies.[2]

         Additionally, the only proper defendant under the Rehabilitation Action is the head of the federal department, agency, or unit that Plaintiff contends discriminated against him. 42 U.S.C. § 2000e-16(c); Bell v. Potter, No. CV 110-031, 2010 WL 5376318, at *2 (S.D. Ga. Nov. 10, 2010), report and recommendation adopted, No. CV 110-031, 2010 WL 5388449 (S.D. Ga. Dec. 21, 2010). The Bureau of Prisons is ultimately headed by the Attorney General. 18 U.S.C. § 4041. Mr. Dana Boente currently serves as the Acting Attorney General. Thus, the Court DIRECTS the Clerk of the Court to terminate Ms. Loretta Lynch as a Defendant and SUBSTITUTE Dana Boente, in his Official Capacity as Attorney General of the United States, as the sole Defendant in this case.

         II. Motion to Proceed in Forma Pauperis and Service

         Pursuant to 28 U.S.C. § 1915(a), the Court may authorize the commencement of any lawsuit without prepayment of fees. When assessing whether to grant in forma pauperis status, the Court considers the filing fee, which, in this civil action is $400.00. 28 U.S.C. § 1914. In his Motion for Leave to Proceed in Forma Pauperis, Plaintiff provides sufficient evidence that he cannot afford to pay the filing ...

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