United States District Court, S.D. Georgia, Brunswick Division
CARY G. MOSELEY, JR., Plaintiff,
DANA BOENTE, in his official capacity as Attorney General of the United States, Defendant.
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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
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.
Initial Review of Exhaustion of Administrative
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)).
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). 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.
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
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.
Motion to Proceed in Forma Pauperis and
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