United States District Court, S.D. Georgia, Augusta Division
RONALD A. NURSE, Plaintiff,
TAXSLAYER INC., a/k/a, TAXSLAVER INC., Defendant.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
commenced the above-captioned employment discrimination case
pro se and is proceeding in forma pauperis
(“IFP”). Because he is proceeding IFP,
Plaintiff's amended complaint must be screened to protect
potential defendants. Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984). Pleadings drafted by pro
se litigants must be liberally construed, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), but the Court may
dismiss a complaint, or any part thereof, that is frivolous
or malicious or that fails to state a claim upon which relief
may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i) &
SCREENING OF THE COMPLAINT
all of Plaintiff's factual allegations as true, as the
Court must for purposes of the present screening, the facts
are as follows. On October 17, 2016, Defendant hired
Plaintiff, a “62-year-old, African American male,
” as a temporary seasonal employee. (Doc. no. 1, p. 3.)
White employees would “look at Black people as if they
had two heads and they never seen [sic] Black people
before.” (Id.) Defendant “made Black
people feel like they were ashamed to have them seen on their
property and in the building.” (Id.) Black
people were the lowest paid employees in the company, and
they were not allowed to park their cars “around and
on” the company's parking lot, threatening to have
their cars towed if they did. (Id.) Additionally,
black employees did not receive their pay immediately
following their first pay period but were paid a week later.
(Id. at 3-4.)
November 28, 2016, Jacob, a white employee, asked, “Are
you beating our slave, ” while an unknown white
employee “was violently trashing [sic] Plaintiff by
viciously hitting him with some metal rod whips that were put
together, over Plaintiff's head like he was mimicking the
violent vicious beating of a slave.” (Id. at
4.) The incident was recorded by security cameras.
(Id.) Plaintiff reported the incident to human
resources, but the employees could not be identified.
(Id.) On November 30, 2016, Candy, a white
supervisor, who complained about black women defecating on
toilets, told Plaintiff not to sit next to her and to move.
(Id.) White employees “make funny ominous
faces when they past [sic] Black people.”
December 2, 2016, Will Smith, a white supervisor, blocked
Plaintiff's computer password and reprimanded Plaintiff
in front of the staff for going to “other
websites” after the company's computer system
crashed, even though other employees had done the same thing.
(Id.) As a result of the “extremely horrific
ossified racism . . . Black employees were concerned and
afraid [they] would be attacked” by white employees.
(Id. at 5.)
filed a charge with the United States Equal Employment
Opportunity Commission (“EEOC”). The EEOC issued
a right to sue notice on July 7, 2017, and Plaintiff timely
filed this suit on August 31, 2017. (Doc. no. 1, pp. 7.)
Legal Standard for Screening
amended complaint or any portion thereof may be dismissed if
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, of if it seeks monetary relief
from a defendant who is immune to such relief. See
28 U.S.C. § 1915(e)(2)(B). A claim is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 327
(1989). Moreover, “[f]ailure to state a claim under
§ 1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H & S, Inc., 366
Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim for relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
unadorned, the defendant unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
complaint is insufficient if it “offers ‘labels
and conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a “‘plain
statement' possess[ing] enough heft to ‘sho[w] that
the pleader is entitled to relief.'”
Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P.
the court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, this liberal
construction does not mean that the court has a duty to
re-write the complaint. Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff Fails to State a Claim Based on Age or ...