United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
December 12, 2017, Plaintiff filed this action, pro
se, pursuant to 42 U.S.C. § 2000e et seq.
(“Title VII”), alleging employment discrimination
against her by Defendants. (Doc. 1.) Concurrent with her
Complaint, Plaintiff filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) Prior to ruling on Plaintiff's
Motion, the Court advised Plaintiff that she could not
maintain a Title VII action against individually named
defendants and directed her to file an amended complaint
against a proper employer defendant and to include additional
information regarding her pursuit of administrative remedies.
(Doc. 5.) Plaintiff then filed an amended complaint naming a
cognizable defendant. (Doc. 6.)
forth below, Plaintiff has now named a cognizable defendant,
and she has apparently exhausted her administrative remedies,
(doc. 5, pp. 5-6); thus, the Court GRANTS
Plaintiff's Motion to Proceed in Forma Pauperis,
and her federal claims against Defendant King & Prince
Seafood may proceed. However, I RECOMMEND
that the Court DISMISS Plaintiff's
federal claims against Defendants Will Frazier, Mrs. Linda,
Tawana Hardee, Brittany, Mrs. Carolyn, and Michael Arrinston
for failure to state a claim and that the Court
DISMISS without prejudice Plaintiff's
state and local law claims against all
seeks to bring this action in forma pauperis. Under
28 U.S.C. § 1915(a)(1), the Court may authorize the
filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement
of all of her assets and shows an inability to pay the filing
fee and also includes a statement of the nature of the action
which shows that she is entitled to redress. Even if the
plaintiff proves indigence, the Court must dismiss the action
if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §
1915(e)(2)(B)(i)-(ii); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002)
(non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v.
Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2
(N.D.Ga. May 5, 2014) (frivolity review of indigent
non-prisoner plaintiff's complaint).
reviewing a complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed.R.Civ.P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678
(11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. 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 . . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Plaintiff's Amended Complaint
original Complaint, Plaintiff asserted various employment
discrimination claims only against individual
co-workers. (Docs. 1, 1-1.) The Court
advised Plaintiff that she could not state a claim against
individually named defendants under Title VII, the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.,
or the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12111 et seq.
(Doc. 5.) The Court instructed Plaintiff to amend,
(id.), and in her Amended Complaint, Plaintiff names
King & Prince Seafood as Defendant, as well as all of the
individual Defendants named in the original Complaint. (Doc.
6.) Plaintiff also alleges Defendants violated Georgia law,
as well as local law, but does not identify which state and
local laws Defendants allegedly violated or what conduct
resulted in these alleged violations. (Id. at p. 3;
Plaintiff should now be well aware, she may not bring federal
employment law discrimination claims against her co-workers
in their individual capacities. Individual employees are not
subject to liability under the federal discrimination laws
Plaintiff claims Defendants violated. Albra v. Advan,
Inc., 490 F.3d 826, 830 (11th Cir. 2007) (holding
“individual liability is precluded for violations of
the ADA's employment discrimination provision”);
Dearth v. Collins¸441 F.3d 931, 933 (11th Cir.
2006) (holding “relief under Title VII is available
against only the employer and not against individual
employees whose actions would constitute a violation of the
Act”); Smith v. Lomax, 45 F.3d 402, 403 n.4
(11th Cir. 1995) (holding individual employees “cannot
be held liable under the ADEA”).
the Court should dismiss Plaintiff's federal
discrimination claims against Defendants Will Frazier, Mrs.
Linda, Tawana Hardee, Brittany, Mrs. Carolyn, and Michael
Arrinston, the individual co-worker Defendants.
Plaintiff's Title VII, ADEA, and ADA claims against
Defendant King & Prince Seafood shall remain pending
before the Court.
Supplemental Jurisdiction over Plaintiff's State and
Local Law Claims
alleges Defendants violated state and local laws but does not
specify which state or local law claims she intends to bring
in this action. (Docs. 6, 6-1.) Likewise, Plaintiff fails to
identify what conduct by which Defendant she alleges violated
state and local law. (Id.) At best, Plaintiff
alleges Defendant Brittany committed assault and battery by
trying to touch her eye lids and by bumping her as they
walked together. (Doc. 6-1, p. 1.) Plaintiff also makes
allegations that she bumped Defendant Tawana Hardee,
(id. at p. 3), but on the whole, Plaintiff's
state and local law allegations are utterly unclear. What is
clear, however, is that the gravamen of Plaintiff's