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Teed v. Solutions-Amtrust

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

June 14, 2018

SHEILA TEED, Plaintiff,
v.
ZERO WASTE SOLUTIONS-AMTRUST; and LORETTA MOORE, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's Amended Complaint and Motions to Proceed in Forma Pauperis. (Docs. 2, 6, 7.) On March 2, 2018, Plaintiff filed this action, pro se, pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq. (Doc. 1.) The Court deferred ruling on Plaintiff's first in forma pauperis Motion, advised Plaintiff of deficiencies in her original Complaint, and directed her to amend. (Doc. 5.) Plaintiff has now filed an Amended Complaint.[1] (Doc. 6.) As it appears that Plaintiff has exhausted her administrative remedies, the Court GRANTS her Motions to Proceed in Forma Pauperis.

         The Court ORDERS service and DIRECTS the United States Marshal to serve Defendant Zero Waste Solutions-Amtrust with a copy of Plaintiff's Complaint, Supplemental Complaint, and this Order. However, I RECOMMEND that the Court DISMISS Plaintiff's claims against Defendant Moore for failure to state a claim.

         STANDARD OF REVIEW

         Plaintiff 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).

         When 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. 2001)).

         Whether 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)).

         In its 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 without counsel.”).

         DISCUSSION

         I. Plaintiff's Amended Complaint

         In her original Complaint, Plaintiff asserted ADEA and ADA employment discrimination claims against Defendants. (Doc. 1.) The Court advised Plaintiff that she could not state a claim against individually named Defendant Moore under either the ADEA or ADA. (Doc. 5.) The Court also advised Plaintiff that her Complaint was missing critical facts to state plausible discrimination claims under these statutes, such as the nature of her disability and age of her replacement, and instructed Plaintiff to amend. (Id.) In her response, Plaintiff provides enough factual detail for her Complaint to be served, namely the nature of her disability and a letter from the EEOC noting that her intake form raised issues under the ADEA and ADA.

         However, as the Court previously advised Plaintiff, she may not bring federal employment law discrimination claims against Defendant Moore. Employees or claims adjustors such as Defendant Moore are not subject to liability under the ADEA or ADA. 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”); Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995) (holding individual employees “cannot be held liable under the ADEA”).

         Accordingly, the Court should DISMISS Plaintiff's federal discrimination claims against Defendant Moore. As explained below, Plaintiff's ADEA and ADA claims against Defendant Zero Waste Solutions-Amtrust shall remain pending before the Court.

         II. Initial Review of Exhaustion of ...


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