United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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. (Doc. 6.) As it appears that
Plaintiff has exhausted her administrative remedies, the
Court GRANTS her Motions to Proceed in
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.
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 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.
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
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.
Initial Review of Exhaustion of ...