United States District Court, S.D. Georgia, Brunswick Division
ANTHONY G. WORTHY, Plaintiff,
DYLAN SELPH; MIKE BLOCK; and WOODY FOLSOM AUTOMOTIVES, Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
2, 2018, Plaintiff filed this action, pro se,
pursuant to the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.,
the Genetic Information Nondiscrimination Act of 2008
(“GINA”), 42 U.S.C. § 2000ff et
seq., and the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12111 et seq.,
alleging employment discrimination and retaliation against
him by Defendants. (Doc. 1.) Concurrent with his Complaint,
Plaintiff filed a Motion to Proceed in Forma
Pauperis. (Doc. 2.) As set forth below, because it
appears that Plaintiff has exhausted his administrative
remedies, the Court GRANTS Plaintiff's
Motion to Proceed in Forma Pauperis and
ORDERS service of his Complaint. The Court
DIRECTS the United States Marshal to serve
Defendant Woody Folsom Automotives with a copy of
Plaintiff's Complaint and this Order. However, I
RECOMMEND that the Court
DISMISS Plaintiff's claims against
Defendants Selph and Block as well as Plaintiff's
putative ADEA, GINA, and ADA claims for failure to state a
Complaint, Plaintiff states Defendants discriminated against
him in violation of Title VII, the ADEA, the ADA, and GINA.
(Doc. 1, pp. 4-5.) Plaintiff asserts he was subjected to
homophobic and racial slurs and discriminatorily assigned
hard manual labor. (Id. at p. 2.) Plaintiff alleges
that Defendants forced him to sweep an entire car lot, rather
than using a blower, which caused him to pass out and be
hospitalized. (Id. at pp. 2, 8.) Defendants Block
and Selph, also employees of Defendant Woody Folsom
Automotives, harassed Plaintiff about his inability to pay
his medical bills. When Plaintiff complained about the
hostile work environment to a manager, Defendant Woody Folsom
Automotives terminated Plaintiff's employment, stating
“We've found out that you are filing charges, now
you got something to file.” (Id. at pp. 8-9.)
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 his assets and shows an inability to pay the filing
fee and also includes a statement of the nature of the action
which shows that he 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
sets forth facts that arguably state plausible wrongful
termination, hostile work environment, and retaliation claims
arising under Title VII. See Clark v. S. Broward Hosp.
Dist., 601 Fed.Appx. 886, 891 (11th Cir. 2015) (To
establish a prima facie disparate treatment claim a plaintiff
must show that he: (1) is a member of a protected class; (2)
was qualified for the job; (3) suffered an adverse employment
action; and (4) was replaced by someone outside the protected
class or that the employer treated similarly situated
employees outside of his class more favorably. (citation
omitted)); Adams v. Austal, U.S.A., L.L.C., 754 F.3d
1240, 1248-49 (11th Cir. 2014) (To establish a hostile work
environment claim a plaintiff must prove that: (1) he is a
member of a protected class; (2) he was subjected to racial
harassment; (3) the harassment was based on his race; (4) the
harassment was sufficiently severe or pervasive to alter the
conditions of the his employment and create an abusive
working environment; and (5) the employer is either directly
or vicariously liable. (citation omitted)); Kidd v. Mando
Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013) (To
state a prima facie case of retaliation, a plaintiff must
show that: (1) he engaged in statutorily protected activity;
(2) he suffered materially adverse action; and (3) there was
a causal connection between the protected activity and the
adverse action. (citation omitted)).
however, fails to allege any facts that would implicate the
ADEA, the ADA, or GINA. For example, other than checking a
conclusory box, Plaintiff fails to include his age or assert
that Defendants discriminated against him because of his age.
(Doc. 1, pp. 2, 5, 8-9.) Likewise, Plaintiff fails to state
any facts relating to discrimination under the ADA or GINA,
to wit he does not discuss any disability or use of his
genetic information. Accordingly, the Court should
DISMISS all of Plaintiff's ADEA, ADA,
and GINA claims for failure to state a claim upon which
relief can be granted. See Anderson v. Fulton Cty.
Gov't, 485 Fed.Appx. 394 (11th Cir. 2012) (dismissal
proper where plaintiff failed to describe any specific
allegations against defendant). Additionally, the Court
should DISMISS all of Plaintiff's claims
against Defendants Selph and Block because individual
employees are not subject to liability under Title VII.
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”). Thus, Plaintiff's Title VII claims may only
proceed against Defendant Woody Folsom Automotives.
Initial Review of Exhaustion of ...