United States District Court, S.D. Georgia, Statesboro Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
in response to this Court's prior Order and Report and
Recommendation (see doc. 9), has filed an amended complaint
alleging employment discrimination. Doc. 12. As the Court has
granted his request to pursue his case in forma
pauperis (IFP), doc. 6, it now screens the allegations
of the amended complaint pursuant to 28 U.S.C. §
1915(e)(2), which requires the immediate dismissal of
any pro se complaint that fails to state at least one
actionable claim. Because plaintiff's complaint is still
insufficient, the Court will allow him one final
opportunity to amend it. Plaintiff is
DIRECTED to amend the complaint a final time
to address the deficiencies noted herein within 30 days.
Failure to comply with this order will result in a
recommendation of dismissal.
state a claim upon which relief can be granted, the
allegations of 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.
Court holds a pro se litigant's pleadings to a
more lenient standard than those drafted by an attorney.
See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Erickson v. Pardus, 551 U.S. 89, 94 (2007). They are
to be liberally construed, see Estelle v. Gamble,
429 U.S. 97, 106 (1976), but the Court may still 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) &
(ii). 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)).
initial complaint, Plaintiff states that he was terminated
from his position with Defendant Sizemore, Inc. after a
patient he was guarding at Meadows Regional Medical Center
escaped (and was shortly thereafter apprehended by law
enforcement and returned). Doc. 1 at 7-8. Plaintiff had been
employed with Defendant Sizemore, Inc. for nine years.
Id. at 9. He states that, “I feel my rights
was violation of the way other officer of younger age, race,
color and gender was treating in similar situation.”
Id. at 8. In his amended complaint, he provides
additional information, specifically alleging that a
“young white” female officer had had a patient
under her guard escape, and that the female officer was
permitted to keep her job after that incident, whereas
Plaintiff was terminated after the patient he was guarding
escaped. Doc. 12 at 5. Plaintiff brings claims under both the Age
Discrimination in Employment Act of 1967 (ADEA) and Title
Title VII, employers are not allowed to discharge an employee
or otherwise discriminate against him with respect to his
employment because of his race, color, religion, sex, or
national origin. See 42 U.S.C. § 2000e-2.
“To establish a prima facie Title VII disparate
treatment claim, a ‘plaintiff must show that [he] (1)
was 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 [his]
employer treated similarly situated employees outside of
[his] class more favorably.'” Clark v. S.
Broward Hosp. Dist., 601 Fed.Appx. 886, 891 (11th Cir.
2015) (citing Cuddeback v. Fla. Bd. of Educ., 381
F.3d 1230, 1235 (11th Cir. 2004)).
Discrimination in Employment Act of 1967 (ADEA) makes it
unlawful for an employer to take adverse action against an
employee “because of such individual's age.”
29 U.S.C. § 623(a). “In order to make out a
prima facie case for an ADEA violation, the
plaintiff may show that [he] (1) was a member of the
protected age group, (2) was subject to adverse employment
action, (3) was qualified to do the job, and (4) was replaced
by a younger individual, or that [his] employer treated
employees who were not members of [his] protected class more
favorably under similar circumstances.” Washington
v. United Parcel Serv., Inc., 567 Fed.Appx. 749, 751
(11th Cir. 2014) (citations omitted).
case, plaintiff has failed to allege that he is a member of
the protected class for purposes of his Title VII claim, or
that he was qualified for the position he was in for purposes
of both his claims (in fact, his complaint which alleges that
he allowed a prisoner he was guarding to escape, suggests the
opposite). However, the Court acknowledges that
plaintiff could allege his qualification, notwithstanding his
deficient performance on that occasion. See, e.g. Powell
v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978)
(“[C]ompetence sufficient to make out a prima facie
case of discrimination was never intended to encompass proof
of superiority or flawless performance.”). Accordingly,
the Court will, therefore, GRANT plaintiff a
single opportunity to amend his complaint to correct these
this does not end the inquiry. Defendants have, by special
appearance, brought two Motions to Dismiss. See Docs. 7 and
14. In the First Motion to Dismiss, they argue
Plaintiff's Complaint should be dismissed for failure to
properly serve the Complaint within 90 days of the filing as
required by Fed. Civ. R. P. 4(m). See doc. 7 at 2; see also
doc. 14-1 at 2. They also seek to dismiss Plaintiff's
Complaint for failure to state a plausible claim. See doc.
14. Because the Court is granting plaintiff a motion to
amend, defendant's motion to dismiss for failure to state
a claim should be DISMISSED AS MOOT.
timely service, defendants cite to Rule 4(m) of the Federal
Rules of Civil Procedure to support their argument that
Plaintiff has failed to timely serve them. Rule 4(m) provides
If a defendant is not served within 90 days after the
complaint is filed, the court--on motion or on its own after
notice to the plaintiff-must dismiss the action without
prejudice against that defendant or order that service be
made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).
case, defendants are correct that the ninety days outlined in
Rule 4 have long passed. However, plaintiff has been granted
leave to proceed in forma pauperis in this case,
see doc. 6, and therefore “[t]he officers of
the court shall issue and serve all process, and perform all
duties in such cases.” 28 U.S.C. 1915(d); see
also Fed. R. Civ. P. 4(c)(3) (“At the
plaintiff's request, the court may order that service be
made by a United States marshal or deputy marshal or by a
person specially appointed by the court. The ...