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Lanier v. Sizemore, Inc.

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

September 9, 2019

KEITH LANIER, Plaintiff,
v.
SIZEMORE, INC. Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, in response to this Court's prior Order and Report and Recommendation (see doc. 9)[1], 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)[2], which requires the immediate dismissal of any pro se complaint that fails to state at least one actionable claim.[3] 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.

         ANALYSIS

         To 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. 8(a)(2)).

         The 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)).

         In his 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.[4] Plaintiff brings claims under both the Age Discrimination in Employment Act of 1967 (ADEA) and Title VII.

         Under 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)).

         The Age 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).

         In this 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).[5] 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 deficiencies.

         However, 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.

         As to 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 that:

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).

         In this 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 ...


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