United States District Court, S.D. Georgia, Augusta Division
K. EPPS, UNITED STATES MAGISTRATE JUDGE
commenced the above-captioned case pro se and is
proceeding in forma pauperis (“IFP”).
Because he is proceeding IFP, Plaintiff's complaint must
be screened to protect potential Defendants. Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Pleadings
drafted by pro se litigants must be liberally
construed, Haines v. Kerner, 404 U.S. 519, 520-21
(1972), but the Court may 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).
SCREENING OF THE COMPLAINT
names FPL Foods, LLC (“FPL”) as the only
Defendant. (Doc. no. 1, pp. 1-2.) Taking all of
Plaintiff's factual allegations as true, as the Court
must for purposes of the present screening, the facts are as
began working for FPL as an air injector in May, 2018,
through Express Professional Staffing. (Doc. no. 1-1, p. 1.)
Shortly after beginning work for FPL, Plaintiff developed a
chronic cough, eye irritations, eye infections, nausea,
diarrhea, dizziness, light headedness, and shortness of
breath. (Id.) On August 7, 2018, an OSHA
representative interviewed Plaintiff, and Plaintiff told the
interviewer he was having upper respiratory problems, which
did not begin until after Plaintiff started working for FPL.
(Id.) The problems occurred because of acidified
sodium chlorite at FPL. (Id.) A few days after the
interview, a nurse contacted Plaintiff to examine him.
(Id.) Plaintiff told the nurse the same thing as the
months after Plaintiff began working at FPL, Plaintiff began
working next to an acidic sodium chlorite shower, causing his
symptoms to worsen. (Id.) Plaintiff worked so close
to the shower that after working his clothes were saturated
in the chemical. (Id.) Plaintiff asked his
supervisor for a respirator or other proper equipment daily,
but Plaintiff never received anything. (Id.)
Plaintiff attempted to get treatment from his primary care
physician, but treatment was unsuccessful. (Id.)
Plaintiff notified his supervisor and FPL of his symptoms on
numerous occasions before June 25, 2019. (Id.) On
June 25, 2019, Plaintiff spoke with Will Blythe, who had
Plaintiff write an incident report about the exposure to the
chemicals. (Id.) Plaintiff was later diagnosed with
acute asthma symptoms. (Id.)
July 2, 2019 to July 9, 2019, Plaintiff missed work to have
further tests done. (Id.) He was not scheduled to go
back to work until July 10, 2019, but on July 9, 2019,
Plaintiff went to work to discuss a temporary leave of
absence until his body recovered because he was not
responding to treatment. (Id.) Plaintiff went to the
human resources office at FPL and gave Jessica Bokknight a
letter stating he would like to take a temporary leave of
absence until he was medically cleared to return to work.
(Id.) Ms. Bokknight asked Plaintiff to clarify what
he was saying because she thought he was asking to resign.
(Id.) Plaintiff corrected her and stated he only
wanted a leave to make sure his cleared medically.
(Id.) Ms. Bokknight then went into Mr. Blyth's
office and came out with a separation of employment agreement
with Plaintiff's name on it. (Id.) Security
escorted Plaintiff out of the office before he could discuss
the separation agreement more. (Id.) For relief,
Plaintiff requests unspecified compensatory damages.
(Id. at 7.)
construing Plaintiff's allegations in his favor and
granting him the benefit of all reasonable inferences to be
derived from the facts alleged, the Court finds that
Plaintiff has arguably stated viable claims against FPL under
the Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2611-2619, and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112.
Accordingly, process shall issue as to FPL.
IS HEREBY ORDERED that service of process shall be
effected on Defendant FPL Foods, LLC. The United States
Marshal shall mail a copy of the complaint, (doc. no. 1), and
this Order by first-class mail and request that Defendant
waive formal service of the summons. Fed.R.Civ.P. 4(d).
Individual defendants have a duty to avoid unnecessary costs
of serving the summons, and if a defendant fails to comply
with the request for waiver, the defendant must bear the
costs of personal service unless good cause can be shown for
failure to return the waiver. Fed.R.Civ.P. 4(d)(2). A
defendant whose return of the waiver is timely does not have
to answer the complaint until sixty days after the date the
Marshal mails the request for waiver. Fed.R.Civ.P. 4(d)(3).
However, service must be effected within ninety days of the
date of this Order, and the failure to do so may result in
the dismissal of any unserved defendant or the entire case.
Fed.R.Civ.P. 4(m). Plaintiff is responsible for providing
sufficient information for the Marshal to identify and locate
Defendant to effect service.
IS FURTHER ORDERED Plaintiff shall serve upon
Defendant, or upon their defense attorney(s) if appearance
has been entered by counsel, a copy of every further pleading
or other document submitted to the Court. Plaintiff shall
include with the papers to be filed a certificate stating the
date a true and correct copy of any document was mailed to
the defendant or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1.
Every pleading shall contain a caption setting forth the name
of the court, the title of the action, and the file number.
Fed.R.Civ.P. 10(a). Any paper received by a District Judge or
Magistrate Judge that has not been properly filed with the
Clerk of Court or that fails to include a caption or
certificate of service will be returned.
Plaintiff's duty to cooperate fully in any discovery that
may be initiated by the defendants. Upon being given at least
five days' notice of the scheduled deposition date,
Plaintiff shall appear and permit his deposition to be taken
and shall answer, under oath and solemn affirmation, any
question that seeks information relevant to the subject
matter of the pending action. Failing to answer questions at
the deposition or giving evasive or incomplete responses to
questions will not be tolerated and may subject Plaintiff to
severe sanctions, including dismissal of this case.
The defendant shall ensure Plaintiff's deposition and any
other depositions in the case are taken within the
140-day discovery period allowed by this Court's
this action is pending, Plaintiff shall immediately inform
this Court and opposing counsel of any change of address.