Opinion
5:22-CV-00464-D-RN
01-23-2023
Derrick Allen,Plaintiff, v. Equal Employment Opportunity Commission, et al.,Defendants.
ORDER & MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Derrick Allen wishes to sue the Equal Employment Opportunity Commission and several of its employees for allegedly violating his Eighth and Fourteenth Amendment rights after the EEOC declined to pursue his discriminatory discharge claim against his former employer. Proposed Compl., D.E. 1-1. He also seeks permission to do so without paying the standard filing fee for civil actions. Although the court will not require him to pay the filing fee because he lacks the resources to do so, the undersigned recommends that the court dismiss his suit.
Allen wants to sue the EEOC and its employees under 42 U.S.C. § 1983, but the Defendants are federal actors, so they may not be sued under that statute. And even if Allen had brought his suit under other authority, the Supreme Court has not recognized a private right of action against federal officers in this situation. If Allen wishes to pursue his claim that he was fired on account of his race, the proper target of litigation is his former employer-not the EEOC.
I. Background
In October 2022, Allen filed a charge of discrimination with the EEOC against his former employer, Apex Imports. Charge of Discrimination, D.E. 1-2. In it, he claims that Apex discharged him from his position after a verbal altercation with another employee, who Allen claims owed him money. Id. After overhearing the two arguing, a manager intervened to diffuse the situation and sent Allen home. Id. Two weeks later, Allen was fired. Id. Allen informed the EEOC that he believed his firing was due to his race and age, as he had broken no company policies. Id. After review, the EEOC declined to proceed with its investigation and issued Allen a right to sue letter. EEOC Determination, D.E. 1-3.
Rather than suing Apex, Allen filed a complaint against the EEOC and a handful of its employees in November. Proposed Compl. at 2-3. In his complaint, Allen alleges that he has been wrongfully imprisoned two times and that employers have discriminated against him because of the resulting media coverage. Id. at 5. The complaint is light on details, but Allen alleges that the EEOC violated his Eighth and Fourteenth Amendment rights by failing to proceed with its investigation into Apex. Id. at 6. Proceeding under § 1983, Allen seeks $750,000.
II. IFP Motion
Allen asks the court to allow him to proceed with this action without paying the required filing fee and other costs associated with litigation (colloquially known as proceeding in forma pauperis or IFP). The court may grant his request if he submits an affidavit describing his assets and the court finds that he cannot pay the filing fee. 28 U.S.C. § 1915. In assessing a request to proceed IFP, the court should consider whether the plaintiff can pay the costs associated with litigation “and still be able to provide himself and his dependents with the necessities of life.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotations omitted).
The court has reviewed the application and finds that Allen lacks the resources to pay the costs associated with this litigation. The court thus grants his motion (D.E. 1) and allows him to proceed IFP.
III. Screening Under 28 U.S.C. § 1915
After determining that Allen is entitled to IFP status, the court must analyze the viability of his claims. 28 U.S.C. § 1915(e). The court reviews a complaint to eliminate claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
The court may dismiss a complaint as frivolous because of either legal or factual shortcomings. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “Legally frivolous claims are based on an ‘indisputably meritless legal theory' and include ‘claims of infringement of a legal interest which clearly does not exist.'” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). A complaint is factually frivolous when its factual allegations are “fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
A complaint fails to state a claim upon which relief may be granted if it does not “contain 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)). The Supreme Court has explained that “[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.” Id.
Allen's pro se status relaxes, but does not eliminate, the requirement that his complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).
The court may also dismiss a complaint if it seeks monetary relief from a defendant who is immunized from liability for monetary damages. This immunity can take any number of forms, including-but not limited to-immunity under the Eleventh Amendment, see Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001), or common-law doctrines such as judicial, legislative, and prosecutorial immunity, see Pierson v. Ray, 386 U.S. 547 (1967). Below, the court will screen the viability of Allen's claims under 28 U.S.C. § 1915 to determine whether they may proceed.
Allen's complaint alleges two violations of 42 U.S.C. § 1983. That statute creates civil liability for any person acting under the color of state law who deprives a plaintiff of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. So “[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988); see also Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Allen alleges that the EEOC and its employees violated his Eighth and Fourteenth Amendment rights. Compl. at 4. The Eighth Amendment prohibits “excessive bail[,]” “excessive fines[,]” and “cruel and unusual punishments[.]” U.S. Const. amend. VIII. And the Fourteenth Amendment, like § 1983, only applies to state actors. U.S. Const. amend. XIV. The EEOC is a federal agency that-to the court's knowledge-has never imprisoned Allen. Thus, these deficiencies provide alternate grounds for dismissal to those that follow.
But the EEOC is a federal agency, and its employees are federal actors-they may not be sued under § 1983. See, e.g., Dowe v. Total Action Against Poverty, 145 F.3d 653, 658 (4th Cir. 1998) (“§ 1983 does not apply to federal actors.”) (citing Wheedlin v. Wheeler, 373 U.S. 647 (1963)). Thus, the district court should dismiss Allen's suit.
The Supreme Court has recognized a federal analogue to § 1983 that allows an individual to sue an officer acting under color of federal authority who violates the individual's constitutional rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But even if Allen were to amend his suit, converting it from a § 1983 action to a Bivens action, the result would be the same. Title VII already provides aggrieved individuals a remedy should they feel that the EEOC improperly handled their discrimination charge-a direct suit against their former employer. See 42 U.S.C. § 2000e-5(f)(1); Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam) (“Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or other malfeasance in processing an employment discrimination charge.”). Unsurprisingly, federal courts faced with claims like Allen's have held that a person who is unhappy with the disposition of his EEOC discrimination charge may not sue the agency or its employees under Bivens. See, e.g., Flemings v. U.S. Sec. Assocs., Case No. 18-24861-CIV-SCOLA/MCALILEY, 2020 WL 981183, at *4 (S.D. Fla. Jan. 31, 2020) (collecting cases). Any attempt at amendment to target the federal actors in this case, then, would be futile.
Rather than direct his ire toward the EEOC for declining to move forward with its investigation, Allen should sue Apex itself if he believes his firing was fueled by improper motive.It is Allen's former employer-not the EEOC-that potentially bears liability.
The court takes no position on whether such a filing would be timely. See 42 U.S.C. § 2000e-5(f)(1) (“[W]ithin ninety days after [receiving notice that the EEOC will not proceed with litigation,] a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved[.]”).
IV. Conclusion
Though the court grants Allen's request to proceed IFP (D.E. 1), the court should dismiss his complaint because it seeks to sue federal actors under § 1983. And even if the court were to construe Allen's suit as alleging a Bivens violation, the Supreme Court has not extended Bivens to reach EEOC investigations. If Allen believes that he was wrongfully fired from Apex, he must sue his former employer-not the EEOC.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.