Opinion
1:23-CV-1326-RP-ML
11-13-2023
YVETTE LOPEZ, Plaintiff, v. PARADIGM TREATMENT TEXAS, Defendant.
THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
MARK LANE UNITED STATES MAGISTRATE JUDGE
The Magistrate Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the court is Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I. Request To Proceed IN FORMA PAUPERIS
The court has reviewed Plaintiff's financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff's request for in forma pauperis status. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Plaintiff is further advised, although Plaintiff has been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, this court has made a § 1915(e) review of the claims made in this complaint and is recommending Plaintiff's claims be dismissed without prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendant should be withheld pending the District Court's review of the recommendations made in this Report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. Standard of Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the court is required by statute to review the complaint. Section 1915(e)(2) provides that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
Pro se complaints are liberally construed in favor of the plaintiff. Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018); Haines v. Kerner, 404 U.S. 519, 20-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
III. Review of the Merits of the Claim
Plaintiff Yvette Lopez purports to sue Paradigm Treatment Texas (“Paradigm”) for employment-related claims. Dkt. 1 (“Complaint”). The Complaint comprises a Pro se Complaint form (Dkt. 1), a Civil Case form (Dkt. 1-2), and a few pages of documents, including screen captures of electronic messages, summaries of Lopez's experience at Paradigm (Dkt. 1-1), and (sealed) documents regarding a Texas Department of Family and Protective Services (“DFPS”) investigation (Dkt. 1-3).
“The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6).” Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). “In determining whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii), courts engage in the same analysis as when ruling on a motion for dismissal under Rule 12(b)(6).” Fierro v. Knight Transp., No. EP-12-CV-00218-DCG, 2012 U.S. Dist. LEXIS 133249, at *21-22 (W.D. Tex. 2012) (citing Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam)). Courts' analysis “turns on the sufficiency of the ‘factual allegations' in the complaint,” Smith v. Bank of Am., N.A., 615 Fed.Appx. 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) (per curiam)), as neither the IFP statute nor the Federal Rules of Civil Procedure “countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson, 574 U.S. at 11.
Pro se complaints receive a “liberal construction.” Carlucci, 884 F.3d 538 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)), but “[e]ven so, ‘mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'” Brown v. Tarrant Cty., 985 F.3d 489, 494 (5th Cir. 2021) (quoting United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)).
The Complaint and documents Lopez has filed indicate claims for: wrongful termination, defamation of character, violation of the Texas Family Code, violation of the Title VII of the Civil Rights Act of 1964, and violation of the Americans with Disabilities Act. Dkt. 5 (Response to Order for More Definite Statement); Dkt. 7 (Supplement to Complaint) & Dkt. 1 (Complaint). The undersigned arrived at these claims by construing together liberally Lopez's Complaint, Civil Cover Sheet, Supplement to Complaint, including the EEOC right to sue letter and Charge of Discrimination, and her Response to Order for More Definite Statement. United States ex rel. Willard v. Humana Health Plan of Tex., 336 F.3d 375, 379 (5th Cir. 2003) (“In deciding a motion to dismiss the court may consider documents attached to or incorporated in the complaint.”).
Before bringing a claim against an employer under Title VII, the ADA, or the ADEA, a plaintiff must first file a charge with the EEOC. If that charge is denied by the EEOC, the EEOC issues a right-to-sue letter, after which plaintiff has 90 days-or 300 days in a deferral state-to file suit. See Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 n.7 (5th Cir. 2006). A plaintiff must exhaust the administrative process and receive her statutory notice of right-to-sue before filing a civil action in federal court. Taylor v. Books A Million, 296 F.3d 376, 378-79 (5th Cir. 2002). Failure to file a charge with the EEOC and exhaust administrative remedies before filing suit will result in dismissal. Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996).
The Complaint provides minimal facts to support Lopez's claims. See generally Dkt. 1. The Civil Cover Sheet is also not instructive; for example, despite being the plaintiff in this action, Lopez indicated that the U.S. Government is the plaintiff. Dkt. 1-2. Accordingly, the undersigned ordered Lopez to file a more definite statement and an updated Civil Cover Sheet. Dkt. 5. After the undersigned issued his order, Lopez submitted additional documentation regarding the DFPS investigation and Paradigm's stated reasons for terminating Lopez's employment. Dkt. 7 (“Supplement to Complaint”). Lopez also submitted a Response to Order for More Definite Statement (“Response”) (Dkt. 8).
The entirety of her Response was a copy of the undersigned's order with three handwritten notations:
- “Wrongful termination, defamation of character, Texas Family Code 261.107” [next to “(1) What acts the Defendant did that violated Plaintiff's rights”]
- “2/14/23-4/6/23” [“(3) The dates of those violations”]
- “open to negotiate” [“(4) What relief Plaintiff wants from the Defendant”]Dkt. 8 at 2.
Lopez included a scan of the EEOC-issued right to sue letter in her Supplement to Complaint. Dkt. 7 at 2-4. The Charge of Discrimination form Lopez submitted to the EEOC (and Texas Workforce Commission) indicates that Lopez believes she was discriminated against on the basis of a disability in violation of the ADA. Id. at 4. In the charge, she alleges that she was on provisional status as newly hired counselor at Paradigm. Id. at 3. She reports that her provisional status required that she be supervised while her background check was pending. Id. She states that she requested a medical accommodation, but she does not state what the accommodation was. Id. She goes on to say that Paradigm did not participate in an “interactive process” and that she was not given an opportunity to demonstrate that she could perform her duties with an accommodation. Id.
The Supplement to Complaint also includes information that Lopez reported to Paradigm that she did not have a criminal record before she admitted that she in fact did. Dkt. 7 at 7. She states that she was working with a state agency and an attorney to resolve the issue of criminal history. Id.
Each of Lopez's causes of action should be dismissed for failure to state a claim. The factually flimsy Complaint alleges no specific facts to support claims for wrongful termination and defamation of character. Lopez has not stated a claim under Texas Family Code § 206.107 because it is a criminal statute.
The local county attorney is responsible § 206.107 prosecutions; there is no private right of action. TEX. FAM. CODE § 206.107(c). Attorney's fees may be awarded by a court and a civil penalty may be pursued by the Texas attorney general. Id. at (d) & (e).
Lopez's Title VII and ADA claims are procedurally flawed. Both Title VII and the ADA claims require that a plaintiff exhaust administrative remedies and receive a right-to-sue letter.Lopez received a right to sue letter related to an ADA claim. However, Lopez's pleadings, including the attached EEOC Charge of Discrimination form, lack specific allegations of discrimination based on disability. Accordingly, Lopez's pleadings fail to state a plausible claim for violation of the ADA under either a wrongful termination or failure-to-accommodate theory of liability. See Hale, 642 F.3d at 500 (claim failed because pleadings “did not contain facts regarding the impact of [plaintiff's] ailments on his ability to perform major life activities”).
A timely EEOC charge is a statutory prerequisite, see Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002), and the scope of a subsequent judicial complaint is limited to the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge.” Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970).
To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that he has a disability, that he is qualified for the job, and that he suffered an adverse employment decision because of his disability. Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092-93 (5th Cir. 1996); see also Pinkerton v. Spellings, 529 F.3d 513, 517-19 (5th Cir. 2008) (clarifying the ADA's causation standard). To prevail on a failure-to-accommodate claim, a plaintiff must show (1) the plaintiff is a “qualified individual with a disability;” (2) the disability and its consequential limitations were known by the plaintiff's employer; and (3) the employer failed to make reasonable accommodations for such known limitations. Feist v. La. Dep't of Justice, 730 F.3d 450, 452 (5th Cir. 2013). On both counts, Lopez's claim fails at the outset because she has not properly alleged that she has a disability. The ADA defines “disability,” in relevant part, as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).
Lopez's Title VII claim must be dismissed because it appears she has not been issued a right-to-sue letter regarding her claim for discrimination based on race, color, sex (gender, pregnancy, or sexual harassment), religion, or national origin. Moreover, her Complaint and supporting documents allege no facts related to Title VII-type discrimination.
The undersigned instructed Lopez to attach the right-to-sue letter associated with her Title VII claim, but the letter she provided pertains to an ADA claim. Dkt. 5.
See, e.g., Hall v. Ouachita Parish Corr. Center, 2008 U.S. Dist. LEXIS 20781, 2008 WL 724230, at *2 (W.D. La. Mar. 17, 2008) (dismissing Title VII claim for failure to exhaust administrative remedies where plaintiff did not offer evidence of a right-to-sue letter and did not allege that he had received such a letter); Shabazz v. Texas Youth Com'n, 300 F.Supp.2d 467, 471 (N.D. Tex. 2003) (same).
Even liberally construed, Lopez's allegations as to the “critical issues” of establishing an adverse employment action taken and its discriminatory causes are insufficient under Rule 12(b)(6). Brown, 985 F.3d at 494. With regard to her Title VII claim, her Complaint and related pleadings are procedurally flawed. She also fails to plead facts plausibly giving rise to defamation and her undifferentiated workplace discrimination claims. Lastly, her Texas Family Code criminal claim is inappropriate. Accordingly, her claims should be dismissed pursuant to 28 U.S.C. § 1915(e).
IV. Order and Recommendations
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2).
The Magistrate Court RECOMMENDS the District Court DISMISS WITHOUT PREJUDICE Plaintiff's cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Lopez also filed a Motion for Entry of a Confidentiality and Protective Order (Dkt. 10).Lopez identifies no information or documents that she asserts should be kept confidential. Accordingly, the undersigned RECOMMENDS the District Court DISMISS as MOOT Lopez's Motion (Dkt. 10) should the District Court decline to adopt the undersigned's recommendation to dismiss this action.
Lopez previously filed a Motion for Confidentiality and Protective Order (Dkt. 3), requesting documents related to a DFPS investigation be kept confidential. Dkt. 3. The Clerk's Office sealed documents that contained personally identifying information about minors, and the undersigned mooted the Motion. Text Order, Oct. 31, 2023.
The referral of this case to the Magistrate Court should now be canceled.
V. Warning
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).