Opinion
2:01-CV-0362
October 26, 2001
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff RAY HEREDIA, acting pro se, filed suit pursuant to Title VII of the Civil Rights Act of 1964 complaining against the above-named defendant and has been granted permission to proceed in forma pauperis. On October 2, 2001, plaintiff was given twenty days in which to supplement his complaint by submitting a copy of plaintiff's "Right to Sue" notice issued by the EEOC. Plaintiff responded on October 16, 2001, by attaching to his Answer to Interrogatories a copy of a May 14, 2001, letter from the Texas Commission on Human Rights (TCHR). The letter acknowledged that 180 days had passed since plaintiff filed a complaint with the TCHR and stated that, if plaintiff made a written request, he would be provided a Notice of Right to File a Civil Action in State Court from the TCHR and a Notice of Right to Sue in Federal Court from the U.S. Equal Employment Opportunity Commission. There is no indication plaintiff ever requested or received his Notice of Right to Sue in Federal Court from the U.S. Equal Employment Opportunity Commission.
The deadline has expired, and plaintiff has submitted no further supplementation.
JUDICIAL REVIEW
Title 28, United States Code, section 1915(e)(2) provides:
[T]he court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) 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). Thus, the very statute allowing plaintiff to proceed as a pauper also requires the Court to screen a pauper's complaint and dismiss it without service of process at any time the Court makes a determination of frivolousness, etc.
This approach applying section 1915(e)(2) to non-prisoner pauper cases is also taken by the First Circuit, see, Mazzaglia v. New Hampshire, No. 99-1997, 2000 WL 979971 (1st Cir. June 23, 2000)([i]f plaintiff was a prisoner, then 28 U.S.C. § 1915 A would have governed; if he was not, then § 1915(e)(2)(B) would have applied."); the Fourth Circuit, see, McLean v. Caldwell County Sheriff's Department, No. 99-2005, 1999 WL 796420 (4th Cir. Oct. 16, 1999); the Seventh Circuit, see, Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir. 1997)("it is true that the PLRA substantially changed 1915, not only for cases brought by prisoners, but in some respects for all indigent litigants. Under the amended version of the statute, § 1915(e)(2) requires the court to dismiss if it determines (1) that the allegation of poverty is untrue, (2) that the action or appeal is frivolous or malicious, (3) that the action fails to state a claim upon which relief may be granted, or (4) that the action seeks monetary relief against a defendant who is immune from such relief."); and the Ninth Circuit, see, Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) (dismissal of § 1983 action for failure to state a claim by former detainee against various members of the state law enforcement community affirmed).
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"The plain language of 42 U.S.C. § 2000e-5(f)(1) requires, as a condition precedent to litigating in federal court, a right to sue letter issued by the EEOC." Vielma v. Eureka Co., 218 F.3d 458, 466(5th Cir. 2000) (quoting Black v. Brown Univ., 555 F. Supp. 880, 884 n. 8 (D.R.I. 1983)).Although expressly required to do so, plaintiff has utterly failed to show, or even plead, that he possesses the requisite right to sue letter from the EEOC; and his attempt to satisfy the Court's inquiry by production of the letter from the TCHR indicates plaintiff does not have the necessary letter. Plaintiff has failed to satisfy the statutory prerequisites for a Title VII suit. Consequently, his claims have no arguable basis in law and are frivolous.
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, section 1915(e)(2), it is ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff RAY HEREDIA be DISMISSED WITHOUT PREJUDICE AS FRIVOLOUS.
All pending motions are DENIED.
IT IS SO ORDERED.