Opinion
Case No. 11-CV-941-JPS.
October 25, 2011
ORDER
On October 7, 2011, pro se plaintiff Clara Kittrell ("Kittrell") filed a complaint against her former employer, the City of Milwaukee (the "City"), alleging that she was subjected to harassment in retaliation for filing with the Equal Employment Opportunity Commission ("EEOC") an earlier charge of discrimination against the City. (Docket #1). It appears that Kittrell has sued the City under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. as she has submitted a right-to-sue letter from the EEOC along with her complaint. Accompanying Kittrell's complaint is a motion for leave to proceed in forma pauperis. (Docket #2).
Kittrell's complaint also alludes to several potential tort claims, including defamation and invasion of privacy. As these claims appear to be underdeveloped, the court focuses its screening order solely on Kittrell's Title VII claim.
Before the court can allow the plaintiff to proceed in forma pauperis, the court is obligated to determine that the plaintiff is unable to pay the $350.00 filing fee and that her case: (1) is not frivolous or malicious; (2) does not fail to state a claim upon which relief may be granted; and (3) does not seek monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Congress' intent in enacting the federal in forma pauperis statute was "to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to pay or secure the costs" of litigation. Adkins v. E.I. DuPont de Nemours Co., 335 U.S. 331, 342 (1948). "At the same time that it sought to lower judicial access barriers to the indigent, however, Congress recognized that 'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). In response to this concern, Congress provided courts with the authority to dismiss an in forma pauperis complaint if satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(e). Moreover, a complaint should be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle her to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
1. Title VII Retaliation Claim
Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on "race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a), and its antiretaliation provision forbids discrimination against an employee or job applicant who has "made a charge, testified, assisted, or participated in" a Title VII proceeding or investigation, § 2000e-3(a). It appears that Kittrell brings her claim under this latter provision, though she does not elaborate on the substance of her earlier charge of discrimination under § 2000e-2(a). To prevail on a Title VII retaliation claim, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Accepting that Kittrell did indeed file a charge of discrimination with the EEOC, her allegations of retaliation are plausible, albeit slightly unusual. For instance, Kittrell alleges that in retaliation for her filing a charge of discrimination with the EEOC and in an effort to force her resignation, her employer told coworkers and the police — no less — that she was flushing paper towels down the toilet, leading to an overflowing of toilets in the building. (Compl. at 3). Kittrell also asserts that the defendant encouraged coworkers to post "very brutal signs geared at embarrassing me" including one with a picture of a "big, black bull that referred to [Kittrell] as a 'Poopatraitor.'" ( Id.). Additionally, Kittrell alleges that the defendant had her questioned at work regarding the toilet overflowing incident, which humiliated her and caused her to resign from her position. ( Id. at 4). Viewing her allegations in a light most favorable to Kittrell and resolving all doubts in her favor, it appears that Kittrell has stated a claim upon which relief may be granted. Moreover, the court does not find that her claims are frivolous or malicious.
2. Indigence
3. Motion to Appoint Counsel
Adkins v. E.I. DuPont de Nemours Co. 335 U.S. 331339in forma pauperis.28 U.S.C. § 1915Pruitt v. Mote503 F.3d 647653Lutrrell v. Nickel 129 F.3d 933936Zarnes v. Rhodes 64 F.3d 285288 Pruitt503 F.3d at 654Zarnes64 F.3d at 288Pruitt503 F.3d at 654-55 Farmer v. Hass990 F.2d 319322
Accordingly,
IT IS ORDERED that plaintiff's motion for leave to proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff's motion requesting trial by jury (Docket #3) be and the same is hereby DENIED without prejudice;
IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel (Docket #4) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the summons and complaint upon defendant City of Milwaukee pursuant to Fed.R.Civ.P. 4(c)(3). The plaintiff is advised that Congress requires the U.S. Marshals Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the U.S. Marshals precisely because in forma pauperis plaintiffs are indigent, it has not made any provision for these fees to be waived either by the court or by the U.S. Marshals Service.