Opinion
1:23-CV-1514-RP-ML
03-13-2024
WALTER WARD, Plaintiff, v. TEXAS DISPOSAL SYSTEMS, INC., BOB GREGORY, JANICE BREWSTER MARTINEZ, and TOM MINSTER, Defendants.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
MARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE
Plaintiff Walter Ward filed an Application to Proceed in District Court Without Prepaying Fees or Costs (Dkt. 2) on December 13, 2023. Because Plaintiff is seeking permission to proceed in forma pauperis, the court must perform an initial review of the complaint and dismiss the case if the court determines that the complaint is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune. 28 U.S.C. § 1915(e)(2).
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 Defendant.
II. Standard of Review
Because Plaintiff is seeking permission to proceed in forma pauperis, the court must perform an initial review of the Complaint and dismiss the case if the court determines that the Complaint is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune. 28 U.S.C. § 1915(e)(2). Section 1915(e)(2) provides in relevant part 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 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. 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. Initial Review
“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court.” Searcy v. Crowley Indep. Sch. Dist., No. 23-10776, 2023 U.S. App. LEXIS 26071, at *2 (5th Cir. 2023) (quoting Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)). “Exhaustion requires the plaintiff to file ‘a timely charge with the EEOC [(Equal Employment Opportunity Commission)] and receive[] a statutory notice of right to sue.'” Id. (quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002)). “Section 2000e-5(e)(1) provides that, before a plaintiff can commence a civil action under Title VII in federal court, she must file a timely charge with the EEOC, or with a state or local agency with authority to grant or seek relief from the alleged unlawful employment practice.” Dao, 96 F.3d at 789.
The Complaint alleges discrimination “while working” in violation of Title VII. Dkt. 1 at 2; Dkt. 1-1 at 1. But Plaintiff reports he “never contacted EEOC.” Dkt. 14 at 1.
Because filing an EEOC charge “is a precondition to filing in district court,” Palma v. New Orleans City, 115 Fed.Appx. 191, 194 (5th Cir. 2004), the Complaint-at this time-lacks an arguable basis in law. Neitzke, 490 U.S. at 327. Accordingly, the undersigned will recommend this case be dismissed without prejudice.
IV. Order and Recommendations
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs (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).
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 Automobile Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).