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Akins v. Walmart

United States District Court, D. Nebraska

May 26, 2015

SAMAR AKINS, Plaintiff,


JOHN M. GERRARD, District Judge.

Plaintiff Samar Akins filed his complaint (Filing No. 1-1) in this case on January 14, 2015. This court has given him leave to proceed in forma pauperis. The court now conducts an initial review of the complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


Plaintiff named as defendants Walmart and three employees of the Nebraska Equal Opportunity Commission ("NEOC"), Valerie Kimble, Paula Gardner, and Barb Albers. He brought this action pursuant to 42 U.S.C. § 1983. ( See Filing No. 1-1 at CM/ECF p. 1.) The court also construes his complaint to raise claims for relief under 42 U.S.C. § 1981 and Nebraska state law.

Plaintiff, a black male, described in his complaint an incident that occurred at Walmart between him and a white, female Walmart employee. He alleged he went to Walmart during the summer of 2014 to cash a check. While at Walmart, Plaintiff "complained to [the employee's] superiors that she needed help because too many people were waiting for assistance in the line and she was working by herself." ( Id. ) He then conversed "with a[n] African American woman about racism within America and Walmart, " and he did so in "the employee's presence." ( Id. at CM/ECF p. 2.) When it was Plaintiff's turn to cash his check, the employee "became hostile and said the machine wouldn't allow her to cash [it], " though it worked properly for everyone in line before Plaintiff. Plaintiff called for a supervisor who was able to cash Plaintiff's check using the same machine. ( Id. ) Plaintiff asked the employee for her identification. The employee removed her badge and waived it in Plaintiff's face, hitting him in the nose. A Walmart supervisor advised Plaintiff the employee would be disciplined. ( Id. )

Plaintiff filed a police report concerning the incident, and he also filed a complaint with the NEOC. ( Id. ) Kimble, an NEOC investigator, refused to contact witnesses and refused to ascertain the manner in which the employee was disciplined. ( Id. at CM/ECF p. 3.) Plaintiff complained about Kimble's failure to investigate to Kimble's superiors, Gardner and Albers, and both "refused to act." ( Id. ) Ultimately, the NEOC found "no reasonable cause of discrimination." ( Id. at CM/ECF p. 1.)

For relief in this case, Plaintiff seeks damages in the amount of $20, 000 from each defendant, and an additional $50, 000 from Walmart.


The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible, " or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("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.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


A. Claims Against NEOC ...

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