United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on May 5, 2016. (Filing No. 1.)
Plaintiff was given leave to proceed in forma pauperis.
(Filing No. 5) 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).
SUMMARY OF COMPLAINT
construed, Plaintiff alleges that he was terminated from his
employment with Defendant on account of race and in
retaliation for reporting that another employee was harassing
him and making racist remarks. (Filing No. 1 at CM/ECF p. 1.)
Specifically, Plaintiff claims he told his supervisors that
"Gary" was chewing tobacco on the job and calling
him "Dennis Rodmen" or "boy" because
Plaintiff is "LGBT African American Negro."
(Id.) Plaintiff seeks $50, 000, 000.00 in damages.
APPLICABLE STANDARDS ON INITIAL REVIEW
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.
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.").
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).
DISCUSSION OF CLAIMS
court is not convinced that it has subject-matter
jurisdiction over this action. Plaintiff alleges
subject-matter jurisdiction exists pursuant to 28 U.S.C.
§ 1332, commonly referred to as "diversity of
citizenship" jurisdiction. Under § 1332, the
citizenship of each plaintiff must be different from the
citizenship of each defendant. Ryan v. Schneider
Nat'l. Carriers, Inc., 263 F.3d 816, 819 (8th Cir.
2001) (citing § 1332(a)). In addition, the amount in
controversy must be greater than $75, 000.00. 28 U.S.C.
§ 1332(a). Where a complaint "alleges a sufficient
amount in controversy to establish diversity jurisdiction,
but . . . the court questions whether the amount alleged is
legitimate, the party invoking federal jurisdiction must
prove the requisite amount by a preponderance of the
evidence." Missouri v. Western Surety
Company, 51 F.3d 170, 173 (8th Cir. 1995).
it appears that Plaintiff's citizenship is different from
that of the named Defendant, and Plaintiff alleges the amount
in controversy is over $75, 000.00. However, the court
questions whether the alleged amount in controversy is
legitimate where Plaintiff alleges he sustained $50, 000,
000.00 in damages because he was terminated from his
employment with Walmart. Therefore, the court will require
Plaintiff to show by a preponderance of the evidence that the
amount claimed is legitimate, and that the court has
if the court were to construe Plaintiff's Complaint as
asserting a claim under Title VII the Civil Rights Act of
1964, the Complaint would be deficient. 42 U.S.C. §
2000e. Title VII forbids employment discrimination against
"any individual" based on that individual's
"race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a). However, prior to filing a suit
in federal court under Title VII, a plaintiff is required to
exhaust his or her administrative remedies by first seeking
relief through the EEOC or the Nebraska Equal Opportunity
Commission ("NEOC"). 42 U.S.C. § 2000e-5. The
EEOC/NEOC will then investigate the charge and determine
whether to file suit on behalf of the charging party or make
a determination of no reasonable cause. If the EEOC/NEOC
determines that there is no reasonable cause, the agency will
then issue the charging party a right-to-sue notice. 42
U.S.C. § 2000e-5(b); see also Hanenburg v. Principal
Mut. Life Ins. Co., 118 F.3d 570, 573 (8th Cir. 1997).
charging party has 90 days from the receipt of the
right-to-sue notice to file a civil complaint based on his
charge. 42 U.S.C. § 2000e-5(f)(1). The civil complaint
may only encompass issues that are reasonably related to the
substance of charges timely brought before the EEOC/NEOC.
Williams v. Little Rock Mun. Water Works, 21 F.3d
218, 222 (8th Cir. 1994). Also, each discrete incident of
discriminatory or retaliatory action by an employer
constitutes its own unlawful employment practice for which
administrative remedies must be exhausted before bringing a
Title VII claim. Richter v. Advance Auto Parts,