United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on September 30, 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 he was sexually harassed by his
supervior, Ray Curtis, and received no satisfaction when he
reported the harassment to a more senior supervisor, David
Crouch. Plaintiff also alleges Crouch took no action after
Plaintiff reported that another supervisor, Geoorge Devereax,
was texting while driving Plaintiff and other employees of
WIS International to a work site. 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 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 section 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). 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.
the allegations of the complaint do not show that
Plaintiff's citizenship is different from that of each of
the named Defendants. Also, while Plaintiff seeks to recover
$50 million in damages, the court questions whether the
amount in controversy is over $75, 000.00. Plaintiff does not
claim that he suffered any adverse employment action, but
merely alleges in general terms that he feels harassed,
unsafe, discriminated against, and humiliated. The court
therefore will require Plaintiff to file an amended complaint
alleging the State citizenship of himself and each Defendant,
and also to make a showing by a preponderance of the evidence
that the amount in controversy is greater than $75, 000.00.
the court were to construe Plaintiff's complaint as
asserting a claim of sexual harassment under Title VII the
Civil Rights Act of 1964, the complaint would be deficient.
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). Plaintiff did not attach a
right-to-sue letter to his complaint and there is no evidence
that he sought relief from the EEOC or NEOC.
THEREFORE ORDERED that:
1. Plaintiff has until November 18, 2016, to file an amended
complaint alleging sufficient facts to establish that the
court has diversity of citizenship jurisdiction. In
particular, Plaintiff must allege his State ...