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 conducted
an initial review of the Complaint on June 23, 2016.
(Filing No. 6.) Now, the court conducts further
initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
filed his Complaint against Walmart. Liberally construed,
Plaintiff, an “LGBT African American Negro, ”
brings this action under Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e, and
the Nebraska Fair Employment Practice Act, Neb. Rev. Stat.
§§ 48-1101 to 48-1126. Plaintiff's filings
include the charge of discrimination that he filed with the
Nebraska Equal Opportunity Commission (“NEOC”).
(Filing No. 7-1 at CM/ECF pp. 6-7.) In assessing
Plaintiff's Complaint, the court will consider the
allegations raised in Plaintiff's NEOC charge of
discrimination, as well as those raised in the Complaint.
See Coleman v. Correct Care Solutions, 559 Fed.
App'x. 601, 602 (8th Cir. 2014).
generally alleged in his Complaint and charge of
discrimination that his supervisors subjected him to a
hostile work environment and disparate treatment based upon
his race, color, and sex, and that he was terminated from his
employment in retaliation for reporting their conduct.
(Filing No. 1 at CM/ECF pp. 1-3; Filing No. 7-1
at CM/ECF pp. 6-7.) Plaintiff seeks $50, 000, 000.00 in
damages. (Filing No. 1 at CM/ECF p. 4.)
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. § 1915(e)(2)(B).
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
charge of discrimination was filed on June 14, 2016.
(Filing No. 7-1 at CM/ECF p. 6.) The charge of
discrimination describes instances of harassment,
discrimination, and retaliation. (Id. at CM/ECF pp.
6-7.) Plaintiff did not set forth the date on which he
received a right-to-sue notice from the NEOC with respect to
his charge of discrimination.
VII requires a plaintiff to exhaust his administrative
remedies by first seeking relief through the NEOC or the
EEOC. 42 U.S.C.A. § 2000e-5(f)(1). The NEOC/EEOC 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 NEOC/EEOC determines that
there is no reasonable cause, the agency will then issue the
charging party a right-to-sue notice. 42 U.S.C.A. §
2000e-5(f)(1); see also Hanenburg v. Principal Mut. Life
Ins. Co., 118 F.3d 570, 573 (8th Cir. 1997). The
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.A. § 2000e-5(f)(1).
it is unclear whether Plaintiff filed suit in a timely manner
in this court. On the court's own motion, the court will
give Plaintiff 30 days in which to notify the court of the
date on which he received a right-to-sue notice from the
NEOC/EEOC with respect to his charge of discrimination.
clear, Plaintiff must notify the court in writing of the date
on which he received a right-to-sue notice in response to his
charge of discrimination dated June 14, 2016. (See Filing
No. 7-1 at CM/ECF p. 6.) To the extent Plaintiff did not
file suit within 90 days of his receipt of the right-to-sue
notice, he must show ...