United States District Court, D. Nebraska
MARK E. VEYLUPEK, Plaintiff,
UNION PACIFIC RAILROAD, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
granting Plaintiff leave to proceed in forma pauperis, the
court now conducts an initial review of Plaintiff's
Complaint (Filing No. 1) to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
brings what he characterizes as a “FMLA” claim
against the Union Pacific Railroad (“UPRR”)
stemming from his February 20, 2015, injury received while
“tying hand brake at Manley grain elevator. Manley
Ne.” For relief, Plaintiff requests monetary damages
for all past and future medical and prescription costs,
permanent nerve damage, and pain and suffering. (Filing No. 1
at CM/ECF p. 4.)
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
currently drafted, Plaintiff's Complaint fails to state a
claim upon which relief can be granted for two reasons.
First, the Complaint lacks sufficient factual allegations to
“allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. A complaint must
state enough to “‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.'” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Twombly, 550 U.S. at 555). This Plaintiff
has failed to do.
the legal basis for Plaintiff's claim is unclear.
Plaintiff's Complaint states that he brings his claim
under the “FMLA, ” which commonly refers to the
Family and Medical Leave Act of 1993, 29 U.S.C. §§
2601-2654 (Westlaw 2018). “The FMLA entitles an
employee to twelve workweeks of leave during any twelve-month
period if he or she has a serious health condition that makes
the employee unable to perform the functions of the position
of such employee.” Sisk v. Picture People,
Inc., 669 F.3d 896, 899 (8th Cir. 2012) (internal
quotation and citation omitted). There are two types of
claims that may be brought under FMLA: retaliation and
interference. “In a retaliation claim, the employee
alleges that the employer discriminated against [him] for
exercising [his] FMLA rights.” Id. (internal
quotation and citation omitted). “An employee can
prevail under an interference theory if he was denied
substantive rights under the FMLA for a reason connected with
his FMLA leave.” Stallings v. Hussmann Corp.,
447 F.3d 1041, 1050 (8th Cir. 2006).
Plaintiff makes no allegations whatsoever regarding FMLA
leave, his inability to perform the functions of his job, and
whether Defendant UPRR discriminated against Plaintiff for
exercising his FMLA rights or interfered with his right to
exercise them, it is possible that Plaintiff intended to
assert a claim under “FELA, ” which is the
Federal Employers' Liability Act, 45 U.S.C. § 51 et
seq. FELA provides, in part, that “[e]very common
carrier by railroad . . . shall be liable in damages to any
person suffering injury while he is employed by such carrier
. . . for such injury or death resulting in whole or in part
from the negligence of any of the officers, agents, or
employees of such carrier . . . .” 45 U.S.C. § 51.
to prevail on a F.E.L.A. claim, a plaintiff must prove the
traditional common law components of negligence including
duty, breach, foreseeability, causation and injury, ”
including that “the defendant railroad failed to use
reasonable or ordinary care under the circumstances, ”
“the railroad either knew or should have known of the
condition or circumstances that allegedly caused the
plaintiff's injury, ” and “the railroad, with
the exercise of due care, could have reasonably foreseen that
a particular condition could cause injury.” 8th Cir.
Civil Jury Instr. § 15.00, at 337 (2017).
FELA, “[r]ailroads are liable only to their employees,
and only for injuries sustained in the course of
employment.” CSX Transp., Inc. v. McBride, 564
U.S. 685, 691 (2011). Insofar as causation is concerned,
juries in FELA cases “are properly instructed that a
defendant railroad ‘caused or contributed to' a
railroad worker's injury ‘if [the railroad's]