United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
a non-prisoner, has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an initial
review of Plaintiff's claims to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2)
(requiring the court to dismiss actions filed in forma
pauperis if they are frivolous or malicious, fail to state a
claim on which relief may be granted, or seek monetary relief
against a defendant who is immune from such relief).
SUMMARY OF COMPLAINT
makes no factual allegations. Rather, she states that the
basis for federal jurisdiction in this case is “EEOC
(Investigator Joseph Wilson)”; she is entitled to
relief because of “NEOC & EEOC Findings Title VII
of the Civil Rights Act ADEA”; the factual basis for
her claim is “ADEA”; and the relief she seeks is
“My Lively Hood.” (Filing No. 1 at CM/ECF pp.
3-4.) Attached to Plaintiff's Complaint is an April 1,
2019, Determination from the Nebraska Equal Opportunity
Commission of “no reasonable cause.” (Filing No.
1 at CM/ECF p. 8.)
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).
apparently attempts to bring a claim under the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-634 (Westlaw
2019), which restricts employers that are engaged in an
industry affecting commerce, and that employ 20 or more
employees, from discriminating against employees who are 40
years of age or older with respect to their
“compensation, terms, conditions, or privileges of
employment, because of such individual's age.” 29
U.S.C. § 623(a)(1) (Westlaw 2019). “In order to
establish a prima facie case under the Age Discrimination in
Employment Act (ADEA), a plaintiff must show: (1) she is over
40; (2) she was qualified for the position; (3) she suffered
an adverse employment action; and (4) substantially younger,
similarly situated employees were treated more
favorably.” Faulkner v. Douglas Cty. Nebraska,
906 F.3d 728, 734 (8th Cir. 2018).
may also intend to allege a discrimination or retaliation
claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17 (Westlaw 2019). If she
wishes to bring a discrimination claim, she must allege facts
showing she “(1) is a member of a protected group; (2)
was meeting the legitimate expectations of the employer; (3)
suffered an adverse employment action; and (4) [suffered]
under circumstances permitting an inference of
discrimination.” Bunch v. Univ. of Arkansas Bd. of
Trustees, 863 F.3d 1062, 1068 (8th Cir. 2017) (internal
quotation marks and citation omitted). If Plaintiff wants to
assert a retaliation claim, she must allege facts showing
“(1) she engaged in protected conduct, (2) she suffered
a materially adverse employment act, and (3) the adverse act
was causally linked to the protected conduct.”
Id. (internal quotation marks and citation omitted).
court has reviewed Plaintiff's Complaint, keeping in mind
that complaints filed by pro se litigants are held to less
stringent standards than those applied to formal pleadings
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972). However, even pro se litigants must comply
with the Federal Rules of Civil Procedure. Federal Rule of
Civil Procedure 8 requires that every complaint contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief” and that
“[e]ach allegation . . . be simple, concise, and
direct.” Fed.R.Civ.P. 8(a)(2), (d)(1). 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). Here,
Plaintiff's Complaint fails to meet this minimal pleading
standard because she alleges no facts whatsoever.
court will provide Plaintiff with an opportunity to file
ONE amended complaint that
supersedes all others and that alleges
facts establishing each element of
her claims against the Defendant, as explained above. Failure
to file an amended complaint within the time specified by the
court will result in the court dismissing this case without
prejudice and without further notice to Plaintiff. The court
reserves the right to conduct further review of
Plaintiff's claims pursuant to 28 U.S.C. §
1915(e)(2) after she addresses the matters set forth in this
Memorandum and Order. Accordingly, IT IS ORDERED:
Plaintiff shall file an amended complaint by August 2, 2019,
that states a claim upon which relief may be granted.
Plaintiff's amended complaint will supersede all others.
Failure to file an amended complaint within the time
specified by the court will ...