United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed his Complaint on January 11, 2019. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
brings this action against the United States of America
Department of Labor: Wage and Hour Division (the
“Department”) and First National of Nebraska,
Inc. Plaintiff's Complaint sets forth only the following
allegations: “Family Medical Leave Act.
Termination.” (Filing No. 1 at CM/ECF pp.
2-3.) As relief, Plaintiff seeks $10, 000, 000 in
damages. (See Id. at CM/ECF p. 1.)
LEGAL 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
construed, it appears Plaintiff is attempting to assert a
claim under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601-2654. The
Eighth Circuit has recognized three categories of FMLA claims
arising under 29 U.S.C. § 2615(a)(1)-(2):
(i) entitlement claims, in which an employee alleges a denial
of a benefit to which he was entitled under the statute; (ii)
discrimination claims, in which an employee alleges that the
employer discriminated against him in the terms and
conditions of employment because the employee exercised
rights to which he was entitled under the FMLA; and (iii)
retaliation claims, in which an employee alleges that the
employer took adverse action against him for opposing a
practice made unlawful under the FMLA.
Johnson v. Wheeling Mach. Prods., 779 F.3d 514,
517-18 (8th Cir. 2015).
Plaintiff's allegations are woefully inadequate to assert
a plausible claim for relief under the FMLA. He alleged only
the following: “Family Medical Leave Act.
Termination.” (Filing No. 1 at CM/ECF p. 2.)
While pro se pleadings must be construed liberally,
“such pleadings may not be merely conclusory: the
complaint must allege facts, which if true, state a claim as
a matter of law.” Martin v. Aubuchon, 623 F.2d
1282, 1285-86 (8th Cir. 1980); see also Fed. R. Civ.
P. 8(a)(2), (d)(1) (every complaint must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief” and “[e]ach
allegation must be simple, concise, and direct”).
“[T]here is a difference between liberally reading a
claim which ‘lacks specificity' . . . and
inventing, ex nihilo, a claim which simply was not
made.” Shannon v. Ford Motor Co., 72 F.3d 678,
685 (8th Cir. 1996). On the court's own motion, Plaintiff
will be given an opportunity to file an amended complaint
that sets forth additional facts in support of his claim,
including when and how the alleged FMLA violation occurred.
Plaintiff may amend his Complaint to assert a FMLA claim, he
may not pursue such claim against the United States or the
Department. This is so because the United States and federal
agencies enjoy immunity from suit unless ...