United States District Court, E.D. Wisconsin
STANLEY W. MCCANE, Plaintiff,
SECRETARY ROBERT WILKIE and PATRICIA MARTIN, Defendants.
Stadtmueller U.S. District Judge
February 20, 2019, Plaintiff filed this action pro
se alleging issues with his employment, and specifically
a failure to promote him. (Docket #1). The next day,
Magistrate Judge Nancy Joseph screened the complaint and,
finding that it failed to state any viable claims for relief,
directed Plaintiff to submit an amended complaint. (Docket
#4). He did so on March 11, 2019, (Docket #5), and the matter
was simultaneously reassigned to this branch of the Court.
Court begins by addressing Plaintiff's motion to proceed
in forma pauperis. (Docket #2). In order to allow a
plaintiff to proceed without prepaying the filing fee, the
Court must first decide whether the plaintiff has the ability
to pay the filing fee and, if not, whether the lawsuit is
frivolous, malicious, or fails to state a viable claim for
relief. 28 U.S.C. §§ 1915(a), (e)(2)(B)(I). On the
first question, Plaintiff avers that he is retired, earns
very little from Social Security and a pension, and has
approximately $1, 400 per month in expenses. (Docket #2 at
2-3). Plaintiff's sworn statements reveal that he would
be unable “to provide himself . . . with the
necessities of life” if required to pay the $400.00
filing fee in this matter.
v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339
(1948); Brewster v. N. Am. Van Lines, Inc., 461 F.2d
649, 651 (7th Cir. 1972).
notwithstanding the payment of any filing fee, the Court must
dismiss a complaint if it raises claims that are
“frivolous or malicious, ” which fail to state a
claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the…claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers
“labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “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.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
original complaint alleged that he was denied a promotion in
January 2016. (Docket #1 at 3). He alleged that Defendants
denied him the promotion because they employed nepotism and
collusion to ensure that certain candidates for the position
were given an unfair advantage. Id. Magistrate
Joseph found that these allegations invoked Plaintiff's
rights under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e (“Title VII”). (Docket #4 at
2). However, Plaintiff had failed to allege that he was part
of a class of persons protected by Title VII, or that he had
exhausted his administrative remedies as required by Title
VII before filing the lawsuit. Id. at 3.
filed his amended complaint using a form complaint prepared
by the Clerk of the Court. (Docket #5). The amended complaint
includes bare-bones allegations that Plaintiff was denied a
promotion based on his race (he does not indicate his race)
and age (approximately 65 at the time of the incident).
Id. at 3-4. These allegations at least partially
address Magistrate Joseph's first concern. They suggest
that Plaintiff may have a cause of action under Title VII and
the Age Discrimination in Employment Act, 29 U.S.C. §
remainder of the amended complaint nevertheless confirms that
this action must be dismissed. As to Magistrate Joseph's
second concern, Plaintiff alleges that he filed a charge with
the EEOC regarding the alleged discrimination on March 16,
2016. Id. at 5. The EEOC did not issue him a
right-to-sue letter. Id. Without such a letter,
Plaintiff is barred from bringing an action under Title VII.
Conner v. Ill. Dep't of Nat. Res., 413 F.3d 675,
680 (7th Cir. 2005).
importantly, both Title VII and the ADEA require that claims
must be filed in court within 300 days of the alleged
discriminatory act. Riley v. Elkhart Comm. Schs.,
829 F.3d 886, 890-91 (7th Cir. 2016). In the amended
complaint, Plaintiff states that the alleged discrimination
occurred on March 1, 2016. Thus, his claims were filed long
after the 300-day filing period expired. This action must,
therefore, be dismissed as time-barred.
IT IS ORDERED that Plaintiff's motion to
proceed in forma pauperis (Docket #2) be and the
same is hereby GRANTED; and IT IS
FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice pursuant to
28 U.S.C. § ...