Summary
finding that "although the Charge of Discrimination and RTS notice were not attached as exhibits to [plaintiff's] complaint, they are central to his claim and therefore may be considered by this court without converting the Defendants' motion to dismiss into a motion for summary judgment"
Summary of this case from Brown v. Magna Modular Sys., Inc.Opinion
No. 13-2622-JDT-tmp
01-30-2014
MICHAEL GATES, Plaintiff, v. WILL HUDSON, ET AL., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ORDER GRANTING MOTION TO DISMISS
ORDER CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Plaintiff Michael Gates, a resident of Memphis, Tennessee, filed a pro se civil complaint on August 12, 2013, accompanied by a motion for leave to proceed in forma pauperis. (Docket Entries 1 & 2.) Magistrate Judge Tu M. Pham subsequently granted leave to proceed in forma pauperis. (D.E. 8.) On October 18, 2013, Defendants Will Hudson and the Memphis Area Transit Authority ("MATA") filed a motion to dismiss or for summary judgment. (D.E. 10 & 11.) Plaintiff did not respond to Defendants' motion. Magistrate Judge Pham issued a Report and Recommendation ("R&R") on January 8, 2014, in which he recommended that the case be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) or, in the alternative, that Defendants' motion to dismiss be granted. (D.E. 12.) Objections to the R&R were due within 14 days. See Fed. R. Civ. P. 72(b)(2). However, no objections have been filed.
In accordance with Administrative Order 2013-05, the assigned U.S. Magistrate Judge is responsible for case management and handling of all pretrial matters by determination or by report and recommendation, as appropriate.
Plaintiff's complaint alleges in a conclusory manner, without any factual support, that MATA's refusal to hire him was discriminatory. (D.E. 1 at 2.) Attached to Defendants' motion to dismiss is a copy of a charge filed by Plaintiff with the Equal Employment Opportunity Commission ("EEOC") on January 28, 2013, alleging that MATA failed to hire him as a bus driver based on his age and race. (D.E. 11 at 1.) Like the complaint, Plaintiff's EEOC charge included no factual support for his allegations. Plaintiff stated only that he was given no reason for MATA's decision. (Id.) The EEOC issued a right to sue notice on February 5, 2013. (Id. at 3.)
On August 15, 2013, Plaintiff sent an ex parte email directly to Magistrate Judge Pham in which he reasserted his claims. (D.E. 6.) Magistrate Judge Pham ordered the Clerk to file a copy of the email and admonished Plaintiff that such ex parte communications were inappropriate. (D.E. 5.) That document also contains no additional factual support for Plaintiff's allegations of discrimination.
Defendants contend in their motion to dismiss, and Magistrate Judge Pham found, that Plaintiff's complaint is untimely because it was not filed within ninety days after his presumed receipt of the EEOC's right to sue notice. As the right to sue notice was issued on February 5, 2013, the complaint filed on August 12, 2013, was three months late. Plaintiff has asserted no basis for equitable tolling of the limitations period.
Having reviewed the complaint and the law, the Court agrees with the Magistrate Judge's conclusion and ADOPTS the R&R. Defendants' motion to dismiss is GRANTED, and this case is hereby DISMISSED for failure to state a claim on which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court must also consider whether Plaintiff should be allowed to appeal this decision in forma pauperis, should he seek to do so. Pursuant to the Federal Rules of Appellate Procedure, a non-prisoner desiring to proceed on appeal in forma pauperis must obtain pauper status under Fed. R. App. P. 24(a). See Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Rule 24(a)(3) provides that if a party was permitted to proceed in forma pauperis in the district court, he may also proceed on appeal in forma pauperis without further authorization unless the district court "certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis." If the district court denies pauper status, the party may file a motion to proceed in forma pauperis in the Court of Appeals. Fed. R. App. P. 24(a)(4)-(5).
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. The same considerations that lead the Court to dismiss this case for failure to state a claim because it is untimely also compel the conclusion that an appeal would not be taken in good faith.
It is CERTIFIED, pursuant to Fed. R. App. P. 24(a), that any appeal in this matter by Plaintiff is not taken in good faith. Leave to proceed on appeal in forma pauperis is, therefore, DENIED. Accordingly, if Plaintiff files a notice of appeal, he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.
Pursuant to Fed. R. App. P. 3(a), any notice of appeal should be filed in this Court. A motion to appeal in forma pauperis then should be filed directly in the United States Court of Appeals for the Sixth Circuit. Unless he is specifically instructed to do so, Plaintiff should not send to this Court copies of documents and motions intended for filing in the Sixth Circuit.
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The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
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JAMES D. TODD
UNITED STATES DISTRICT JUDGE