Opinion
1:23-CV-1512-DII
03-18-2024
WALTER WARD, Plaintiff, v. CONCENTRA and CONCENTRA CORPORATE OFFICE, Defendants.
ORDER ON IN FORMA PAUPERIS STATUS AND REPORT AND RECOMMENDATION ON THE MERITS OF THE CLAIMS
MARK LANE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
The Magistrate Court submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the court is Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2). Because Plaintiff is requesting permission to proceed in forma pauperis, this court must review and make a recommendation on the merits of Plaintiff's claims pursuant to 28 U.S.C. § 1915(e).
I. Request To Proceed IN FORMA PAUPERIS
The court has reviewed Plaintiff's financial affidavit and determined Plaintiff is indigent and should be granted leave to proceed in forma pauperis. Accordingly, the court hereby GRANTS Plaintiff's request for in forma pauperis status. The Clerk of the Court shall file the complaint without payment of fees or costs or giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is granted subject to a later determination the action should be dismissed if the allegation of poverty is untrue or the action is found frivolous or malicious pursuant to 28 U.S.C. § 1915(e). Plaintiff is further advised, although Plaintiff has been granted leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
As stated below, this court has made a § 1915(e) review of the claims made in this complaint and is recommending Plaintiff's claims be dismissed without prejudice under 28 U.S.C. § 1915(e). Therefore, service upon Defendant should be withheld pending the District Court's review of the recommendations made in this Report. If the District Court declines to adopt the recommendations, then service should be issued at that time upon Defendants.
II. Standard of Review
Because Plaintiff has been granted leave to proceed in forma pauperis, the court is required by statute to review the complaint. Section 1915(e)(2) provides that “the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A complaint is frivolous, if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, (1989); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
Pro se complaints are liberally construed in favor of the plaintiff. Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018); Haines v. Kerner, 404 U.S. 519, 20-21 (1972). However, pro se status does not offer a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986).
III. Review of the Merits of the Claim
Plaintiff Walter Ward purports to sue Concentra and Concentra Corporate Office (together “Concentra”) for civil rights, Fair Labor Standards Act, False Claims Act related claims as well as for constitutional and statutory violations as well as tortious interference. Dkt. 1 at 3. The Complaint comprises a complaint form (Dkt. 1), a Civil Case form (Dkt. 1-2), and Ward's response to the Magistrate Court's order for a more definite statement (Dkt. 6) (together “Complaint”).
The undersigned arrived at these claims by construing together liberally Ward's Complaint, Civil Cover Sheet, and Response to Order for More Definite Statement. United States ex rel. Willard v. Humana Health Plan of Tex., 336 F.3d 375, 379 (5th Cir. 2003) (“In deciding a motion to dismiss the court may consider documents attached to or incorporated in the complaint.”).
“The language of § 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6).” Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam). “In determining whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii), courts engage in the same analysis as when ruling on a motion for dismissal under Rule 12(b)(6).” Fierro v. Knight Transp., No. EP-12-CV-00218-DCG, 2012 U.S. Dist. LEXIS 133249, at *21-22 (W.D. Tex. 2012) (citing Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011) (per curiam)). Courts' analysis “turns on the sufficiency of the ‘factual allegations' in the complaint,” Smith v. Bank of Am., N.A., 615 Fed.Appx. 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, 574 U.S. 10, 12 (2014) (per curiam)), as neither the IFP statute nor the Federal Rules of Civil Procedure “countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson, 574 U.S. at 11.
Pro se complaints receive a “liberal construction.” Carlucci, 884 F.3d 538 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)), but “[e]ven so, ‘mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'” Brown v. Tarrant Cty., 985 F.3d 489, 494 (5th Cir. 2021) (quoting United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam)).
The Complaint alleges that from 9:00 a.m. to 1:00 p.m. on December 4, 2023 Concentra violated Ward's “right to work.” Dkt. 6 (Response to Order for More Definite Statement) at 1. Ward alleges he “has a right to seek employment without prejudice[,] false claims[,] or opinions of medical Defendant staff as to whether Plaintiff [Ward] is deserving of said opportunity.” Id. Ward's claims arise from his experience while undergoing a physical examination for employment with the City of Austin as a commercial driver. Dkt. 1 at 2. He is seeking ten years' worth of wages, $900,000. Id. at 3.
The Complaint provides that Ward was “made to perform CrossFit[-]style calistethics [sic]” as part of the physical examination. Id. at 2. Ward was not “notified of the weight requirement beforehand by staff” and “was not even greeted politely by lady giving test.” Id. Ward failed the test because of a “cold, hostile environment.” Id. He contends that three days after the test, a City of Austin representative contacted him “and said [he] threw,” id., a “50+ lbs. weight during physical testing” at Concentra staff. Dkt. 6 at 1. He states that statement was false. Dkt. 1 at 2.
Ward alleges that “Concentra Medical staff saw an opportunity to discriminate against [him] by not giving proper instruction and not allowing [him] to retry to lift weight.” Id. He “say[s] discrimination because staff was 100% white and Spanish. Staff showed no tolerance for [Ward] because [he is] a Native man.” Id. According to the Complaint, “Concentra was staffed with unprofessional young uncompassionate insensitive Spanish men and women,” who “who sought to undermine a Native man from employment.” Id.
“Insensitive and rude behavior do not constitute illegal discrimination, and ‘coldshouldering' does not rise to the level of an actionable offense.” Woodruff v. Pulte Home Corp., No. 98-50406, 1998 U.S. App. LEXIS 39238, at *8 (5th Cir. 1998) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563-64 (5th Cir. 1998)). Furthermore, “[n]either hostility nor ostracism constitute, or rise to the level of, an adverse employment decision.” Harris v. City of Carrollton, No. 3:01-CV-1249-M, 2002 U.S. Dist. LEXIS 21040, at *16 n.6 (N.D. Tex. 2002) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.), cert. denied, 522 U.S. 932 (1997) (“hostility from fellow employees . . . does not constitute [an] ultimate employment decision.”)); see also Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir. 2002), cert. denied, 537 U.S. 1001 (2002) (“ostracism and rudeness by supervisors and co-workers do not rise to the level of an adverse employment action.”).
Ward's allegations amount to allegations that Concentra staff were rude to him. The Complaint does not allege that Concentra staff subjected him to a different physical examination than other applicants. See generally Dkt. 1. The Complaint does not allege that Concentra employees gave other applicants additional opportunities to re-attempt failed examination components or allowed other applicants to perform the physical examination in a more conducive environment. Id. Nor does the Complaint allege that Concentra employees gave Ward a failing grade despite a passing-level performance. Id. Indeed, Ward's allegations of discrimination stem solely from Concentra staff appearing white and “Spanish” and that at least one employee exhibited rudeness by not greeting him. Id.
Even liberally construed, Ward's allegations are insufficient under Rule 12(b)(6). Brown, 985 F.3d at 494. Accordingly, the undersigned will recommend that the District Court dismiss Ward's lawsuit for failure to state a claim.
IV. Order and Recommendations
The Magistrate Court hereby GRANTS Plaintiff's Application to Proceed In Forma Pauperis (Dkt. 2).
The Magistrate Court RECOMMENDS the District Court DISMISS WITHOUT PREJUDICE Plaintiff's cause of action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The referral of this case to the Magistrate Court should now be canceled.
V. Warning
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).