Opinion
3:03-CV-0034-M
May 20, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is an employment discrimination action under Title VII.
Parties: Plaintiff is a resident of Irving, Texas. Defendant is Teleplan, Plaintiff's former employer. The court has not issued process in this case. However, on February 11 and March 6, 2003, the Magistrate Judge issued questionnaires to Plaintiff, who filed his answers on March 4, and March 28, 2003 respectively.
Findings and Conclusions: The Magistrate Judge has permitted Plaintiff to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. His complaint is, thus, subject to screening under 28 U.S.C. § 1915 (e)(2)(B), which imposes a screening responsibility on the district court when the plaintiff has been granted IFP status. That section provides in relevant parts a follows:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) 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)(B) (emphasis added).
Section 1915(e)(2)(B) applies equally to prisoner as well as nonprisoner in forma pauperis cases. See Newsome v. Equal Employment Opportunity Commission, 301 F.3d 227, 231-33 (5th Cir. 2002) (affirming dismissal of nonprisoner claims for frivolity and failure to state a claim under § 1915(e)(2)(B)(i) and (ii)); Cieszkowska v. Gray Line New York, 295 F.3d 204, 205-206 (2nd Cir. 2002) (affirming dismissal of in forma pauperis non-prisoner case for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)); see also Benson v. O'Brian, 179 F.3d 1014, (6th Cir. 1999) (complaints in actions not pursued in forma pauperis are not subject to "screening" under § 1915(e)(2)); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (same).
"A civil action under Title VII must be brought within ninety days of receipt of a right-to-sue-letter from the EEOC." Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Title VII states:
[I]f the Commission dismisses a charge or if, within 180 days after a charge is filed, the Commission has not filed a civil action, "the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the Respondent named in the charge."Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1250 (5th Cir. 1985) (quoting 42 U.S.C. § 2000e-5(f)(1)).
In this case, the EEOC sent a letter to Plaintiff by certified mail, return receipt requested, on August 23, 2002. Plaintiff acknowledges that he received the right to sue letter two days later, on August 25, 2002. (Answer to Question 1). The record reflects Plaintiff filed his complaint on January 6, 2003, well after 90 days from his receipt of the EEOC's notice.
In those instances where a plaintiff has failed to file his complaint until after more than 90 days have passed since receiving his right to sue letter, the Fifth Circuit has allowed, be it sparingly, equitable tolling to apply. Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. 1992). Nevertheless, such instances are limited to situations wherein the claimant has either actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Id.
Here Plaintiff neither actively pursued a judicial remedy nor was he tricked by any misconduct on the part of Teleplan in failing to timely file an action in this court. Rather he claims that the delay in filing this action was based on his inability to afford counsel. (Answer to Supplemental Question 1). Other courts have concluded that such an excuse does not warrant equitable tolling. Bell v. City of Dallas, 2002 WL 1822732, *5 (N.D. Tex., Dallas Div., Aug. 7, 2002) (3:02-CV-0029-P) (inadvertently missing filing deadline because of a failure to hire an attorney did not warrant equitable tolling). See also Jeffries v. Chicago Transit Auth., 770 F.2d 676, 680 (7th Cir. 1985) (refusing to recognize inability to pay counsel sufficient excuse for ignoring Title VII's time deadlines); Williams v. Sears, Roebuck and Co., 143 F. Supp.2d 941, 948 (W.D. Tenn. 2001) (holding that plaintiff's "inability or delay in procuring counsel is not a sufficient excuse" for missing the 90-day filing deadline); McFarland v. Metro-North Commuter R.R., 993 F. Supp. 210, 211 (S.D.N.Y. 1998) (holding that a plaintiff's inability to obtain counsel is not a basis for equitable tolling of the 90-day deadline). Therefore, the District Court should find that equitable tolling is not warranted in this case where Plaintiff did not actively pursue his judicial remedies or missed filing deadline because of his financial inability to hire an attorney.
RECOMMENDATION:
For the foregoing reasons, the Magistrate Judge recommends that the District Court dismiss Plaintiff's complaint as time barred. See 28 U.S.C. § 1915(e)(2)(B).
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Sen's. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.