The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELTON HOOPER, JR., )
Plaintiff,
V. No. 4:19-CV-1853-RLW
MARK ESPER,
Defendant.
MEMORANDUM AND ORDER
This matter is before the Court on pro se plaintiff Elton Hooper, Jr.’s motion for leave to
proceed in forma pauperis. Having reviewed plaintiff's motion and financial affidavit, the Court
has determined that plaintiff lacks sufficient funds to pay the filing fee, so this motion will be
granted and the filing fee will be waived. See 28 U.S.C. § 1915(a). On initial review under 28
U.S.C. § 1915(e), however, the Court finds that plaintiff's complaint fails to state a claim upon
which relief may be granted. The Court will allow plaintiff to file an amended complaint.
Legal Standard on Initial Review
The Court is required to review the factual and legal allegations of a complaint filed in
forma pauperis, and dismiss the complaint if it is frivolous, malicious, or fails to state a claim upon
which relief can be granted. 28 U.S.C. § 1915(e). To state a claim for relief, a complaint must
plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action
[that are] supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “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.” Jd. at 678. Determining whether a complaint states a plausible claim for relief is a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. Jd. at 679.
The Complaint
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967 (“ADEA”) against the United States Secretary of
Defense, Mark T. Esper. Plaintiff alleges discrimination based on race, color, and age. Plaintiff
worked as an Information Technology Specialist at the Agency’s U.S. Army Human Resources
Command (“HRC”) in St. Louis, Missouri. He alleges that on August 10, 2010, the Army did not
offer the job swap program to HRC employees and did not give HRC employees the opportunity
to accept a $25,000 Voluntary Separation Incentive Payout (“VSIP”). He alleges employees of
the Army Review Board Agency were given this opportunity.
Plaintiff seeks to represent a class of all employees of the HRC who were not offered the
job swap program and were denied the $25,000 VSIP. Other than asking to represent a class,
plaintiff does not state the relief he seeks through this employment action.
Discussion
As a threshold matter, plaintiff seeks to represent a class of individuals who were not
offered the job swap program and not given the opportunity to accept the $25,000 VSIP. Despite
his desire to represent others, because plaintiff is proceeding pro se, he cannot represent a class of
individuals. A litigant may bring his own claims to federal court without counsel, but not the
claims of others. See 28 U.S.C. § 1654; see also 7A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 3d § 1769.1 (“class representatives cannot appear pro se”). Moreover, under Rule
23(a)(4), a class representative must “fairly and adequately protect the interests of the class.”
Plaintiff has made no showing that he would fairly and adequately protect the interests a class.
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Turning to the merits of his allegations, in order to establish a prima facie case under the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 ef seg., a plaintiff must
show: (1) he is over 40; (2) he was qualified for the position; (3) he suffered an adverse
employment action; and (4) substantially younger, similarly situated employees were treated more
favorably. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010). Plaintiff does
not allege any incidents where he was treated differently due to his age. He states only that HRC
employees were not offered the job swap program and the $25,000 VSIP, while employees of the
Army Review Board were. Plaintiff makes no allegations regarding the age of HRC employees
versus Army Review Board employees; and no allegations regarding age as a qualifications for
the job swap program or the VSIP. For this reason, his allegations fail to state a claim for age
discrimination and will be dismissed on initial review.
Likewise none of plaintiff's allegations, accepted as true, are sufficient to state a claim that
plaintiff was discriminated against on the basis of his race or color under Title VII of the Civil
Rights Act. 42 U.S.C. § 2000e-2(a). Again, plaintiff's complaint is that the HRC employees were
not offered the job swap or the VSIP. Plaintiff never states any facts to support his allegations of
disparate treatment based on his race or color. For example, he does not allege that employees of
the Army Review Board Agency, who were offered the job swap and VSIP, were of a different
race or color. The complaint is void of any allegations that similarly situated employees of a
different race or color were treated more favorably. For this reason, plaintiffs Title VII allegations
fail to state a claim for employment discrimination and will be dismissed on initial review.
Because plaintiff is proceeding pro se, the Court will allow plaintiff to file an amended
complaint. Plaintiff shall have thirty days from the date of this order to file an amended complaint.
Plaintiff is warned that the filing of an amended complaint replaces the original complaint, and
claims that are not realleged are deemed abandoned. E.g., In re Wireless Telephone Federal Cost
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Recovery Fees Litigation, 396 F.3d 922, 928 (8th Cir. 2005). The Court will order the Clerk to
provide plaintiff with a form complaint for employment discrimination. If plaintiff seeks to bring
a Title VII or ADEA claim, he must allege facts that show he was discriminated against because
of his age, race, and color. He may not simply allege that HRC employees were treated differently
from Army Review Board employees. If plaintiff fails to file an amended complaint within thirty
days, the Court will dismiss this action without prejudice.
Appointment of Counsel
Finally, the Court will deny plaintiff's motion for appointment of counsel without
prejudice. There is no constitutional or statutory right to appointed counsel in civil cases. See
Nelson vy. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). To determine |
whether to appoint counsel, the Court considers several factors, including whether: (1) the plaintiff
has presented non-frivolous allegations supporting his or her prayer for relief; (2) the plaintiff will
substantially benefit from the appointment of counsel; (3) there is a need to further investigate and
present the facts related to the plaintiff's allegations; and (4) the factual and legal issues presented
by the action are complex. See Johnson vy. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986);
Nelson, 728 F.2d at 1005. After considering these factors, the Court finds that the facts and legal
issues involved in plaintiff's case are not so complicated that the appointment of counsel is
warranted at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [ECF
No. 2] is GRANTED. Pursuant to 28 U.S.C. § 1915(a), the filing fee is waived.
IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF
No. 3] is DENIED without prejudice.
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IT IS FURTHER ORDERED that the Clerk of Court shall mail to plaintiff a copy of the
Court’s form employment discrimination complaint.
IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of
this memorandum and order to amend his complaint in accordance with this memorandum and
order. If plaintiff fails to file an amended complaint within thirty days, the Court will dismiss this
action without prejudice.
Dated this / HK, of December, 2019.
6 es
LE L. WHITE
UNITED STATES DISTRICT JUDGE
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