Doumbouya v. Mount Carmel Health System

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

FANTA DOUMBOUYA,

Plaintiff,

Case No. 2:22-cv-3086

vs. Judge Sarah D. Morrison

Magistrate Judge Elizabeth P. Deavers

MOUNT CARMEL HEALTH SYSTEM,

Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, an Ohio resident who is proceeding without the assistance of counsel, moves

this court for leave to proceed in forma pauperis. (ECF No. 1.) Plaintiff’s request to proceed in

forma pauperis is GRANTED. All judicial officers who render services in this action shall do so

as if the costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is now before the Court for the initial screen of Plaintiff’s Complaint under

28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2).1 Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint without prejudice and

permit her to seek leave to amend.

1Despite the Court’s screening obligation prior to ordering service, the Undersigned notes that

Defendant has filed a motion to dismiss for failure to state a claim. (ECF No. 5.)

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2 as part of the

statute, which provides in pertinent part:

(2) 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 . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

2Formerly 28 U.S.C. § 1915(d).

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

II.

Plaintiff’s Complaint contains the following allegations, restated here verbatim:

My co-worker Anthony Shutts insulted me over a specememt at the nursing

station, but my nurse manager fired me and keep him on the job.

By way of relief, the Complaint requests the following, again restated verbatim:

I just want the court to allow me a pro se complaint so that justise can be remded.

I have been discriminated against not only because I am a woman but for being

black also.

(ECF No. 1-1 at 3, 4.)

The nature of Plaintiff’s claim is not clearly stated. Construing her pro se

Complaint liberally, however, it appears that Plaintiff may be attempting to bring a Title

VII claim for employment discrimination on the basis of race or gender.

Title VII prohibits “employer discrimination on the basis of race, color, religion, sex, or

national origin, in hiring, firing, salary structure, promotion and the like.” Univ. of Texas Sw.

Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (citing 42 U.S.C. § 2000e–2(a)). In Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002), the United States Supreme Court held that in the

discrimination context, a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), “is an evidentiary standard, not a pleading requirement” and that “the ordinary rules

for assessing the sufficiency of a complaint apply.” Id. at 510. The Court must therefore apply

the “plausibility standard in Twombly and Iqbal for assessing whether a complaint's factual

allegations support its legal conclusions.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir.

2012) (citations omitted).

Applying the foregoing authority here, the undersigned concludes that Plaintiff has failed

to allege facts from which this Court could “draw the reasonable inference,” Iqbal, 556 U.S. at

678, that Defendant is liable for violating Title VII. In order to show a prima facie case of

discrimination under Title VII, Plaintiff must establish that she was a member of a protected

class, she has suffered an adverse employment action, she was qualified for the position, and she

was replaced by a person outside the protected class or was treated differently than similarly-

situated, non-protected employees. Briggs v. Univ. of Cincinnati, 11 F.4th 498, 508 (6th Cir.

2021). Here, while Plaintiff alleges her membership in a protected class, she offers nothing

beyond conclusory allegations suggesting that she suffered an adverse employment action

because of her membership in such a class or that she was treated less favorably than a similarly

situated individual outside the protected class. That is, absent from Plaintiff’s Complaint are any

factual allegations suggesting that her alleged treatment by her employer had anything to do with

her race or gender. See Turner v. Citi, No. 2:20-CV-00105-GFVT, 2020 WL 4516988, at *3

(E.D. Ky. Aug. 5, 2020) (“Vague allegations that one or more of the defendants acted wrongfully

or violated the plaintiff's constitutional rights are not sufficient to state a claim for relief.”).

Also lacking is any explanation as to how she and her co-worker were similarly situated. In

short, although Plaintiff alludes very broadly to discrimination on the bases of her race and

gender, she has alleged no facts sufficient to support a claim for discrimination on those bases.

Accordingly, Plaintiff has failed to state a claim for employment discrimination and her

Complaint is subject to dismissal. See Sam Han v. Univ. of Dayton, 541 F. App'x 622, 627 (6th

Cir. 2013) (upholding trial court's dismissal of employment discrimination pursuant to Rule

12(b)(6) where the plaintiff had failed to “plausibly show that the ... adverse employment

decision ... was a result of discrimination based upon his race or his gender,” explaining that the

“Court is not required to accept the inferences drawn by [the] [p]laintiff”); see Keys, 684 F.3d at

610 (stating that the plausibility standard “applies to causation in discrimination claims”).

Given that Plaintiff is proceeding without the assistance of counsel, however, it is

RECOMMMENDED that Plaintiff’s claim be DISMISSED WITHOUT PREJUDICE. If

Plaintiff believes she could amend her Complaint to assert a proper Title VII claim it is

RECOMMENDED that she be permitted to move for leave to do so within thirty days of any

Order adopting this Report and Recommendation.

Should Plaintiff seek leave to amend, she is cautioned that any Title VII claim ultimately

may still be subject to dismissal if she is not able to demonstrate that she timely exhausted her

administrative remedies prior to filing suit. Title VII plaintiffs are required to first file a charge

of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the

relevant state or local agency within 180 days after the alleged unlawful employment practice

occurred. 42 U.S.C. § 2000e-5(e)(1). Weston v. Sears, No. 2:22-CV-1650, 2022 WL 1016703, at

*2 (S.D. Ohio Apr. 5, 2022), report and recommendation adopted, No. 2:22-CV-1650, 2022 WL

2134978 (S.D. Ohio June 14, 2022). Only after receiving notice that the EEOC will not take

further action on the discrimination charge (commonly referred to as a “right-to-sue” notice) may

a plaintiff commence a Title VII claim in federal court. 42 U.S.C. § 2000e-5(f)(1). Id. Further,

any federal action must be commenced within 90 days after the right-to-sue notice is issued.

Id. Although exhaustion of administrative remedies is not a jurisdictional prerequisite to filing a

Title VII claim, see Adamov v. U.S. Bank Nat. Ass'n, 726 F.3d 851, 855–56 (6th Cir. 2013), a

defendant may raise failure to exhaust administrative remedies as an affirmative defense. Id.

(citing See Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008)).

III.

For the reasons set forth above, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). It

is FURTHER RECOMMENDED that if Plaintiff believes she can remedy the deficiencies

identified in this Report and Recommendation, she be permitted to move for leave to file an

Amended Complaint within THIRTY DAYS of any Order adopting this Report and

Recommendation. Additionally, it is RECOMMENDED that Defendants’ Motion to Dismiss

be DENIED WITHOUT PREJUDICE for having been prematurely filed.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

IT IS SO ORDERED.

/s/ Elizabeth A. Preston Deavers______

DATED: August 17, 2022 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE