Opinion

Donald v. Kelloggs Jackson

Court
District Court, W.D. Tennessee
Filed
Oct 27, 2020
Cited by
0 cases
Authority
More cited than 29.7%

“We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”

How later courts described this case

  • “We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

JOSHUA D. DONALD, )

)

Plaintiff, )

)

VS. ) No. 20-1240-JDT-cgc

)

KELLOGGS JACKSON, ET AL., )

)

Defendants. )

)

ORDER DIRECTING PLAINTIFF TO COMPLY WITH 28 U.S.C. § 1915(a),

DISMISSING COMPLAINT, AND GRANTING LEAVE TO AMEND

On October 23, 2020, Plaintiff Joshua D. Donald, who is incarcerated at the Henderson

County Justice Center in Lexington, Tennessee, filed a pro se civil complaint against his former

employer, Kellogg Company.1 However, Plaintiff neglected to either pay the $400 civil filing fee

required by 28 U.S.C. §§ 1914(a)-(b) or submit a proper application to proceed in forma pauperis.2

Under the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b), a prisoner

bringing a civil action must pay the filing fee required by 28 U.S.C. § 1914(a). Although the

obligation to pay the fee accrues at the moment the case is filed, see McGore v. Wrigglesworth,

1 Donald names “Kelloggs Jackson” (a reference to the Kellogg facility in Jackson,

Tennessee, where he apparently was employed) and the “Kelloggs Corp. Office” as separate

Defendants. (ECF No. 1 at PageID 2.) The Court will refer to both, collectively, as Kellogg

Company.

2 Donald submitted an in forma pauperis affidavit, but it is missing the first page. (ECF

No. 2.) Because the missing page of the form is also the signature page, Donald’s document is

not signed. (ECF No. 2.)

114 F.3d 601, 605 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry,

716 F.3d 944, 951 (6th Cir. 2013), the PLRA provides the prisoner the opportunity to make a

“down payment” of a partial filing fee and pay the remainder in installments. § 1915(b)(2).

However, in order to take advantage of the installment procedures, the prisoner must properly

complete and submit to the district court, along with the complaint, both an in forma pauperis

affidavit and a copy of his trust account statement for the six months immediately preceding the

filing of the complaint. § 1915(a)(2). Plaintiff must provide the Court with the proper financial

documentation before pauper status can be granted.

The Court is required to screen prisoner complaints and to dismiss any complaint, or any

portion thereof, if the complaintC

(1) is frivolous, malicious, or fails to state a claim upon which relief may be

granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).

In assessing whether the complaint in this case states a claim on which relief may be

granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662,

677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied.

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). The Court accepts the complaint’s “well-

pleaded” factual allegations as true and then determines whether the allegations “plausibly suggest

an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal,

556 U.S. at 681). Conclusory allegations “are not entitled to the assumption of truth,” and legal

conclusions “must be supported by factual allegations.” Iqbal, 556 U.S. at 679. Although a

complaint need only contain “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), Rule 8 nevertheless requires factual allegations to make

a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S. at 555

n.3.

“Pro se complaints are to be held ‘to less stringent standards than formal pleadings drafted

by lawyers,’ and should therefore be liberally construed.” Williams, 631 F.3d at 383 (quoting

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt

from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989); see also Brown v. Matauszak, 415 F. App’x 608, 612, 613 (6th Cir. Jan. 31, 2011)

(affirming dismissal of pro se complaint for failure to comply with “unique pleading requirements”

and stating “a court cannot ‘create a claim which [a plaintiff] has not spelled out in his pleading’”

(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))).

Donald filed his complaint using the form for commencing actions pursuant to 42 U.S.C.

§ 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .

To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights

secured by the “Constitution and laws” of the United States (2) committed by a defendant acting

under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).

In his complaint, Donald alleges he developed a problem with “medical addiction,” by

which, presumably, he means an addiction to prescription drugs. (ECF No. 1 at PageID 2.) His

employer was informed, and he was given a leave of absence through Kellogg Company’s

employee assistance program. (Id.) Donald appears to state that he was first placed in an intensive

outpatient program (IOP) at Cumberland Heights, a clinic in Jackson, Tennessee; his employer

then was notified that he would be placed in an in-patient treatment program at Cumberland

Heights in Nashville, Tennessee. (Id.) However, Donald was released from in-patient treatment

after seven days “due to the insurance” and told to contact Cumberland Heights in Jackson so he

could go back to IOP treatment there. (Id. at PageID 2-3.) When he got in touch with Cumberland

Heights in Jackson, he was told someone would contact him with further instructions but no one

did. (Id. at PageID 3.) His advisor at Kellogg Company told him to seek another treatment center,

and Donald chose Pathways in Jackson. (Id.) When Donald went to Pathways on his scheduled

intake date, however, he was told he was at the wrong location; he was given another date on which

to return at the correct location. (Id.) Three of four days later, he received a notarized letter

advising him that he had been terminated from his job “due to the fact, I went to the wrong

Pathways location.” (Id.)

Donald alleges discrimination “[toward] my job status” and states that “[i]t has caused

emotional & tra[u]matic stress & financial strain . . . lost self esteem [regarding] this situation &

it has cause[d] me to consistently relapse & come to jail.” (Id.) He seeks $1 million in damages

“for each offense.” (Id. at PageID 4.)

Though he has used the § 1983 civil rights complaint form, Kellogg Company is not a

governmental entity but a private corporation. A plaintiff may not use § 1983 to “sue purely

private parties.” Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Only those

defendants whose actions are “fairly attributable to the State” may be sued under § 1983. Lugar

v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Collyer v. Darling, 98 F.3d 211, 231-32 (6th

Cir. 1997). Donald does not allege how the actions of Kellogg Company could be attributed to

the state and thus does not state a claim under § 1983.

Moreover, the basis for Donald’s claim of discrimination is not clear. He does not allege

that he was discriminated against because of his age or because of his “race, color, religion, sex,

or national origin,” one or more of which is required for a claim under the Age Discrimination in

Employment Act, 29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2, or the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-401, et seq. Donald also

does not allege he was discriminated against on the basis of a disability, which is required for a

claim under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. or the Tennessee

Disabilities Act, Tenn. Code Ann. § 8-50-103 et seq. He states only that he was fired after going

to the wrong Pathways location. That is not a sufficient allegation that his termination was based

on wrongful discrimination.

For these reasons, Donald’s complaint fails to state a claim on which relief may be granted

and is subject to dismissal.

The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint

to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944, 951 (6th

Cir. 2013); see also Brown v. R.I., 511 F. App’x 4, 5 (1st Cir. 2013) (per curiam) (“Ordinarily,

before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to

cure the deficiencies in the complaint must be afforded.”). Leave to amend is not required where

a deficiency cannot be cured. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) (“We agree

with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged

by amendment comports with due process and does not infringe the right of access to the courts.”).

In this case, the Court concludes that Donald should be given the opportunity to amend his

complaint.

Accordingly, Donald’s complaint is DISMISSED for failure to state a claim on which relief

can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend,

however, is GRANTED.

Donald is ORDERED to submit, within 21 days after the date of this order, on or before

November, 17, 2020, a properly completed and signed prisoner in forma pauperis affidavit and a

copy of his inmate trust account statement for the last six months. If he fails to comply within the

time specified, the Court will deny leave to proceed in forma pauperis, assess the entire $400 filing

fee3 from his trust account without regard to the PLRA’s installment procedures, and dismiss this

case without further notice.

In addition, Donald may file an amended complaint, also within 21 days, on or before

November 17, 2020. Donald is advised that an amended complaint will replace the original

complaint and must be complete in itself without reference to any prior pleadings. The text of the

amended complaint must allege sufficient facts to support each claim without reference to any

other document. The amended complaint must identify each defendant Donald intends to sue, set

forth the specific causes of action that are asserted against each defendant, allege sufficient facts

to support those claims, and state the relief sought. Any exhibits must be identified by number in

the text of the amended complaint and must be attached to the complaint. If Donald does not file

an amended complaint within the time specified, the Court will dismiss this case with prejudice in

its entirety, assess a strike pursuant to 28 U.S.C. § 1915(g) and enter judgment.

3 The civil filing fee is $350. See 28 U.S.C. § 1914(a). The Schedule of Fees set out

following the statute also requires the Court to collect an administrative fee of $50 for filing any

civil case. That additional $50 fee will not apply if Donald is granted leave to proceed in forma

pauperis.

The Clerk shall provide Donald with a copy of the prisoner in forma pauperis affidavit

form along with this order.

IT IS SO ORDERED.

s/ James D. Todd

JAMES D. TODD

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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