“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