Mumin v. Clarke

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DUKHAN MUMIN, )

)

Plaintiff, )

)

v. ) No. 4:24-CV-01056 SRW

)

CHRIS CLARKE, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

Before the Court is the motion of Dukhan Mumin for leave to proceed in forma pauperis

in this civil action. [ECF No. 2]. After review of the financial information, the Court will grant

plaintiff’s motion. However, after reviewing the record in this matter, the Court will dismiss this

action pursuant to 28 U.S.C. § 1915(e)(2)(B).

Legal Standard on Initial Review

This Court is required to review a complaint filed in forma pauperis and must dismiss it if

it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490

U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does

not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007).

A claim is facially plausible when the plaintiff “pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although a plaintiff need

not allege facts in painstaking detail, the facts alleged “must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. This standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

Determining whether a complaint states a plausible claim for relief is a context-specific task that

requires the reviewing court to draw upon judicial experience and common sense. Id. at 679. The

court must assume the veracity of well-pleaded facts but need not accept as true “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678

(citing Twombly, 550 U.S. at 555).

District courts must liberally construe complaints filed by laypeople. Estelle v. Gamble,

429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” courts

should “construe the complaint in a way that permits the layperson’s claim to be considered within

the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone

v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints must allege facts

that, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286

(8th Cir. 1980). District courts are not required to assume facts that are not alleged, Stone, 364

F.3d at 914-15, or interpret procedural rules in a manner that excuses the mistakes of those who

proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

Related Case

According to publicly-available documents in a civil case plaintiff filed in the United States

District Court for the District of Nebraska, Mumin v. Mehta, et al., 8:24-CV-197 (D. Neb June 24,

2024), plaintiff was hired to work at a Popeye’s Chicken as a cook on or about August 6, 2022, at

61st and Ames Avenue in Omaha, Nebraska. On or about August 12, 2022, or approximately six

days into his employment, plaintiff was at work when an altercation occurred at the store between

one of the employees, Kara Conrad, and a female customer. Plaintiff claimed that he was sitting

in the dining area of the store at the time of the altercation, when Conrad allegedly grabbed a knife

and proceeded to come out from behind the counter and “accost” a female customer. Plaintiff

claims that he moved to intervene, stepped in between the two individuals, physically restrained

Conrad, convinced the customer to leave the store, and walked the customer out. Plaintiff alleged

that when he returned to the store, Conrad began screaming at him, and he then left the store and

reported the incident. However, on August 12, 2022, plaintiff was terminated from his employment

with Popeye’s. Plaintiff claimed that he was told that he was terminated because he refused to do

his training and was using the company phone to call friends and family. Id.

Plaintiff reported his termination to the United States Department of Labor, apparently

asserting that the termination was in violation of the Fair Labor Standards Act (FLSA). He then

filed a lawsuit, on March 8, 2023, in Douglas County Court in Nebraska against Ashina Mehta

(Human Resources Manager), Kara Conrad, Laura Shuster (District Manager), and Eat Out Now

d/b/a as Popeye’s Chicken. See Mumin v. Mehta et al., Case No. CI23-1763. In his complaint,

plaintiff alleged violations of the Fair Labor Standards Act, retaliatory discharge and negligence.

In October of 2023, plaintiff filed an amended complaint in Mumin v. Mehta et al., Case No. CI23-

1763, and he once again asserted similar claims for relief.

Popeye’s filed a motion to dismiss the amended complaint, which the Douglas County

District Court granted on December 14, 2023. Id. Mumin appealed to the Nebraska Court of

Appeals, but failed to timely file a brief and the court dismissed the case due to Mumin’s failure

to prosecute the appeal. The Nebraska Court of Appeals issued a Mandate to the Douglas County

District Court, which dismissed the case on April 15, 2024.

Despite the dismissal of plaintiff’s state case, he filed essentially the same case against

defendants Mehta, Conrad, Shuster and Popeye’s Chicken in the United States District Court for

the District of Nebraska, see Mumin v. Mehta, et al., 8:24-CV-197 (D. Neb June 24, 2024), on

May 30, 2024. Defendants filed a notice to the Court of the prior state court case on June 7, 2024.

And on June 27, 2024, the District Court dismissed plaintiff’s federal court action pursuant to res

judicata. Id.

The Complaint

Pro se plaintiff Dukhan Mumin, a resident of Nebraska, brings this action against

Department of Labor Investigator Chris Clarke, as well as the Department of Labor,1 asserting that

Clarke denied him “adequate investigation” into his retaliatory discharge claims. Plaintiff asserts

that Clarke failed to do his job at the Department of Labor and as a result, he was unable to pursue

claims against Popeye’s for the events in Mumin v. Mehta et al., Case No. CI23-1763 and Mumin

v. Mehta, et al., 8:24-CV-197 (D. Neb June 24, 2024).

Plaintiff seeks to recover damages and to have the Court order Clarke to properly

investigate his retaliatory discharge.

Discussion

Plaintiff indicates that he is suing defendants under Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). “An action under Bivens is almost identical to

an action under [42 U.S.C. §] 1983, except that the former is maintained against federal officials

while the latter is against state officials.” Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999).

As such, claims under Bivens and claims under § 1983 involve the same analysis. Solomon v.

Petray, 795 F.3d 777, 789 n.7 (8th Cir. 2015). The body of case law regarding § 1983 applies to

Bivens actions. Id. Additionally, the essence of a Bivens claim requires that a defendant be a

“federal actor.”

1Although plaintiff has named the Department of Labor as a defendant in this action, he has not made

specific claims against the Department of Labor.

The Court has considered whether the complaint states a valid claim under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and concludes it does

not. The complaint does not present a cause of action that the Supreme Court has previously

recognized under Bivens, and expanding Bivens is “now a ‘disfavored’ judicial activity.” Ziglar v.

Abbasi, 582 U.S. 120, 121 (2017) (quoting Iqbal, 556 U.S. at 675). Congress, not this Court, is

best suited to authorize a damages remedy for the claims plaintiff asserts. See Egbert v. Boule, 596

U.S. 482, 496 (2022).

Even if this case was the type for which a Bivens remedy was available, it would be

dismissed. As noted above, plaintiff sues the Department of Labor, and a Bivens action cannot be

prosecuted against a federal agency. See Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 812 (8th

Cir. 2008) (“Bivens allows for a cause of action for damages against federal officials, not federal

agencies, for certain constitutional violations”); Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir.

1998) (complaint against a government official in his official capacity is a suit against the United

States, and sovereign immunity precludes prosecution of a Bivens action against the United States);

Taylor v. Dir. Off. Info. Pol’y, No. 4:20-CV-308 DDN, 2020 WL 3971997, at *3 (E.D. Mo. July

13, 2020) (citation omitted) (“[§ 1983] does not authorize redress against federal agencies or

officials who were acting under color of federal law.”).

Additionally, like plaintiff’s case in the District of Nebraska, this Court must also find that

plaintiff’s Douglas County lawsuit bars the current lawsuit under the doctrine of res judicata.

Plaintiff included his FLSA claims within his Douglas County lawsuit which was dismissed on

December 14, 2023.2 Although defendant Chris Clarke was not included in plaintiff’s Douglas

2See C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763 64 (8th Cir. 2012) (affirmative defense

of res judicata can provide the basis for dismissal under Rule 12(b)(6) where it is apparent from the face of

the complaint, including public records embraced by the complaint); Valentine v. Brown, No. 8:18CV69,

County lawsuit, he stands in privity with those defendants.? And it is obvious that plaintiff is

attempting to do an end-run around the District of Nebraska’s dismissal of his prior case by

bringing the present action. The Court will not allow such an endeavor. Such a claim is frivolous

and malicious.

For the foregoing reasons, the Court concludes that the complaint fails to state a claim

upon which relief may be granted and will dismiss this case pursuant to 28 U.S.C. § 1915(e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma

pauperis [ECF No. 2] is GRANTED.

IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A separate

Order of Dismissal will be entered herewith.

IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in

good faith.

Dated this 2"4 day of August, 2024.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

2018 WL 5298742 (D. Neb. Oct. 25, 2018) (dismissing pro se plaintiff's complaint on the Court’s own

motion pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi) as barred by claim preclusion).

Whether two claims are the same for res judicata purposes depends on whether the claims arise out of

the same nucleus of operative fact or are based upon the same factual predicate.” Murphy v. Jones, 877

F.2d 682, 684-85 (8th Cir. 1989). That is, “a claim is barred by res judicata if it arises out of the same

nucleus of operative facts as the prior claim.” Banks vy. International Union Electronic, Elec., Technical,

Salaries and Machine Workers, 390 F.3d 1049, 1052 (8th Cir. 2004). A plaintiffs reliance “on different

substantive law and new legal theories does not preclude the operation of res judicata.” Lane v. Peterson,

899 F.2d 737, 744 (8th Cir. 1990). Rather, res judicata prevents a plaintiff from bringing a claim that “is

dressed up to look different,” and will bar a second claim based on “a new theory of recovery or...a new

body of law...if it is based on the same nucleus of operative facts.” Id.