ORTIZ v. DEJOY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARK A. ORTIZ,

Plaintiff,

No. 24cv9218 (EP) (AME)

OPINION

LOUIS DEJOY, et al.,

Defendants.

PADIN, District Judge.

Pro se Plaintiff Mark A. Ortiz seeks to bring this action in forma pauperis (“IFP”) against

Defendants Louis DeJoy, the United States Postal Service (“USPS”) Postmaster General; Steve

Laird; and George Smith. D.E. 1 (‘Complaint” or “Compl.”). The Court construes Plaintiff's

Complaint to allege that Defendants’ requirement that he provide a medical note indicating “no

restrictions” as a condition to return to work constituted discrimination and retaliation under the

Rehabilitation Act, 29 U.S.C. § 701, et seg. Id. at 3. Plaintiff seeks back pay for the 32 weeks he

was purportedly precluded from working. /d. at 4.

For the reasons below, the Court will GRANT Plaintiff’s IFP application, D.E. 1-1, and

DISMISS the Complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. BACKGROUND

Plaintiff states that he underwent “OWCP! approved surgery” since June 7, 2022. D.E. 1-

4. He informed management of the pending surgery but was “denied reasonable accommodations,

such as light duty work, which was granted to others under similar circumstances.” Id.

' The Court understands this to mean the U.S. Department of Labor’s Office of Workers’

Compensation Programs.

Plaintiff also alleges that on August 13, 2023, he was told by management that he could

not return to work until he provided a medical note indicating “no restrictions.” Jd. Plaintiff was

put in a “non-pay/awol status.” Compl. at 3. He alleges that the foregoing actions constitute

discrimination and retaliation against him for his disability. D.E. 1-4.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission

(“EEOC”) on February 23, 2024, which was dismissed as untimely. Jd. He now seeks to bring

this action.

II. ANALYSIS

Pursuant to 28 U.S.C. § 1915, the Court may excuse a litigant from prepayment of fees

when the litigant “establish[es] that he is unable to pay the costs of his suit.” Walker v. People

Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Because Plaintiff sufficiently establishes

his inability to pay, the Court will GRANT his IFP application. See D.E. 1-1.

However, courts must review an IFP plaintiff's complaint and dismiss it if the action 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.” 28 U.S.C. § 1915(e)(2)(B). Because Plaintiff proceeds

pro se, the Court construes the Complaint liberally and holds it to a less stringent standard than

papers filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court, however, need

not “credit a pro se plaintiff's ‘bald assertions’ or ‘legal conclusions.”” Grohs v. Yatauro, 984 F.

The Court’s preliminary review pursuant to 28 U.S.C. § 1915 does not determine whether the

allegations in the Complaint would survive a properly supported motion to dismiss filed by

Defendants after service. See Richardson v. Cascade Skating Rink, No. 19-8935, 2020 WL

7383188, at *2 (D.N.J. Dec. 16, 2020) (‘[T]his Court recognizes [a] § 1915(e) screening

determination is a preliminary and interlocutory holding, subject to revision at any time prior to

entry of final judgment.”) (internal quotation marks omitted).

Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906

(3d Cir. 1997)).

Under the screening determination, complaints may also be dismissed for failure to state a

claim. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule

12(b)(6) standard to dismissal for failure to state claim under Section 1915(e)(2)(B)). To survive

dismissal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bel! Ail.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff's factual allegations “must be enough

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citation

omitted).

Even construed liberally, the Complaint fails to state a claim. For an “employee to make

out a prima facie case of discrimination under the Rehabilitation Act, the employee bears the

burden of demonstrating (1) that he or she has a disability, (2) that he or she is otherwise qualified

to perform the essential functions of the job, with or without reasonable accommodations by the

employer; and (3) that he or she was nonetheless terminated or otherwise prevented from

performing the job. The plaintiff must make a prima facie showing that reasonable

accommodation is possible.” Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).

Plaintiffs allegations are too threadbare and conclusory to state a claim. The Court cannot

discern what Plaintiff's job functions actually entail; what the link between his surgery and his

placement on “non-pay/awol status” is; or any timeline or details surrounding his inability to work

(for example, when was he told he could not come to work, what reason was given, what

communications exist between himself and management). Accordingly, the Court is unable to

discern a claim from the allegations as they are currently pled.

HI. CONCLUSION

For the reasons stated above, the Court will GRANT Plaintiff's IFP application, D.E. 1-1,

and DISMISS without prejudice Plaintiff's Complaint, D.E. 1. An appropriate Order

accompanies this Opinion. Plaintiff will have 45 days from the entry of the accompanying Order

to file an amended complaint.

952

Dated: October 15, 2024 Sbodgy abe

Evelyn Padin, U.S.D.J.