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Jody K. Butts v. Department of Labor & Industry

October 18, 2011

JODY K. BUTTS,
PLAINTIFF
v.
DEPARTMENT OF LABOR & INDUSTRY, RYAN HYDE, ASSISTANT DIRECTOR BVRS, OVR YORK PA KINGSTON RD., MRS. Z. MORRIS, MS. SUSAN NEWCOMER AND MAGRET MCKENNA/CAP ADVOCACY, DEFENDANTS



The opinion of the court was delivered by: Judge Jones

Magistrate Judge Smyser

REPORT AND RECOMMENDATION

The complaint in this discrimination case fails to state a claim upon which relied may be granted. The plaintiff was granted leave to file an amended complaint, but she failed to do so. So, we recommend that the complaint be dismissed and that the case file be closed.

I. Background and Procedural History.

The plaintiff, Jody K. Butts, commenced this action by filing a complaint. She also filed an application to proceed in forma pauperis.

The allegations of the complaint are not clear. The entire Statement of Claim Section of the complaint reads:

Discrimination of my Disabilitie and My Age - Work - Performance Keep me out work for a year 1/2 For Medical Records - Granted twice with with Funding NEVER - Gotten. Extra Doc. 1 at 2 (errors in original). The Request for Relief Section of the complaint reads:

There the only Place you Can get funding in York PA.

For, having Disabilitie. And, Councelor keep being Degrading. Legal Aide Attorney been Working with them Also Carolyn Sexton. 1/2 Also Doc. 1 at 2 (errors in original).

The plaintiff attached numerous documents to her complaint. Those documents deal with the plaintiff's requests for assistance in planning and funding a new business and the denial by the Pennsylvania Department of Labor & Industry, Office of Vocational Rehabilitation of those requests.

We granted the plaintiff's application to proceed in forma pauperis. We also reviewed the complaint in accordance with 28 U.S.C. § 1915(e)(2), and we determined that the complaint fails to state a claim upon which relief may be granted. Because the plaintiff had failed to set forth any theory of unlawful discrimination, we concluded that allowing the plaintiff to amend her complaint would be futile. So we recommended that the case be dismissed and the case file closed.

The plaintiff then filed a document requesting the appointment of counsel and indicating that she is claiming discrimination based on disability, age, and race. Judge Jones construed that document as both a motion for the appointment of counsel and as objections to the Report and Recommendation. On the basis of that document, Judge Jones rejected the Report and Recommendation and remanded the case to the undersigned. He noted that we should consider the plaintiff's motion for the appointment of counsel as well as whether to grant the plaintiff leave to file an amended complaint now that she has identified multiple theories of discrimination.

Upon remand, we conditionally granted the plaintiff's motion for the appointment of counsel. We ordered that Mr. Greecher, the pro bono chair of the Middle District Chapter of the Federal Bar Association, inform the court whether an attorney will enter his or her appearance on behalf of the plaintiff or, in the alternative, that no panel attorney accepts the appointment. We stated that we will defer deciding whether to order an amended complaint pending the entry of an appearance of counsel.

Mr. Greecher later informed us that a panel attorney will not be entering an appearance on behalf of the plaintiff. Because an attorney could not been found to represent the plaintiff in this case, we vacated the order conditionally granting the plaintiff's motion for the appointment of counsel. We also ordered the plaintiff to file an amended complaint that states a claim upon which relief may be ...


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