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Jody K. Butts v. Department of Labor & Industry

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


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 granted. To assist the plaintiff, we set for the pleading standards under Federal Rule of Civil Procedure 8.

The amended complaint was due on or before September 27, 2011. The plaintiff has not filed an amended complaint. Nor has she requested an extension of time to file an amended complaint.*fn1

II. Pleading Standards.

"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The statement required by Rule 8(a)(2) need only give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). But more is required than labels, conclusions and a formulaic recitation of the elements of a cause of action. Id. "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to "show" such an entitlement with its facts." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, supra, 129 S.Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft, supra, 129 S.Ct. at 1949 (quoting Twombly, supra, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. But "a complaint need not pin plaintiff's claim for relief to a precise legal theory." Skinner v. Switzer, 131 S.Ct. 1289, 1296 (2011). Rule 8(a)(2) "requires only a plausible 'short and plain' statement of the plaintiff's claim, not an exposition of his legal argument." Id. The factual detail necessary to satisfy the standard will vary depending on the case. In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 320 n.18 (3d Cir. 2010).

A complaint filed by a pro se litigant is to be liberally construed and "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, supra, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

III. Discussion.

The court must dismiss a complaint filed by a plaintiff in forma pauperis if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

Mindful the we must construe the complaint liberally, we nevertheless conclude that the complaint fails to state a claim upon which relief may be granted. The complaint alleges discrimination in a conclusory manner, but it does not support the allegation of discrimination with facts. The complaint does not allege how each defendant discriminated against the plaintiff and on what basis each defendant did so. It does not allege any facts from which a reasonable inference could be drawn that the defendants illegally discriminated against the plaintiff. Nor does it provide the defendants with fair notice of what the plaintiff's claims are and of the grounds upon which those claims rest. Thus, the complaint should be dismissed in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii).

IV. Recommendations.

Because the complaint fails to state a claim upon which relief may be granted, we recommend that the court dismiss the complaint and close the case.

J. Andrew Smyser Magistrate Judge

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL NO. 1:11-CV-00597

(Judge Jones)

(Magistrate Judge Smyser)

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

NOTICE

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3 of the Rules of Court, M.D.Pa., which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


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