United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
a resident of Cincinnati, Ohio, brings this pro se
civil action against Frisch's alleging discrimination in
employment under Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e et seq. By separate Order issued this
date, plaintiff has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. This
matter is before the Court for a sua sponte review
of plaintiffs complaint to determine whether the complaint,
or any portion of it, should be dismissed because it is
frivolous, malicious, fails to state a claim upon which
relief may be granted or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
enacting the original in forma pauperis statute,
Congress recognized that a "litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see 28 U.S.C.
§§ 1915(e)(2)(B)(I). A complaint may be dismissed
as frivolous when the plaintiff cannot make any claim with a
rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990).
An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a
legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or "wholly incredible."
Denton v. Hernandez, 504 U.S. 25, 32 (1992);
Lawkr, 898 F.2datll99.
has also authorized the dismissal of complaints which fail to
state a claim upon which relief may be granted or which seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§1915 (e)(2)(B)(ii-iii). The
plaintiffs complaint must "give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Erickson v. Pardus, 551 U.S. 89, 93
(2007) (citations omitted); Wysong v. Dow Chemical
Co., 503 F.3d 441, 446 (6th Cir. 2007). The complaint
must also provide "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).
complaint alleges the following statement of facts:
After being refused time off & vacations. August 13, 2015
I refused to push back my vacation again for about the six
time I was fired. My two week vacation was supposed to start
August 17, 2015.
Witnesses, Manager Harold, Chris, Diana & every employee
for the last several years. It was not pushed back or not
giving. I've had knife's ran down my back, I've
been punch in my face. No one fired.
(Doc. 1, Complaint at 2-3). Plaintiff seeks monetary relief.
(Id. at 3).
case, plaintiffs complaint fails to state a claim of
employment discrimination under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq. Title VII
prohibits "employer discrimination on the basis of race,
color, religion, sex, or national origin, in hiring, firing,
salary structure, promotion and the like." Univ. of
Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2523
(2013) (citing 42 U.S.C. § 2000e-2(a)). Plaintiff fails
to allege any facts from which the Court could reasonably
infer that he was discriminated against on the basis of his
race, age, sex, disability, or any other protected
characteristic. Iqbal, 556 U.S. at 678. Instead,
plaintiffs complaint, liberally construed, alleges he was
terminated when he refused to delay his vacation.
the allegations contained in the EEOC charge of
discrimination, which is attached to the complaint, are
considered part of plaintiff s complaint, plaintiff does not
allege any facts to permit the Court to plausibly infer that
he was terminated because he is a member of a protected
group. The EEOC charge of discrimination alleges that
plaintiff is African American. The charge states, "On
August 13, 2015, Diane (LNU), Caucasian, Manager, retaliated
and released me from my assignment, which I believe was due
to my race." (Doc. 1, PAGEID #:8). The charge further
states that "[management is responsible for the above
actions" and "I believe I have been discriminated
and retaliated against because of my race, in violation of
Title VII of the Civil Rights Act of 1964, as amended."
(Id.). Plaintiffs assertion that the manager who
terminated him is Caucasian is not sufficient to support the
inference that defendant terminated plaintiff on account of
his race. Plaintiff has not alleged any other facts from
which the Court could plausibly infer that his termination
was somehow related to his race, such as facts indicating he
was treated less favorably than non-African American,
similarly situated employees. Although a complaint need not
contain "detailed factual allegations, " it must
provide "more than an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombfy, 550
U.S. at 555). See Sam Han v. Univ. of Dayton, 541
F.App'x 622, 627 (6th Cir. 2013) (upholding trial
court's dismissal of employment discrimination case
pursuant to Rule 12(b)(6) where the plaintiff failed to
allege facts from which a reasonable person could infer how
his race or gender factored into the employer's
employment decision); Anaissie v. Univ. of Cincinnati
Physicians, Inc., No. 1:15-cv-701, 2016 WL 695932, at *2
(S.D. Ohio Feb. 22, 2016) (allegations that plaintiff was of
Middle Eastern ancestry and was terminated despite performing
his duties capably were insufficient to allow plausible
inference that plaintiff was terminated due in part to his
national origin). Plaintiffs statement that he
"believefs]" he has "been discriminated and
retaliated against" because of his race is a legal
conclusion that is unsupported by any factual enhancement or
explanation. The Court need not accept plaintiffs factually
unsupported beliefs as true. In re Darvocet, Darvon,
& Propoxyphene Prod. Liab. Litig., 756 F.3d 917, 931
(6th Cir. 2014) ("The mere fact that someone believes
something to be true does not create a plausible inference
that it is true."). A pleading that offers "labels
and conclusions . .. will not do." Twombly, 550
U.S. at 555. Plaintiffs complaint does not include sufficient
facts to state a claim for relief for race discrimination.
the undersigned concludes that the complaint is subject to
dismissal for failure to state a claim upon which relief may