United States District Court, S.D. Alabama, Southern Division
TINA J. CARSON, Plaintiff,
EEOC HEADQUARTERS, Defendant.
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the amended Motion to Proceed
Without Prepayment of Fees filed by Plaintiff Tina J. Carson.
(Doc. 4). This case was referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and General Local Rule 72(a)(2)(R) for appropriate action.
Because Plaintiff has brought her action against a party who
is immune from suit for monetary damages, the Equal
Employment Opportunity Commission (“EEOC”), it is
recommended that Plaintiff's motion be denied and
Plaintiff's complaint be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii) prior to service of process.
December 27, 2018, Plaintiff, proceeding pro se,
filed this action against the “EEOC Headquarters”
seeking recovery of money Plaintiff claims she is owed. (Doc.
1). Plaintiff alleges that she filed a claim with the EEOC in
Mobile on June 2, 2016 against her employer, World Marine
LLC, for sexual harassment. (Id. at p. 2). According
to Plaintiff's complaint, she gave a statement to Mrs.
Price, presumably an employee of the EEOC, on that date and
was told she didn't have a case. (Id.). However,
Plaintiff avers, the EEOC filed her claim without telling her
and received a large settlement from her employer that they
“divided amongst themselves and spent it behind [her]
back and didn't give [her] any of it.”
(Id.). She states that the EEOC sent her a
“dismissal letter” in December 2016 and failed to
tell her about the money or give her any of it. (Id.
at p. 3). Plaintiff claims that she did not hear about the
alleged settlement with her employer until June 2017.
(Id.). Although Plaintiff's complaint does not
set forth a separate claim for relief, it appears that
Plaintiff seeks only monetary relief.
for granting Plaintiff permission to proceed without
prepayment of fees and costs is found at 28 U.S.C. §
(a)(1) Subject to subsection (b), any court of the United
States may authorize the commencement, prosecution or defense
of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes
a statement of all assets such [person] possesses [and] that
the person is unable to pay such fees or give security
therefor. Such affidavit shall state the nature of the
action, defense or appeal and affiant's belief that the
person is entitled to redress.
U.S.C. § 1915(a)(1); see Troville v. Venz, 303
F.3d 1256, 1260 (11th Cir. 2002) (affirming the application
of § 1915's provisions to a non-prisoner's
complaint). “The in forma pauperis statute, 28
U.S.C. § 1915, ensures that indigent persons will have
equal access to the judicial system.” Attwood v.
Singletary, 105 F.3d 610, 612-613 (11th Cir. 1997)
(citing Coppedge v. United States, 369 U.S.
438, 446 (1962)). The opportunity to proceed as an indigent
in civil cases, created by statute, is not considered a right
but a privilege, Rivera v. Allin, 144 F.3d 719, 724
(11th Cir.), cert. dismissed, 524 U.S. 978 (1998),
and “should not be a broad highway into the federal
courts[, ]” Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984). Thus, “a trial court has
broad discretion in denying an application to proceed in
forma pauperis under 28 U.S.C.A. § 1915, [but] must
not act arbitrarily and it may not deny the application on
erroneous grounds.” Pace v. Evans, 709 F.2d
1428, 1429 (11th Cir. 1983) (citing Flowers v. Turbine
Support Division, 507 F.2d 1242, 1244 (5th Cir. 1975));
see also Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1306 & 1306-07 (11th Cir. 2004) (“[A] trial
court has wide discretion in denying an application to
proceed IFP under 28 U.S.C. § 1915. . . . However, in
denying such applications a court must not act arbitrarily.
Nor may it deny the application on erroneous
order to authorize a litigant to proceed in forma
pauperis, the court must make two determinations: first,
whether the litigant is unable to pay the costs of commencing
this action; and second, whether the action is frivolous or
malicious.” Boubonis v. Chater, 957 F.Supp.
1071, 1072 (E.D. Wis. 1997) (citing 28 U.S.C. § 1915(a)
& (e)(2)(B)(i)). Although Plaintiff's motion to
proceed without paying a filing fee remains incomplete and
inconsistent, the Court need not reach a determination on the
issue of whether she is unable to pay the costs of commencing
this action because a review of her complaint reveals that
she cannot meet the second element of the in forma
pauperis equation. Section 1915(e)(2) of the United
States Code provides that, in a civil action in which the
plaintiff is proceeding in forma pauperis,
“the court shall dismiss the case at any time if the
court determines that … the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
complaint fails to state a cognizable claim, even under the
liberal construction applied to pro se pleadings. It
is well established that “[a]bsent a waiver, sovereign
immunity shields the Federal Government and its agencies from
suit.” Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486
U.S. 549, 554 (1988); Fed. Hous. Admin. v. Burr, 309
U.S. 242, 244 (1940)). In this case, Plaintiff is suing the
EEOC, a federal agency, for what appears to be claims based
on fraud and/or misappropriation of funds. Because
“there is no evidence in the record that the EEOC
waived sovereign immunity, ” Plaintiff is precluded
from bringing suit against the EEOC. Reeves v. DSI Sec.
Serv., 331 Fed.Appx. 659, 661 (11th Cir.
2009); see also Bush v. U.S. Equal Emp't Opportunity
Comm'n, No. 6:18-cv-529-Orl-18TBS, 2018 WL 3719317,
at *2 (M.D. Fla. Apr. 12, 2018) (dismissing action against
the EEOC for its alleged failure to pursue claim against
plaintiff's employer on grounds that EEOC is immune from
suit for damages); Humphrey v. Napolitano, No.
11-20651-CIV, 2011 WL 4527451, at *3 (S.D. Fla. Sept. 28,
2011) (dismissing claims against EEOC based on its
investigation and determination of complaint against
plaintiff's employer because “sovereign immunity
bars claims against the EEOC”).
the EEOC is immune from a suit seeking only monetary relief,
it is RECOMMENDED that Plaintiff's
Motion to Proceed Without Prepayment of Fees (Doc. 4) be
DENIED and Plaintiff's complaint (Doc.
1) be DISMISSED, prior to service.
OF RIGHT TO FILE OBJECTIONS
of this report and recommendation shall be served on
Plaintiff in the manner provided by law. Any party who
objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(2), S.D. Ala. Gen. LR 72(c). The parties should note
that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific
finding or recommendation to which ...