United States District Court, N.D. Alabama, Southern Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff Jessica T.
Foster's fourth motion to stay the proceedings while she
obtains an attorney to represent her. (Doc. 18). For the
reasons that follow, the court DENIES the
motion and WILL DISMISS this action
WITHOUT PREJUDICE for failure to state a
claim, as required by 18 U.S.C. § 1915(e)(2)(B)(ii).
background, Ms. Foster, proceeding pro se, filed
this employment discrimination lawsuit on March 18, 2019.
(Doc. 1). Her complaint does not describe any facts
underlying the complaint (see generally id.), but
she separately submitted a copy of the charge of
discrimination filed with Equal Employment Opportunity
Commission (“EEOC”), which sets out some factual
allegations, as well as the EEOC's notice of right to sue
(doc. 5). The magistrate judge to whom the case was assigned
granted Ms. Foster leave to proceed in forma
pauperis, but ordered her to file an amended complaint
correcting the deficiencies in her initial complaint. (Doc.
6). Ms. Foster did not file an amended complaint, and the
magistrate judge issued an order to show cause why the case
should not be dismissed for failure to prosecute. (Doc. 8).
Ms. Foster did not respond to that order. Accordingly, the
magistrate judge found that Ms. Foster's failure to
prosecute the case warranted dismissal, and he reassigned the
case to the undersigned. (Doc. 9).
after the reassignment of this case, Ms. Foster moved to stay
the proceedings while she sought to hire an attorney to
represent her. (Doc. 12). The court granted that motion and
stayed the case for thirty (30) days, notifying Ms. Foster
that if no attorney entered an appearance within that period,
the court would dismiss the case for failure to prosecute.
(Doc. 13). Within the thirty-day period, Ms. Foster filed her
second motion to stay the proceedings, stating that she had
not been able to obtain representation and seeking an
extension of the stay. (Doc. 14). The court granted that
motion as well, giving Ms. Foster another thirty (30) days to
obtain representation or file an amended complaint that
complies with the Federal Rules of Civil Procedure. (Doc.
15). The court notified Ms. Foster that if it did not receive
either an amended complaint or a notice of appearance from an
attorney, the court would dismiss the case for failure to
state a claim, as required by 28 U.S.C. § 1915(e)(2)(B),
and for failure to comply with this court's order.
(Id. at 2). The day before that deadline passed, Ms.
Foster filed her third motion to stay the case while she
sought an attorney. (Doc. 16). Again, the court granted the
motion, extending the stay for another thirty (30) days,
until August 29, 2019. (Doc. 17 at 1). The court directed Ms.
Foster to file an amended complaint, either through counsel
or pro se, by that deadline. (Id.). The
court notified Ms. Foster that if she did not file an amended
complaint, the court would dismiss the complaint for failure
to state a claim, as required by 28 U.S.C. §
deadline has passed and Ms. Foster did not file an amended
complaint. Instead, she has filed a fourth motion to stay the
case “indefinitely” while she seeks the
assistance of counsel. (Doc. 18). The court
DENIES the motion because this case has
already been stayed for over three months, during which time
Ms. Foster sought an attorney. The court does not find that
continuing the stay is in the interest of justice.
because Ms. Foster is proceeding in forma pauperis,
the court must screen her complaint as required by 28 U.S.C.
§ 1915(e)(2). Section 1915(e) requires the court to
dismiss the case “if the court determines that . . .
the action . . . fails to state a claim on which relief may
be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Dismissal under § 1915(e)(2)(B)(ii) is governed by the
same standard as a dismissal under Federal Rule of Civil
Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997). Under that standard, the court
must dismiss the case if the plaintiff fails to plead
“a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Rule of Civil Procedure 8 requires that “[a] pleading
that states a claim for relief must contain . . . (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief
sought.” Fed.R.Civ.P. 8(a). As mentioned above, Ms.
Foster's complaint sets out no facts to support her
claims of employment discrimination. (Doc. 1). However, the
charge that she filed with the EEOC states that a coworker
sexually harassed her daily, and that her complaints to
management of the company's owner resulted in
disciplinary actions, reduction in work, and other
retaliatory actions, and ultimately led to her termination.
(Doc. 5 at 4).
court liberally construes a pro se litigant's
allegations. Boxer X v. Harris, 437 F.3d 1107, 1110
(11th Cir. 2006). And the Eleventh Circuit has held that a
pro se plaintiff's filing of an EEOC charge can
satisfy “the ‘short and plain statement'
requirement of Rule 8(a)(2).” Judkins v. Beech
Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir. 1984).
Thus, the court will not dismiss her complaint for failure to
provide adequate factual allegations. However, neither Ms.
Foster's complaint nor her EEOC charge contain any
indication of what relief she seeks. See Goldsmith v.
City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993)
(finding that a pro se plaintiff's filing, which
consisted of a right to sue letter and a signed memorandum
describing the factual basis for her claim, was nonetheless
deficient because it did not contain “a single
reference to any requested relief which would satisfy the
minimal requirements of Rule 8(a)(3)”). And a statement
of the relief sought is just as much a requirement to state a
claim as a statement of the factual allegations underlying
the claim. See Fed. R. Civ. P. 8(a).
the magistrate judge and this court have repeatedly ordered
Ms. Foster to file an amended complaint that sets out, among
other things, the relief she seeks. (See Doc. 6 at
3; Doc. 15 at 3; Doc. 17 at 2). Ms. Foster has not done so,
and the court may not “rewrite an otherwise deficient
pleading [by a pro se litigant] in order to sustain
an action.” GJR Investments, Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Ashcroft v. Iqbal, 556
U.S. 662 (2009). Accordingly, the court finds that Ms.
Foster's complaint fails to state a claim upon which
relief may be granted, and the court must dismiss her suit.
See 28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly,
the court WILL DISMISS the case for failure
to state a claim, as required by 28 U.S.C. §
court will enter a separate order consistent with this