United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
v.
HOSE O WEAVER AND SON, Defendant.
REPORT AND RECOMMENDATION
P.
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
This
action is before the Court on Plaintiff's pro se
complaint (Doc. 1) and motion to proceed without prepayment
of fees and costs (Doc. 2). This matter has been referred to
the undersigned for pretrial disposition pursuant to 28
U.S.C. § 636(b)(1)(B) and General Local Rule
72(a)(2)(S). Because Diamond has requested leave to proceed
without prepayment of costs and fees (Doc. 2), this Court has
the obligation to undertake a review of his complaint
pursuant to the provisions of 28 U.S.C. § 1915(e). That
statute instructs courts to dismiss any action when it is
determined that an in forma pauperis applicant's
suit is “frivolous or malicious, ” “fails
to state a claim on which relief may be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(ii). Upon consideration of the pleadings, it is
recommended that this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because Plaintiff has failed to
allege that he exhausted his administrative remedies before
the EEOC, see id.[1]
BRIEF
BACKGROUND
On
October 28, 2019, the pro se Plaintiff filed a form
complaint for a civil case wherein he seeks damages and
requests that this Court “call a civil right[s] group
to investigate” purported discrimination by a putative
former employer, Hose O Weaver and Son. (See Doc. 1,
1, 3 & 4). Plaintiff suggests that his supervisor
(“Cowboy”) would send all “white driver[s]
out” but keep minority drivers “in.”
(See Id. at 4). Diamond does not identify the basis
for federal court jurisdiction; that is, he does specifically
checkmark the box for federal question jurisdiction or
diversity jurisdiction (id. at 3). Thereafter,
however, he does identify the basis for federal-question
jurisdiction as “discrimination” (id.)
and then goes on to fill out a portion of the diversity
jurisdiction “section, ” identifying himself as a
citizen of Alabama (id. at 3; see also Id.
at 4).[2]
DISCUSSION
Upon
liberally construing Plaintiff's complaint, as must be
done, [3] and because Diamond seeks damages and
requests that this Court “call a civil right[s] group
to investigate” the Defendant's discrimination, the
undersigned finds that Plaintiff is attempting to bring a
claim against Hose O. Weaver & Sons pursuant to Title VII
of the Civil Rights Act of 1964.
“'Before
instituting a Title VII action in federal district court, a
private plaintiff must file an [Equal Employment Opportunity
Commission (“EEOC”)] complaint against the
discriminating party and receive statutory notice from the
EEOC of [] h[is] right to sue the respondent named in the
charge.'” Burnett v. City of Jacksonville,
Florida, 376 Fed.Appx. 905, 906 (11th Cir. Apr. 27,
2010) (quoting Forehand v. Florida State Hosp. at
Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996)),
cert. denied, 562 U.S. 932, 131 S.Ct. 330, 178
L.Ed.2d 215 (2010). As the Eleventh Circuit in
Burnett went on to explain:
“[T]he purpose of this exhaustion requirement ‘is
that the [EEOC] should have the first opportunity to
investigate the alleged
discriminatory practices to permit it to perform its role in
obtaining voluntary compliance and promoting conciliation
efforts.'” Gregory v. Ga. Dep't of Human
Res., 355 F.3d 1277, 1279 (11th Cir. 2004) []. Finally,
“a plaintiff must generally allege in [his] complaint
that ‘all conditions precedent to the institution of
the lawsuit have been fulfilled.'” Jackson v.
Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th
Cir. 1982) (citing Fed.R.Civ.P. 9(c)).
Id. (emphasis supplied).
Here,
Diamond nowhere alleges that he filed a complaint with the
EEOC or that he was issued a right-to-sue letter prior to the
filing of the instant lawsuit. (See Doc. 1).
Moreover, Plaintiff certainly did not attach any documents to
his complaint or allege any facts suggesting that he had
exhausted his remedies with the EEOC. Instead, Plaintiff has
given every indication that he never approached the EEOC
regarding any alleged discrimination by Hose O. Weaver &
Sons and asked that administrative body to investigate the
Defendant, as should be the case in the first instance,
Burnett, supra, inasmuch as he has specifically
asked this Court to “call a civil right[s] group to
investigate” the Defendant (see Doc. 1, at 4).
Because
Diamond has failed to allege that he exhausted his
administrative remedies before the EEOC, he has improperly
instituted this action against Hose O. Weaver & Sons in
this Court. Accordingly, the undersigned recommends that the
Court dismiss this case without prejudice, prior to service,
in accordance with § 1915(e)(2)B)(ii).[4]
CONCLUSION
Based
upon the foregoing, it is RECOMMENDED that
this action be DISMISSED WITHOUT PREJUDICE,
prior to service of process, because Diamond has failed to
allege in his complaint that he exhausted his administrative
remedies before the EEOC as to the Defendant's alleged
discrimination. See Burnett v. City of Jacksonville,
Florida, 376 Fed.Appx. 905, 906-907 (11th Cir. Apr. 27,
2010) (upholding a district court's dismissal without
prejudice of a litigant's civil action alleging gender
discrimination and retaliation pursuant to Title VII for
failure to allege exhaustion of administrative remedies where
the district court afforded litigant the opportunity to
re-file to cure any defects).
NOTICE
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