Gary v. Milwaukee Cnty. Behavioral Health Div.
| Decision Date | 19 January 2012 |
| Docket Number | Case No. 12-C-22 |
| Parties | SHERIKA LATRICE GARY, Plaintiff, v. MILWAUKEE COUNTY BEHAVIORAL HEALTH DIVISION, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
On January 6, 2012, Sherika Lattice Gary ("Gary"), proceeding pro se, filed a complaint against the defendant. Accompanying the plaintiff's complaint was a motion to proceed in forma pauperis. (Docket No. 2.) The plaintiff has consented to the full jurisdiction of a magistrate judge, (Docket No. 3), and therefore this court must now resolve the plaintiff's motion to proceed in forma pauperis.
Based upon the financial information contained in the plaintiff's motion, the court concludes that the plaintiff lacks the resources to pay the filing fee. Accordingly, the plaintiff's motion to proceed in forma pauperis shall be granted. However, this is only half of the court's inquiry.
Congress sought to ensure that no citizen would be denied the opportunity to commence a civil action in any court of the United States solely due to poverty. Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)). However, Congress also 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." Id. (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). In order to balance these competing concerns, before the court can allow the plaintiff to proceed in forma pauperis, the court is obligated to determine that the plaintiff is unable to pay the $350.00 filing fee and that this case (1) is not frivolous or malicious, (2) does not fail to state a claim upon which relief may be granted, and (3) does not seek monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Thus, although "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), a pro se complaint must meet these minimal standards before the court shall grant a plaintiff leave to proceed in forma pauperis.
First, a claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton, 504 U.S. at 31; Neitzke, 490 U.S. at 325. Although factual allegations must be weighed in favor of the plaintiff, this does not mean that the court is required to accept without question the truth of the plaintiff's allegations. Denton, 504 U.S. at 32. Thus, a court may dismiss a claim as frivolous if it is "clearly baseless," "fanciful," "fantastic," "delusional," "irrational," "wholly incredible," or "based on an indisputably meritless legal theory." Id. at 32-33. A court may not dismiss a claim as frivolous simply because "the plaintiff's allegations are unlikely." Id.
Second, a claim might not be frivolous or malicious but nonetheless fail to state a claim upon which relief may be granted and therefore be subject dismissal. In determining whether or not a complaint is sufficient to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies the same well-established standards applicable to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Although the allegations in acomplaint need not be detailed, a complaint Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks, citation, and brackets omitted). The complaint must be sufficiently detailed "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (quotation marks and ellipses omitted).
If the complaint contains well-pleaded non-frivolous factual allegations, the court should assume the veracity of those allegations and "then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. With the standards set forth in 28 U.S.C. § 1915(e)(2) in mind, the court turns to the allegations raised in the plaintiff's complaint.
According to her complaint, Gary began working for the defendant on about August 22, 2011 and shortly after starting she witnessed "patient abuse." (Docket No. 1 at 3.) She reported what she observed, although she does not indicate to whom she reported her observations. (Docket No. 1 at 3.) This led to Gary's co-workers "harassing" her by asking her questions, making negative remarks, and calling her names to other employees. (Docket No. 1 at 3.) Gary reported this to her supervisor and when the harassment continued, the supervisor held a meeting with some of Gary's co-workers. The supervisor urged all to work as a team, but the problems continued. Gary alleges that she was called a "snitch" and received comments such as "You will not be working here long." (Docket No. 1 at 3.)
On October 5, 2011, another employee "started making . . . negative remarks" and asked Gary about the incident she reported. (Docket No. 1 at 3.) Two weeks later, Gary learned she was being investigated for "workplace violence." (Docket No. 1 at 3-4.) On October 16, 2011, Gary was asked to make a witness statement, and the following day her "keys and badge were taken." (Docket No. 1 at 4.)
Gary believes that in retaliation for her reporting "patient abuse," her co-workers conspired to fabricate allegations of wrongdoing against her in order to get her fired. At the very end of her complaint, Gary also states, "I feel that I am also being discriminated by my age." (Docket No. 1 at 5.) Gary seeks damages for wrongful termination, slander, and pain and suffering. (Docket No. 1 at 6.) Attached to her complaint is an EEOC "right to sue" letter and complaint wherein Gary alleges that she was terminated in retaliation for opposing discriminatory practices. (Docket No. 1-2.)
Because the plaintiff is proceeding without the benefit of counsel, it is the court's obligation to liberally construe her complaint. Nonetheless, the court cannot rewrite a complaint and must refrain from acting like an attorney on an initial consultation with a prospective client by trying to search out any possible plausible claim for relief out of the facts presented. Having thoroughly reviewed the plaintiff's complaint, the court understands that the plaintiff might be attempting to allege one of three possible federal causes of action.
Wisconsin follows the general notion of employment at will, meaning that aside from a few narrow exceptions, employees without employment contracts may generally be legally terminated for any or no reason. Bammert v. Don's Super Valu, 2002 WI 85 ¶¶8-9, n.3, 254 Wis. 2d 347, 646 N.W.2d 365 (2002). Exceptions to the general employment at will doctrine include discrimination on the basis of race, color, sex, or national origin under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(a)(1). Another exception is discrimination based upon age under the Age Discrimination in Employment Act ("ADEA"). 29 U.S.C. § 621(a)(1). Under either statutoryexception, not only is actual discrimination prohibited but so too is retaliation against an employee asserting his or her rights or assisting another in doing so. Abuelyaman v. Ill. State Univ., 2011 U.S. App. LEXIS 24616 (7th Cir. Dec. 13, 2011); Barton v. Zimmer, Inc., 2011 U.S. App. LEXIS 20982, *16-17 (7th Cir. Oct. 18, 2011).
In her complaint to the EEOC, Gary...
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