Guy v. Spader Freight Servs., Case No. 3:14 CV 119
| Decision Date | 02 July 2014 |
| Docket Number | Case No. 3:14 CV 119 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | ROOSEVELT GUY, Plaintiff, v. SPADER FREIGHT SERVICES, Defendant. |
Pro se Plaintiff Roosevelt Guy filed the above-captioned action under Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. §§ 1981, 1983, 1985 and 1986 against his former employer, Spader Freight Services ("Spader Freight") on behalf of himself and his dependants, K.S., D.G., D.G., and B.G. In the Complaint, Plaintiff alleges he was terminated from his employment on the basis of his race. He seeks monetary damages.
Plaintiff also filed an Application to Proceed In Forma Pauperis. That Application is granted.
Plaintiff was employed by Spader Freight as a tractor trailer operator. Spader Freight scheduled a Department of Transportation physical for Plaintiff on September 12, 2012 at ProMedica Occuhealth in Toledo, Ohio. Prior to the appointment, Plaintiff was selected for random drug and alcohol testing. He claims Spader Freight did not notify him of the drug and alcohol testing prior to the appointment. When he arrived for his appointment, he was notified by ProMedica Occuhealth that a drug and alcohol test had been ordered for him. Plaintiff states he wasunable to reach his supervisor to confirm the order. He refused to take the test without confirmation from his employer, and left ProMedica Occuhealth. Thereafter, he was able to speak with Spader Freight's Safety Director, Steve Schwiebert. Mr. Schwiebert confirmed Plaintiff had been selected for random drug testing. Plaintiff questioned why he was not notified by the company and Mr. Schwiebert indicated the company was under no obligation to inform him in advance of the testing. He then informed the Plaintiff that leaving the testing facility without submitting to the test was grounds for immediate termination of employment. Plaintiff was told not to report to his next loading site because he was fired.
Plaintiff asserts six causes of action. First he contends Spader Freight deprived him of the right to make and enforce contracts due to his race, in violation of 42 U.S.C. § 1981(a). Second, he claims Spader Freight intentionally discriminated against him on the basis of his race by withholding notification of his selection for random drug and alcohol testing, in violation of 42 U.S.C. § 1981a. Third, he claims Spader Freight violated 49 C.F.R. § 40.27 by requiring him to sign a consent and release form in connection with drug and alcohol testing. Fourth, he claims Spader Freight conspired with ProMedica Occuhealth to violate his civil rights in violation of 42 U.S.C. § 1985(3). Fifth, Plaintiff asserts he is entitled to damages under 42 U.S.C. § 1986. Finally, Plaintiff claims he was terminated from his employment on the basis of race in violation of Title VII.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon whichrelief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the defendant unlawfully harmed me accusation." Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a complaint, the Court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998)
As an initial matter, Plaintiff cannot bring claims on behalf of the individuals he lists as dependants. In general, a party may plead and conduct his or her case in person or through a licensed attorney. See 28 U.S.C. § 1654; Eagle Associates v. Bank of Montreal, 926 F.2d 1305,1308 (2d Cir. 1991).1 An adult litigant who wishes to proceed pro se must personally sign the complaint to invoke this court's jurisdiction. See 28 U.S.C. § 1654; Steelman v. Thomas, No. 87-6260, 1988 WL 54071 (6th Cir. May 26, 1988). A minor child must appear through counsel and cannot be represented by a non-attorney, even if the non-attorney is the child's parent. Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986); Lawson v. Edwardsburg Public School, 751 F.Supp. 1257 (W.D. Mich. 1990). Only Mr. Guy's signature appears on the pleading. There is no indication that he is a licensed attorney authorized to represent the individuals he identifies as his dependents. Consequently, the only claims properly before this court are those of Roosevelt Guy. This court will address only those claims.
Plaintiff first claims Spader Freight deprived him of his right to make and enforce contracts because of his race, in violation of 42 U.S.C. § 1981. Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
To state a prima facie case under § 1981(a), the plaintiff must allege facts to suggest: (1) he was a member of the protected class, (2) he sought and was qualified for a contract or the renewal of hiscontract, (3) he was rejected, and (4) the contract or business was awarded to non-minority dealers. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.1992). Plaintiff indicates he is African American which satisfies the first element; however, he fails to allege facts to suggest a contract was at issue. He does not allege he had a contract or was attempting to negotiate a contract, with whom he had that contract, or that Spader Freight interfered with Plaintiff's ability to obtain or retain that contract. He fails to meet the basic pleading requirements for a claim under § 1981(a).
Plaintiff also fails to assert a claim under 42 U.S.C. § 1983. To establish a prima facie case under 42 U.S.C. § 1983, plaintiff must assert that a person acting under color of state law deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Generally to be considered to have acted "under color of state law," the person must be a state or local government official or employee. A private party may be found to have acted under color of state law to establish the first element of this cause of action only when the party "acted together with or ... obtained significant aid from state officials" and did so to such a degree that its actions may properly be characterized as "state action." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she exercises powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974).
Spader Freight is a private corporation, not a state government entity. Plaintiff does not allege the company received significant aid from a state government official or a state agency when it terminated his employment for refusing to take the drug and alcohol test. Although the testing was to be conducted on the order of the Department of Transportation, that agency is a part of theexecutive branch of the Untied States government. It is not a state agency. Spader Freight did not act under color of state law, and 42 U.S.C. § 1983 does not apply.
Plaintiff also claims Spader Freight conspired with ProMedica Occuhealth to deprive him of "substantial rights." (Doc. No. 1 at 4). To state a claim for conspiracy to deprive a person of equal protection under the law pursuant to 42 U.S.C. § 1985, a plaintiff must allege: (1) a conspiracy of two or more persons; (2) with the purpose to deprive, directly or indirectly, a person or class of persons of equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) which causes injury to the person or property of plaintiff or deprivation of any right or privilege of a citizen of the United States. Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir.2003) (citing United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983)). The acts that allegedly "deprived the plaintiff of equal protection must be the result of class-based discrimination." Id. (citing Newell v. Brown, 981 F.2d 880, 886 (6th Cir.1992)).
A plaintiff fails to state an adequate claim under § 1985 if his allegations are premised upon mere conclusions and opinions. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987...
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