United States District Court, W.D. Texas, Austin Division
ORLANDO M. GUTIERREZ
LAURA HORM, et al.
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is Orlando M. Gutierrez's Application to
Proceed In Forma Pauperis (Dkt. No. 4) and Financial
Affidavit in Support, along with his Complaint (Dkt. No. 3).
The District Court referred the above-motion to the
undersigned Magistrate Judge for a determination pursuant to
28 U.S.C. § 636(b) and Rule 1(c) of Appendix C of the
APPLICATION TO PROCEED IN FORMA PAUPERIS
reviewing Gutierrez's Application to Proceed In Forma
Pauperis, the Court finds that he is indigent. Accordingly,
the Court HEREBY GRANTS Gutierrez in forma pauperis status
and ORDERS his Complaint be filed without pre-payment of fees
or costs or giving security therefor pursuant to 28 U.S.C.
§ 1915(a)(1). This indigent status is granted subject to
a later determination that the action should be dismissed if
the allegation of poverty is untrue or the action is found
frivolous or malicious pursuant to 28 U.S.C. § 1915(e).
Gutierrez is further advised that although he has been
granted leave to proceed in forma pauperis, a Court may, in
its discretion, impose costs of court at the conclusion of
this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d
616, 621 (5th Cir. 1994).
stated below, this Court has conducted a review of the claims
made in Gutierrez's Complaint and is recommending his
claims be dismissed under 28 U.S.C. § 1915(e).
Therefore, service upon the Defendants should be withheld
pending the District Court's review of the
recommendations made in this report. If the District Court
declines to adopt the recommendations, then service should be
issued at that time upon the Defendants.
SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW
Standard of Review
Gutierrez has been granted leave to proceed in forma
pauperis, the Court is required by standing order to review
his Complaint under §1915(e)(2), which provides in
relevant part that “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. § 1915(e)(2).
complaints are liberally construed in favor of the plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The court must
“accept as true factual allegations in the complaint
and all reasonable inferences that can be drawn
therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.
1996); see also Watts v. Graves, 720 F.2d 1416, 1419 (5th
Cir. 1983). In deciding whether a complaint states a claim,
“[t]he court's task is to determine whether the
plaintiff has stated a legally cognizable claim that is
plausible, not to evaluate the plaintiff's likelihood of
success.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). “A claim
has facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. However, the petitioner's
pro se status does not offer him “an impenetrable
shield, for one acting pro se has no license to harass
others, clog the judicial machinery with meritless
litigation, and abuse already overloaded court
dockets.” Farguson v. Mbank Houston N.A., 808 F.2d 358,
359 (5th Cir. 1986).
Title VII and ADA Claims
is alleging claims under Title VII and the Americans with
Disabilities Act (ADA) for discrimination based on his race,
gender, religion, and disability (unspecified). To bring a
claim “[u]nder Title VII . . . and the ADA, a plaintiff
must exhaust administrative remedies before pursuing
employment discrimination claims in federal court.”
Garcia v. Penske Logistics, L.L.C., 631 Fed.Appx. 204, 207
(5th Cir. 2015) (citing Taylor v. Books A Million, Inc., 296
F.3d 376, 378-79 (5th Cir. 2002)). The plaintiff must then
pursue and exhaust all administrative remedies prior to
filing suit. Id. Here, Gutierrez indicated that he
previously filed an EEOC complaint regarding these claims and
received a Notice of Right to Sue letter. Dkt. No. 3 at 5.
Gutierrez failed to attach this letter, but claimed that it
was sent to him on September 1, 2016. Id. Once a
claimant receives this notice, he has ninety days to file a
civil action. Taylor, 296 F.3d at 379; 42 U.S.C. §
2000e-5(f)(1). Assuming, as Gutierrez has indicated in his
Complaint, that he received his right-to-sue letter on
September 1, 2016, well more than ninety days have passed,
and his claims under both the ADA and Title VII are
Equal Pay Act
also asserts a claim under the Equal Pay Act. The Equal Pay
Act prohibits the discrimination “between employees on
the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays
wages to employees of the opposite sex.” 29 U.S.C.
§ 206(d)(1). Here, Gutierrez has not asserted that he
was paid less than an employee of the opposite sex; in fact,
he does not allege any ...