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Gutierrez v. Horm

United States District Court, W.D. Texas, Austin Division

June 1, 2018

ORLANDO M. GUTIERREZ
v.
LAURA HORM, et al.

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         Before 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 Local Rules.

         I. APPLICATION TO PROCEED IN FORMA PAUPERIS

         After 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).

         As 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.

         II. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW

         A. Standard of Review

         Because 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).

         Pro se 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).

         B. Title VII and ADA Claims

         Gutierrez 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 time-barred.[1]

         D. Equal Pay Act

         Gutierrez 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 ...


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