United States District Court, W.D. Texas, Austin Division
ORLANDO M. GUTIERREZ
COURONNE COMPANY GLASS AND METAL, JOHNNY GONZALEZ AND NFN NLN
HONORABLE ROBERT PITMAN 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 inferenc e 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).
is alleging claims under Title VII and the Americans with
Disabilities Act (ADA) for discrimination based on his race,
gender, religion, and disability (schizophrenia). 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)).
“Exhaustion occurs when the plaintiff files a timely
charge with the EEOC and receives a statutory notice of right
to sue.” Taylor, 296 F.3d at 379. In the instant case,
Gutierrez claims he filed a charge of discrimination with the
EEOC on September 1, 2016, but also acknowledges that never
received a right-to-sue letter from the EEOC. Because
Gutierrez has failed to allege that he received a
right-to-sue letter or present evidence that such a letter
was issued, he has failed to exhaust his administrative
remedies and his case must be dismissed. See, e.g., Hall
v. Ouachita Parish Corr. Center, 2008 WL 724230, at *2
(W.D. La. Mar. 17, 2008) (dismissing Title VII claim for
failure to exhaust administrative remedies where plaintiff
did not offer evidence of a right-to-sue letter and did not
allege that he had received such a letter); Shabazz v.
Texas Youth Com'n, 300 F.Supp.2d 467, 471 (N.D. Tex.
2003) (same); Dao v. Auchan Hypermarket, 1995 WL
902483, at *2 (S.D. Tex. Dec. 5, 1995), aff'd 96 F.3d 787
(5th Cir. 1996) (dismissing ADA claim for failure to exhaust
where plaintiff did not allege that she filed a charge with
the EEOC or that she obtained a right-to-sue letter prior to
the undersigned notes that this is not the first lawsuit that
Gutierrez has filed. See Gutierrez v. Austin Community
College, 1:18-CV-155-LY (W.D. Tex. 2018); Gutierrez
v. Texas Mutual Ins., 1:18-CVV-257-LY (W.D. Tex. 2018);
Guteirrez v. LNU, 1:18-CV-279-LY (W.D. Tex. 2018);
Gutierrez v. Workforce Solutions, 1:18-CV-387-LY
(W.D. Tex. 2018); Guteirrez v. Horm et al,
1:18-CV-406-LY (W.D. Tex. 2018); Guteirrez v. Nordstrom
Domaine, 1:18-CV-416-LY (W.D. Tex. 2018). A court
possesses the inherent power “to protect the efficient
and orderly administration of justice, ” including
“the power to levy sanctions in response to abusive
litigation practices.” In re Stone, 986 F.2d
898, 902 (5th Cir. 1993). Id. In the Workforce