United States District Court, N.D. Texas, Dallas Division
DAMION D. FLOWERS, Plaintiff,
ADVANTAGE RESOURCES, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Damion D. Flowers's pro se, ostensibly
employment-related action has been referred to the
undersigned United States magistrate judge for pretrial
management under 28 U.S.C. § 636(b) and a standing order
of reference from United States District Judge David C.
Godbey. The Court granted Mr. Flowers leave to proceed in
forma pauperis (“IFP”) and issued a notice
of deficiency regarding the complaint as filed [Dkt. No. 7]
(the “NOD”). And he responded to the NOD by
filing an amended complaint. See Dkt. Nos. 13 &
14. The undersigned now enters these findings of fact,
conclusions of law, and recommendation that, for the reasons
explained below, the Court should dismiss this action with
Flower's original complaint alleged, in full,
“Racial discrimination and discrimination. ... Reason
I'm unemployed and can't work 2 surgeries. Ran into
by a 18 wheeler. Another car accident.” Dkt. No. 2 at
1-2. And it included a Notice of Right to Sue issued by the
Equal Employment Opportunity Commission (“EEOC”).
See Id. at 3-5. This filing prompted the undersigned
to issue the NOD, which informed Mr. Flowers:
This order is entered to notify Plaintiff of certain
deficiencies in the complaint as filed that must be remedied
no later than April 22, 2019 to allow this
action to proceed.
The Court further notifies Plaintiff that failure to comply
with this order by filing an amended complaint will result in
a recommendation that this action be dismissed. See
Fed. R. Civ. P. 41(b).
As filed, Plaintiff's complaint consists of a Notice of
Right to Sue issued by the Equal Employment Opportunity
Commission and alleges “Racial discrimination and
discrimination” but lacks facts to support a claim of
discrimination, instead asserting that Plaintiff cannot work
because he was in an automobile accident. See Dkt.
No. 2. The complaint does not therefore comply with the
applicable pleading standards.
Federal Rule of Civil Procedure 8(a) requires that a
plaintiff's complaint “must contain” “a
short and plain statement of the grounds for the court's
jurisdiction”; “a short and plain statement of
the claim showing that the pleader is entitled to relief; and
a demand for the relief sought, which may include relief in
the alternative or different types of relief.”
In this regard, the Court notifies Plaintiff that, under
Federal Rule of Civil Procedure 8(a)(2), a complaint need not
contain detailed factual allegations, but a plaintiff must
allege more than labels and conclusions, and, while a court
must accept all of the plaintiff's allegations as true,
it is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a
threadbare or formulaic recitation of the elements of a cause
of action, supported by mere conclusory statements, will not
suffice. See id.
Instead, to survive dismissal, a plaintiff must “plead
facts sufficient to show” that the claims asserted have
“substantive plausibility” by stating
“simply, concisely, and directly events” that a
plaintiff contends entitle him or her to relief. Johnson
v. City of Shelby, Miss., 574 U.S.__, 135 S.Ct. 346, 347
(2014) (per curiam) (citing Fed.R.Civ.P. 8(a)(2)-(3), (d)(1),
And, because Plaintiff appears to be asserting a claim of
employment discrimination, the Court further advises him that
the prima facie elements of such a claim are that he
(1) is a member of a protected group; (2) was qualified for
the position at issue; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was
replaced by someone outside his protected group or was
treated less favorably than other similarly situated
employees outside the protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th
Cir. 2007) (citing Wheeler v. BL Dev. Corp., 415
F.3d 399, 405 (5th Cir. 2005)).
Regarding employment discrimination claims, the United States
Court of Appeals for the Fifth Circuit has cautioned that a
plaintiff need not make a showing of each prong of the prima
facie test at the pleading stage. See Raj v. La. State
Univ., 714 F.3d 322, 331 (5th Cir. 2013) (citing
Swierkiewicz v. Sorema N.A.,534 U.S. 506, 510-12
(2002)). “Raj, however, does not exempt a
plaintiff from alleging facts sufficient to establish the
elements of her claims.” Meadows v. City of
Crowley, 731 Fed.Appx. 317, 318 (5th Cir. 2018) (per
curiam) (citing Chhim v. Univ. of Tex. at Austin,
836 F.3d 467, 470 (5th Cir. 2016) (per curiam)
(“Although [the plaintiff] did not have to submit
evidence to establish a prima facie case of discrimination at