Cone v. Orrock

1

MATTHEW AARON CONE, Plaintiff, v. JULIA ORROCK, LUCA ORROCK, KENNETH ORROCK, BRENT BORRENSON, GEORGE GAZZOLA, Defendants.

No. 5:22-CV-05087-RAL

United States District Court, D. South Dakota, Western Division

April 4, 2023

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND 1915 SCREENING TO ALLOW PLAINTIFF TO FILE AMENDED COMPLAINT WITH EEOC MATERIALS ATTACHED

ROBERTO A. LANGE CHIEF JUDGE

Plaintiff Matthew Aaron Cone filed a pro se lawsuit alleging employment discrimination.^[1] See Doc. 1. Cone moves for leave to proceed in forma pauperis and has filed a financial affidavit. Doc. 2. Cone has also filed a motion for appointment of counsel. Doc. 3. This Court now screens Cone's complaint under 28 U.S.C. § 1915(e)(2).

I. Motion for Leave to Proceed In Forma Pauperis

A federal court may authorize the commencement of any lawsuit without prepayment of fees when an applicant submits an affidavit stating he or she is unable to pay the costs of the lawsuit. 28 U.S.C. § 1915(a)(1). “[I]n forma pauperis status does not require a litigant to demonstrate absolute destitution.” Lee v. McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000). But in forma pauperis status is a privilege, not a right. Williams v McKenzie, 834 F.2d 152,154 (8th Cir. 1987). Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma pauperis under § 1915 is committed to the sound discretion of the district court. Cross V. Gen Motors Corp., 721 F.2d 1152,1157 (8th Cir. 1983). After review of Cone's financial affidavit, the Court finds that he has insufficient funds to pay the filing fee. Thus, Cone's motion for leave to proceed in forma pauperis, Doc. 2, is granted.

IL 1915 Screening

A. Factual Allegations of Cone's Complaint

Cone claims that he was formerly employed with Black Hills Patrol, a company owned by defendants Julia Orrock, Brent Borrenson, and Luca Orrock. Doc. 1-1 at 1. He claims that they “allowed [him] to work over 60 hours a week, while under contract, oftentimes more than 70 hours, knowing [his] age and health condition.” Id. He states that he has a “heart condition and additional health concerns.” Id. at 2. Cone alleges that Julia Orrock, Borrenson, and Luca Orrock also violated his contract by “not paying [him] his contracted sales commission earned and no overtime, without a proper designation of [his] federal classification of ‘salaried employee.' ” Id. at 1. He asserts that Julia Orrock, Borrenson, and Luca Orrock knowingly allowed convicted felons Kenneth Orrock and George Gazzola to run Black Hills Patrol. Id. Cone alleges that Kenneth Orrock, “at the behest of the owners,” singled him out “with a system of lies and slander” in order to investigate his relationship with another employee, even though “such a relationship is not against Black Hills Patrol policies.” Id. He also alleges that Kenneth Orrock used other employees, including Gazzola, for this purpose. Id.

Cone states that he was given an “action plan” that included a demotion “from Operations Manager to a regular employee and a complete change of long-standing policy, regarding assisting one specific employee, thus putting the employee in danger.” Id. He states that “[w]ithin this action plan, [he] was accused of violating Black Hills Patrol reporting policy regarding the employee's filing of an EEOC complaint.” Id. He claims that the action plan was used to justify his own termination during the EEOC investigation spurred by the other employee's complaint. See id. He alleges that Julia Orrock, Borrenson, and Luca Orrock cited unspecified policy violations by Cone as the cause of his termination. Id. Cone claims that, following his termination, Luca Orrock, Kenneth Orrock, and George Gazzola “have been charged by [him] with criminal charges including [h]arassing phone calls and stalking[.]” Id. He also references “racist comments made in his presence[.]” Id. at 2.

Cone states that he filed an EEOC complaint and that he has received a Notice of Right to Sue letter based on his age and health. Doc. 1 at 1. Cone attached neither the EEOC complaint nor the right-to-sue letter to his complaint. He seeks to bring claims based on the allegations contained within his EEOC complaint, unpaid commissions, tax issues stemming from W-2 irregularities, unpaid overtime and vacation hours, slander and stalking by the defendants, breach of contract, unfiled workers' compensation reports, “targeted termination during [his] EEOC complaint[,]” and wrongful termination. Id. at 1, 4. He seeks a public apology in writing for the racist comments, a notarized apology for all lies and slander, and either the closing of Black Hills Patrol or the signing over of the company to him. Doc. 1-1 at 4. He also asks for $30,000,000 for his pain, suffering, stress, and weight loss caused by the defendants, as well as all court costs incurred, lost wages based on wrongful termination, payment of medical bills owed because of the unfiled workers' compensation reports, and payment of the unpaid money owed for commissions and vacation time. Id. at 4; Doc. 1-1 at 2.

B. Legal Standard

A court when screening under § 1915 must assume as true all facts well pleaded in the complaint. Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Pro se and civil rights complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004) (citation omitted). Even with this construction, “a pro se complaint must contain specific facts supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (citation omitted); see also Ellis v. City of Minneapolis, 518 Fed.Appx. 502, 504 (8th Cir. 2013) (per curiam) (citation omitted). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993) (per curiam) (citation omitted); Parker v. Porter, 221 Fed.Appx. 481,482 (8th Cir. 2007) (per curiam) (citations omitted).

A complaint “does not need detailed factual allegations ... [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). If a complaint does not contain these bare essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663-64 (8th Cir. 1985). Twombly requires that a complaint's factual allegations must be “enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true[.]” 550 U.S. at 555 (internal citation omitted); see also Abdullah v. Minnesota, 261 Fed.Appx. 926, 927 (8th Cir. 2008) (per curiam) (noting that a “complaint must contain either direct or inferential allegations respecting all material elements necessary to sustain recovery under some viable legal theory” (citing Twombly, 550 U.S. at 553-63)). Further, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal quotation omitted) (quoting Twombly, 550 U.S. at 556).

When a district court determines a plaintiff is financially eligible to proceed in forma pauperis under 28 U.S.C. § 1915(a), the court must then determine whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982); see also Key v. Does, 217 F.Supp.3d 1006, 1007 (E.D. Ark. 2016). The court must dismiss claims if they “(i) [are] frivolous or malicious; (ii) fail[ ] to state a claim on which relief may be granted; or (iii) seek[ ] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court will now assess each individual claim under 28 U.S.C. § 1915.

C. Cone's Causes of Action

1. Administrative Exhaustion of Employment Discrimination Claims

Plaintiffs alleging violation of federal discrimination statutes must first file complaints with the EEOC. Sellers v. Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015). This Court can only consider employment discrimination claims once they have been exhausted through the EEOC process. See Weatherly v. Ford Motor Co., 994 F.3d 940, 944 (8th Cir. 2021). The EEOC must be offered the “initial opportunity to investigate allegations of employment discrimination and to work with the parties toward voluntary compliance and conciliation.” See Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir. 2005).

Cone states that he filed a complaint with the EEOC and that he received a Notice of Right to Sue letter regarding his age and health issues. Doc. 1 at 1. Cone attached neither his EEOC complaint nor the right-to-sue letter, and he provides no details or dates of his employment or EEOC proceeding, other than stating in his motion for leave to proceed in forma pauperis that he was fired on February 28, 2022. See id.; Doc. 1-1 at 1; Doc. 2 at 5. Thus, this Court cannot determine that Cone's age or health discrimination claims have not been properly exhausted.

Because this Court at this stage must assume as true all facts well pleaded in the complaint, Cone's claims regarding his age and health issues are not dismissed for failure to exhaust administrative remedies. See Estate of Rosenberg, 56 F.3d at 36.

Cone references “racist comments” made by the defendants in an attachment to his complaint. See Doc. 1-1 at 2. Construing his complaint liberally, Cone seeks to bring claims for racial discrimination under Title VII of the Civil Rights Act of 1964. But Cone does not allege...