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Ombe v. Cook

United States District Court, D. New Mexico

March 7, 2017

HITOSHI OMBE, Plaintiff,
v.
GEORGE COOK, et al., Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT

         THIS MATTER comes before the Court on pro se Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 10, filed December 27, 2016 (“Application”), on his Amended Complaint, Doc. 9, filed December 27, 2016, and on his Special Demand to the Court, Doc. 3, filed October 7, 2016. For the reasons stated below, the Court will GRANT Plaintiff's Application, DISMISS Plaintiff's Amended Complaint without prejudice, and DENY his Special Demand to the Court. Plaintiff shall have 21 days from entry of this Order to file a second amended complaint. Failure to timely file a second amended complaint will result in dismissal of this case without prejudice.

         Application to Proceed in forma pauperis

         The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees.

When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute [allowing a litigant to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute, ” “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at 339.

         The Court will grant Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit declaring that he is unable to pay the costs of these proceedings and that the following information is true: (i) his monthly income during the past 12 months was $990.00 and that his expected income next month is $1, 010.00; (ii) his monthly expenses are $1, 011.00; (iii) he has $300.00 in cash, $1, 515.00 in bank accounts, and his only asset is a vehicle valued at $5, 000.00; and (iv) he is unemployed. The Court finds that Plaintiff is unable to pay the filing fee because his monthly expenses exceed his monthly income and he is unemployed.

         Dismissal of Proceedings In Forma Pauperis

         The statute governing proceedings in forma pauperis requires federal courts to dismiss an in forma pauperis proceeding that “is frivolous or malicious; ... fails to state a claim on which relief may be granted; ... or seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “In determining whether a dismissal is proper, we must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217. The Court looks to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief, i.e. the factual allegations must be enough to raise a right to relief above the speculative level. See Id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Dismissal of an in forma pauperis complaint as frivolous is not an abuse of discretion based on a determination that the pro se litigant did not state a viable legal claim and that the complaint consisted of little more than unintelligible ramblings. Triplett v. Triplett, 166 Fed.Appx. 338, 339-340 (10th Cir. 2006). However, “pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

         Plaintiff, a 65 year old man of Japanese origin with autism spectrum disorder and neurocognitive impairment, is proceeding pro se and is asserting claims pursuant to the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the Age Discrimination in Employment Act (“ADEA”). See Amended Complaint at 7. Plaintiff complains of various actions during the course of his employment including: (i) he “was subjected to work in very distressfull [sic] environment;” (ii) mistreatment in work environment with very antiquated management principles; (iii) change in work schedule with 40% reduced time; (iv) lazy and dishonest coworkers; (v) bullying; (vi) being written up without legitimate reasons; (vii) failure of others to communicate professionally; and (viii) failure to communicate properly with Plaintiff knowing he has autism spectrum disorder. See Complaint ¶¶ 15 at7, 17 at 7, 23 at 9, 31-32 at 12, 36 at 13, 42 at 14, 44 at 14, 14 at 15.

         Americans with Disabilities Act

         To establish a prima facie case of disability discrimination under the ADA, Plaintiff must show that he “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job ...; and (3) suffered discrimination by an employer ... because of that disability.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir.2011) (internal quotation marks omitted). To satisfy the third prong, “a plaintiff generally must show that [s]he has suffered an adverse employment action because of the disability.” Id. at 1038 (internal quotation marks omitted) (“The Tenth Circuit has liberally define[d] the phrase adverse employment action, and takes a case-by-case approach, examining the unique factors relevant to the situation at hand, . . . . In general, [o]nly acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action”) (internal citations and quotation marks omitted).

         Discrimination under the ADA also includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an ... employee [.]” Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).

To facilitate the reasonable accommodation, [t]he federal regulations implementing the ADA envision an interactive process that requires participation by both parties. However, before an employer's duty to provide reasonable accommodations-or even to participate in the “interactive process”-is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice. Although the notice or request does not have to be in writing, be made by the employee, or formally invoke the magic words ‘reasonable accommodation, ' it nonetheless must make clear that the employee wants assistance for his or her disability. That is, the employer must know of both the disability and the employee's desire for accommodations for that disability.

EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir.2011) (citations and internal quotation marks ...


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