AMS BAKER Syracuse, New York, Plaintiff, pro se.
REPORT, RECOMMENDATION, and ORDER
DAVID E. PEEBLES, Magistrate Judge.
Pro se plaintiff Ams Baker has commenced this employment discrimination action against the Salvation Army and an individual identified as Linda Corp. Dkt. No. 1. Prior to commencing this action, plaintiff alleges that he received notice of his right to file suit from the Equal Employment Opportunity Commission ("EEOC") on or about September 19, 2012. Dkt. No. 1 at 4. Plaintiff has not paid the filing fee for this action, and requests leave to proceed in forma pauperis ("IFP"). Dkt. No. 2.
Plaintiff's complaint alleges that he was employed by defendant Salvation Army on or about December 9, 2011. Dkt. No. 1 at 6. During the week of December 19, 2011, plaintiff alleges that he was fired by defendants for, inter alia, taking a fifteen-minute break and a thirty-minute lunch break at the same time. Id. Plaintiff also alleges that a white female co-worker also took her break and lunch at the same time, and she was not fired. Id. Plaintiff is a black male. Id. Finally, plaintiff's complaint alleges that defendant Corp referred to plaintiff as "boy, " which plaintiff construed as a racial slur. Id. at 7. As a result of these allegations, plaintiff has asserted an employment discrimination claim pursuant to Title VII against defendants. Id. at 3. For a more complete statement of plaintiff's claims and the allegations giving rise to those claims, reference is made to plaintiff's complaint in its entirety. See generally Dkt. No. 1.
A. IFP Application
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $350, must ordinarily be paid. 28 U.S.C. §§ 1914(a). A court is authorized, however, to permit a litigant to proceed IFP if it determines that she is unable to pay the required filing fee. 28 U.S.C. § 1915(a)(1). In this instance, because I conclude that plaintiff meets the requirements for IFP status, his application for leave to proceed IFP is granted.
B. Sufficiency of Plaintiff's Complaint
1. Legal Standard
Because I have found that plaintiff Baker meets the financial criteria for commencing this case IFP, I must next consider the sufficiency of the claims set forth in his complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that, when a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that... the action... (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)(B).
In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference in favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to address the sufficiency of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). However, the court also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). "Legal frivolity... occurs where the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.'" Aguilar v. United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) ("[D]ismissal is proper only if the legal theory... or factual contentions lack an arguable basis."); Pino v. Ryan, 49 F.3d. 51, 53 (2d Cir. 1995) ("[T]he decision that a complaint is based on an indisputably meritless legal theory, for the purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.").
When reviewing a complaint under section 1915(e), the court looks to applicable requirements of the Federal Rules of Civil Procedure for guidance. Specifically, Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res ...