United States District Court, N.D. New York
PLAINTIFF: GLORIA RAVEN, Pro se
ORDER, REPORT, AND RECOMMENDATION
E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
action was brought by pro se plaintiff Gloria Raven
against, inter alia, her former employer and
supervisor under Title VII of the Civil Rights Act of 1964
("Title VII"), as amended, 42 U.S.C. § 2000e,
et seq. Plaintiff's complaint and accompanying
motion for leave to proceed in the action in forma
pauperis ("IFP") have been forwarded to me for
review. For the reasons set forth below, plaintiff's IFP
application is granted, but I recommend that her complaint be
dismissed, with leave to replead.
was hired by defendant DaVita Inc. on August 22, 2016, as a
Dialysis Technician. Dkt. No. 1 at 11. "[A]fter five
very successful months" on the job, plaintiff was
offered a promotion to Administrative Assistant. Id.
In her position as Administrative Assistant, plaintiff was
supervised by defendant Dareni Lowe. Id. at 14.
Plaintiff served in her capacity as Administrative Assistant
until June 5, 2017, when she was fired. Id. at 25.
complaint, which is thirty-eight pages in length and set
forth in narrative form, describes plaintiff's experience
while working under defendant Lowe, including plaintiff's
successes and strengths, as well as defendant Lowe's
conduct towards plaintiff. By way of one example, plaintiff
alleges that on or about February 23, 2017, she relocated a
printer to her workstation when no one else who might need
the printer was in the office. Id. at 16. When
defendant Lowe learned of what plaintiff did, she demanded
that plaintiff return the printer to its original location,
reprimanded her, and threatened to write a formal complaint
against her. Id. at 16-17. Plaintiff contends that
defendant Lowe regularly abused her authority and acted
unprofessionally towards plaintiff until plaintiff complained
directly to defendant Kate Hooks, defendant Lowe's
supervisor, concerning Lowe's conduct. Id. at
21. Within two days of plaintiff speaking with defendant
Hooks, defendant Lowe filed the first of three formal written
complaints against plaintiff. Id. at 22, 24.
Plaintiff alleges that the written complaints were made in
retaliation for plaintiff complaining to defendant Hooks, and
designed to provide pretext for firing plaintiff.
Id. at 24.
Plaintiff's IFP Application
civil action is commenced in a federal district court, the
statutory filing fee, currently set at $400, 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, her
application for leave to proceed without prepayment of fees
I have found that plaintiff meets the financial criteria for
commencing this case IFP, I must next consider the
sufficiency of the claims set forth in her 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).
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). The court, however, 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 purposes of
dismissal under section 1915(d), may be based upon a defense
that appears on the face of the complaint.").
reviewing a complaint under section 1915(e), the court is
guided by applicable requirements of the Federal Rules of
Civil Procedure. 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 judicata ...