United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on plaintiff Anita Driver's
(“plaintiff”) motion for leave to proceed in
forma pauperis and motion for appointment of counsel.
Plaintiff seeks leave to proceed without payment of the
filing fee in this employment discrimination action brought
under the American with Disabilities Act of 1990, as amended,
42 U.S.C. §§ 12101, et seq.
(“ADA”). For the following reasons,
plaintiff's motion for leave to proceed in forma pauperis
will be granted, and the Court will waive the filing fee.
Plaintiff's motion for appointment of counsel will be
denied without prejudice at this time.
28 U.S.C. § 1915(e), the Court is required to dismiss a
complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
alleges she was employed as a line cook at Ballpark Village
from April 2015 until her termination on April 6, 2016. Her
supervisor was Phil Dikeman, a chef at Ballpark Village.
states that on approximately February 1, 2016, she found a
lump on her breast. She scheduled a mammogram for two weeks
later. She notified Mr. Dikeman, and he asked that she keep
him informed. After a mammogram, plaintiff told Mr. Dikeman
that the imaging had found a mass and she needed to be taken
off the schedule for thirty days to deal with her health
issue. According to her EEOC charge of discrimination,
however, on February 9, 2016, she was suspended for an
altercation with another employee. In her EEOC charge,
plaintiff states, “I texted [Mr. Dikeman] and told him
to go ahead and take me off the schedule for 30 days as I
would need some time to take care of my disability.”
Both plaintiff's charge of discrimination and complaint
allege that she asked to be taken off the schedule to address
her health issue.
called Mr. Dikeman again on either March 6 or March 14, and
asked to be placed back on the work schedule. Mr. Dikeman was
out of town, and plaintiff was told to call back in April.
When she called back, Mr. Dikeman asked her to come in the
next Friday for a meeting. Plaintiff alleges she was fired at
that meeting. In her EEOC charge, she states: “In April
I had a conversation with [Mr. Dikeman] who told me that he
wasn't bringing me back as I did not appear to want to be
[employed by Ballpark Village] the first time I was
there.” She states, “I believe if I never asked
for 30 days off, I would still have my job” and that
she is “being discriminated against based on my
disability” and was terminated in violation of her
rights under the ADA.
filed her charge of discrimination with the EEOC on July 7,
2016, which is timely, and received a right to sue letter
dated May 17, 2017. She filed this action on June 1, 2017,
which is within her 90-day period for filing suit.
establish an ADA claim, plaintiff must show that she was
disabled, qualified to perform the job, with or without a
reasonable accommodation, and suffered an adverse employment
action because of her disability. See Moysis v. DTG
Datanet, 278 F.3d 819, 824 (8thCir. 2002).
Breast cancer can be a disabling impairment under the ADA if
it limits a major life activity. See Treiber v. Lindbergh
Sch. Dist., 199 F.Supp.2d 949, 959-61 (E.D. Mo. 2002).
Based on the Court's initial review, plaintiff's
allegations are non-frivolous, and the Court will order
process to issue on her complaint. See 28 U.S.C.
Court will deny without prejudice plaintiff's motion for
appointment of counsel. There is no constitutional or
statutory right to appointed counsel in civil cases.
Nelson v. Redfield Lithograph Printing, 728 F.2d
1003, 1004 (8th Cir. 1984). To determine whether
to appoint counsel, the Court considers several factors,
including whether: (1) the plaintiff has presented
non-frivolous allegations supporting his or her prayer for
relief; (2) the plaintiff will substantially benefit from the
appointment of counsel; (3) there is a need to further
investigate and present the facts related to the
plaintiff's allegations; and (4) the factual and legal
issues presented by the action are complex. See Johnson
v. Williams, 788 F.2d 1319, 1322-23 (8 Cir. 1986);
Nelson, 728 F.2d at 1005.
has presented non-frivolous claims, however, she has
demonstrated at this point that she can adequately present
her claims to the Court. Additionally, neither the factual
nor the legal issues in this case are complex. After
reviewing the record, ...