United States District Court, E.D. Missouri, Eastern Division
VELMA M. HILL, Plaintiff,
MEGAN J. BRENNAN, Defendant.
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court upon plaintiff Velma M. Hill's
motion to proceed in forma pauperis. (ECF No. 2). Upon
consideration of the motion and the financial information
therein, the Court finds that plaintiff is unable to pay the
filing fee. The Court will therefore grant the motion.
Additionally, the Court will dismiss plaintiff's claims
brought pursuant to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et
seq., and direct the Clerk of Court to issue process
upon the defendant as to the remaining claims in the
Standard on Initial Review
28 U.S.C. § 1915(e)(2), 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 may be
granted. An action is frivolous if it “lacks an
arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief may be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
Court must liberally construe complaints filed by laypeople.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
means that “if the essence of an allegation is
discernible, ” the court should “construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework.”
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
is a former employee of the United States Postal Service.
From October of 2015 to February of 2016, she worked at the
Gaffney Post Office in St. Louis, Missouri. She brings this
action against the Agency under the Age Discrimination in
Employment Act (“ADEA”'), 29 U.S.C.
§§ 621, et seq., the ADA, and the
Rehabilitation Act of 1973 (“RA”), 29 U.S.C.
§§ 701, et seq.
claims the Agency subjected her to discriminatory harassment
on the bases of disability and age, and reprisal for prior
protected EEO activity. She claims her disability was not
accommodated, and that the terms and conditions of her
employment differed from those of similar employees. Briefly,
she alleges her manager made numerous disparaging statements
to and about her, and denied her medically-required work
breaks while allowing her fellow employees to take breaks.
The manager also required plaintiff to clock in and out while
not requiring this of other employees, changed
plaintiff's work schedule to accommodate others, called
plaintiff names, yelled at her, and brought false charges
ADA claim will be dismissed. The ADA does not provide
plaintiff with a cause of action for employment
discrimination against the federal government. 42 U.S.C.
§ 12111(5)(B); Carroll v. Potter, 163 Fed.Appx.
450 (8th Cir. 2006) (per curiam). Section 12111(5)(B) of
Title 42 provides that “[t]he term ‘employer'
does not include ... (i) the United States.” Because
the ADA specifically exempts the federal government from
claims made under the ADA, the Court must dismiss
Plaintiff's ADA claim. However, the elimination of the
ADA claim does not affect the legal analysis or the scope of
remedy available to plaintiff, as courts explicitly employ
ADA rules and principles for analysis of RA cases. See
Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999)
(internal citations omitted) (noting that with the exception
of the RA's federal funding requirement, “cases
interpreting either are applicable and
interchangeable.”). Plaintiff's remaining claims
will be allowed to proceed.
has also filed a motion to appoint counsel. The Court will
deny the motion at this time, without prejudice. “A pro
se litigant has no statutory or constitutional right to have
counsel appointed in a civil case.” Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When
determining whether to appoint counsel for an indigent
litigant, the Court considers factors such as the complexity
of the case, the litigant's ability to investigate the
facts, the existence of conflicting testimony, and the
litigant's ability to present her claims. Id.
After considering these factors, the Court concludes that the
appointment of counsel is not warranted at this time. Based
upon the complaint, it does not appear that this case is
factually or legally complex, nor does it appear that
plaintiff will be unable to investigate the facts or clearly
present her claims. In addition, the motion is premature, as
the defendant has yet to be served with process and discovery
has not begun. The Court will therefore deny the motion for
the appointment of counsel without prejudice, and will
entertain future motions for the appointment of counsel, if
appropriate, as this litigation progresses.
IT IS HEREBY ORDERED that plaintiff Velma M.
Hill's motion to proceed in forma pauperis (ECF No. 2) is
IS FURTHER ORDERED that plaintiff's claims filed
pursuant to the ADA are DISMISSED. A
separate order of ...