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Dean v. Sioux Falls Va Hospital

United States District Court, D. South Dakota, Southern Division

October 12, 2017

MILAN CARTER DEAN, Plaintiff,
v.
SIOUX FALLS VA HOSPITAL; DARWIN GOODSPEED, SIOUX FALLS VA HOSPITAL DIRECTOR; AND BETSY GEIVER, SIOUX FALLS VA HOSPITAL - HR DIRECTOR; Defendants.

          ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSFNG CASE WITH PREJUDICE

          Lawrence L. Piersol, United States District Judge

         Plaintiff, Milan Carter Dean, filed a pro se age discrimination civil rights lawsuit against the Sioux Falls VA Hospital, Darwin Goodspeed, the director of the Sioux Falls VA Hospital, and Betsy Geiver, the human resources director of the Sioux Falls VA Hospital. Docket 1 & 2. Dean also moves for leave to proceed in forma pauperis in his lawsuit against defendants. Docket 3.

         FACTUAL BACKGROUND

         Dean alleges that the hospital did not allow him to pursue a career at the Sioux Falls VA Hospital due to its discriminatory policies. Docket 1 at 3. He alleges that "[t]he director is expected to serve all [v]eterans needs and to make sure that we are all treated equal[.]" Id. He also alleges that "HR Director Betsey Geiver is under VA Hospital Director Goodspeed and he should have stopped this discriminatory practice of discrimination." Id.

         LEGAL STANDARD

         There is a two-step screening process with in forma pauperis litigants. Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th Cir. 1982); see also Key v. Does, 217 F.Supp.3d 1006, 1006 (E.D. Ark. 2016). First, district courts must determine whether a plaintiff is financially eligible to proceed in forma pauperis under 28 U.S.C. § 1915(a). Id. Second, district courts are to determine whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B). Id.

         This court may authorize the commencement of suit without prepayment of fees when an applicant files an affidavit stating he is unable to pay the costs of the lawsuit. 28 U.S.C. § 1915. Determining whether an applicant is sufficiently impoverished to qualify to proceed in forma pauperis under § 1915 is committed to the court's discretion. Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). "In forma pauperis status does not require a litigant to demonstrate absolute destitution." Lee v. McDonald's Corp., 231 F.3d 456 (8th Cir. 2000).

         But the inquiry does not end there. Under § 1915, the court must review the claims in the complaint to determine if they are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who has immunity. See 28 U.S.C. § 1915(e)(2)(B). A complaint 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). A plaintiffs complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions . . ." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level . . ." Id. When determining whether a complaint fails to state a claim upon which relief may be granted, this court "assumes as true all factual allegations in the pleadings, interpreting them most favorably to the [pleader]." Magee v. Trustees. Of Hamline Univ., 747 F.3d 532, 534-35 (8th Cir. 2014). Dean is proceeding pro se and his complaint is therefore entitled to a liberal construction. Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam). Although pro se complaints are to be construed liberally, "they must still allege facts sufficient to support the claims advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to supply additional facts for a pro se plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. Id.

         DISCUSSION

          I. Motion For Leave to Proceed In Forma Pauperis

         Based upon his application, the court finds that Dean has sufficiently demonstrated his need to proceed in forma pauperis. He reports that his only income is retirement income of $1, 227 per month. Docket 3 at 2. He reports that his monthly expenses are $1, 201.50. Id. Therefore, the court grants his motion for leave to proceed in forma pauperis.

          II. Dean's Complaint

         When a litigant proceeds in forma pauperis, a court must dismiss his case if it determines that the action "fails to state a claim on which relief may be granted . . . ." 28 U.S.C.A. § 1915(e)(2)(B)(i), (ii). Here, Dean fails to state a claim. Dean's legal theory is his "constitutional right of protection against age discrimination."

         The Age Discrimination in Employment Act (ADEA) is the exclusive remedy for age discrimination in federal employment and therefore preempts judicial remedies based directly on the Constitution for claims of age discrimination in federal employment. See Paterson v. Weinberger,644 F.2d 521 (5th Cir. 1981); see also Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981) (rejected by, Langford v. U.S. Army Corps of Engineers,839 F.2d 1192 (6th Cir. 1988)); see also Mummelthie v. City of Mason City, 873 F.Supp. 1293, 1310 (N.D. Iowa 1995); see also Christie v. Marston,451 F.Supp. 1142 (N.D. 111. 1978). The federal-sector provision of the ADEA provides that "[a]ll personnel actions ...


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