United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA
PAUPERIS AND DISMISSFNG CASE WITH PREJUDICE
Lawrence L. Piersol, United States District Judge
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.
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
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.
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).
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.
I. Motion For Leave to Proceed In Forma
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
II. Dean's Complaint
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 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 ...