United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE IN PART AND DIRECTING SERVICE
E. SCHREIER UNITED STATES DISTRICT JUDGE.
February 28, 2019, Erin Jessica Eiler, appearing pro se,
filed a 28 U.S.C. § 1983 action against defendants for
employment discrimination. Docket 1. Eiler moved for leave to
proceed in forma pauperis, which the court granted. Docket 5.
Currently pending are Eiler's motion to electronically
file documents (Docket 4), Eiler's motion for a Rule 16
pretrial conference (Docket 9), and Eiler's motion for
service by the United States Marshal (Docket 11).
in forma pauperis is governed by 28 U.S.C. § 1915. That
Notwithstanding any filing fee, . . . the court shall dismiss
the case at any time if the court determines that--
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2). Section 1915(e)(2) allows the
court to review a complaint proceeding under in forma
pauperis status to determine if the action is frivolous,
malicious, fails to state a claim, or seeks monetary relief
against a defendant or defendants who are immune from such
relief. Thus, the court is required to screen a pro se
complaint as soon as practicable and to dismiss those which
are frivolous or fail to state a claim for relief. The United
States Supreme Court has explained that the § 1915(e)
screening procedure “accords judges not only the
authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.” Denton v. Hernandez, 504 U.S. 25,
32 (1992). But an in forma pauperis complaint cannot be
dismissed “simply because the court finds the
plaintiff's allegations unlikely.” Id. at
33. “[A] complaint, containing as it does both factual
allegations and legal conclusions, is frivolous where it
lacks an arguable basis either in law or in fact. . . . [The]
term ‘frivolous,' when applied to a complaint,
embraces not only the inarguable legal conclusion, but also
the fanciful factual allegation.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Eiler is proceeding pro se, her pleadings must be liberally
construed and her complaint, “however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation and
citation omitted). While pro se complaints are construed
liberally, “they must still allege facts sufficient to
support the claims advanced.” Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004).
alleges that Wells Fargo improperly denied her employment as
a Private Mortgage Banker in Boulder, Colorado. Docket 1 at
3. She also alleges that Wells Fargo denied her employment as
a Teller in California and at the Huron, South Dakota Wells
Fargo branch. Id. She states that Wells Fargo
discriminated against her based on a disability, failed to
reasonably accommodate her disability, and refused to hire
her based on her age and color. Id. at 3, 5. She
also references a “retaliation component” based
on when she was employed by Wells Fargo in 2011-2012.
Id. at 6. At this point, Eiler has provided
sufficient facts to proceed against Wells Fargo.
the “South Dakota Human Rights Department of Labor,
” Eiler does not provide any factual allegations to
support a claim against the South Dakota Department of Labor
(SD DOL). The only references to the S.D. DOL in her
complaint are: (1) she states that she “has filed
charges” with the S.D. DOL, and (2) she “requests
review of the South Dakota Human Rights . . . .” Docket
1 at 1, 7. Thus, she fails to state a claim upon which relief
can be granted.
the Equal Employment Opportunity Commission (EEOC), Eiler
fails to allege sufficient facts to support a claim. In her
complaint, Eiler states that she “has filed charges
against [Wells Fargo] asserting acts of discrimination”
with the EEOC. Id. at 1. While Eiler attaches the
EEOC's decisions, where the EEOC determined that it was
unable to conclude that there was a violation by Wells Fargo
(Docket 1 at 8-11), this is insufficient to state a claim
upon which relief can be granted.
Eiler cannot sue the EEOC for how it handled her complaint
against Wells Fargo. “Congress has not authorized,
either expressly or impliedly, a cause of action against the
EEOC for the EEOC's alleged negligence or other
malfeasance in processing an employment discrimination
charge.” Smith v. Casellas, 119 F.3d 33, 34
(D.C. Cir. 1997) (per curiam); see also Baba v. Japan
Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir.
1997) (holding that “Title VII provides no express or
implied cause of action against the EEOC for claims that the
EEOC failed properly to investigate or process an employment
discrimination charge.”). Because “no cause of
action against the EEOC exists for challenges to its
processing of a claim, ” a complaint ...