Dailey v. BP Exploration & Production, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Reginald Dailey, )
Plaintiff, )
)
v. )CIVIL ACTION NO. 1:23-00376-TFM-N
)
BP Exploration & Production, )
Inc., )
Defendant. )
AMENDED REPORT AND RECOMMENDATION
This civil action is before the Court sua sponte on review of the amended
complaint dated May 9, 2024, (Doc. 9), and supplemental attachment from May
28, 2024, (Doc. 10), filed by Plaintiff Reginald Dailey, who is proceeding
without counsel (pro se) and in forma pauperis. (Doc. 4).1
Because Dailey was granted leave to proceed in this action without
prepayment of fees under 28 U.S.C. § 1915, his complaint is subject to §
1915(e)(2). After careful consideration of Dailey’s filings, it is the
1 The undersigned issued an order on October 31, 2024 (Doc. 14),
withdrawing the previous Report and Recommendation (Doc. 11). This
Amended Report and Recommendation is submitted for standalone
consideration by the assigned District Judge.
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recommendation of the undersigned that this action be dismissed with
prejudice.2
I. Procedural Background & Summary of the Operative Complaint
Dailey initiated this action on October 4, 2023, by filing a complaint
alleging jurisdiction of this Court based on diversity. (Doc. 1). Dailey was
ordered to file an amended complaint, to correct his original “shotgun” pleading
and allege proper subject matter jurisdiction. (Doc. 8). Notably, he was directed
to clearly state each cause of action, reference proper authority or statute, and
make clear which allegations were intended to support each claim. (Doc. 8,
PageID.66-67). Dailey timely submitted a more narrowly drawn complaint on
May 9, 2024, which is now under consideration. (Doc. 9).
Dailey’s amended complaint—naming BP Exploration & Production, Inc.,
of Cincinnati, Ohio [sic] (“BP”) as a defendant—satisfies prior subject matter
jurisdiction concerns by turning to a federal question of racial discrimination
in the workplace. (See Doc. 9).
Dailey’s complaint alleges racial discrimination when he began
employment on September 13, 2010. (Doc. 9, PageID.73). He was assigned a
2 The assigned District Judge has referred this case to the undersigned
Magistrate Judge for all pretrial matters under 28 U.S.C. § 636(a)-(b),
Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala.
GenLR 72(b); (electronic reference notation entered 10/10/2023).
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truck and was racially segregated from other drivers; not allowed to attend
meetings and training; and was paid less than white drivers in his position. Id.
Dailey claims $20 million in damages. Id. Dailey cites as authority Title 42 of
the United States Code and Section 1983. (Doc. 9, PageID.73-74). In a
supplemental briefing (Doc. 10), Dailey alleges Fourteenth Amendment
violations.3
The undersigned finds that the amended complaint is due to be
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) as frivolous and failing to
state a claim on which relief may be granted.
II. Review Under § 1915(e)(2)
Under 28 U.S.C. § 1915, the court shall dismiss a case by a plaintiff
proceeding in forma pauperis at any time if it determines that the complaint
is frivolous, malicious, or fails to state a claim on which relief may be granted.
See Thomas v. N.C. Mutual Life Ins. Co., 2020 WL 265871 (S.D. Ala. 2020).
Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the
case at any time if the court determines that … the
action or appeal— (i) is frivolous or malicious; (ii) fails
to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is
immune from such relief.
3 Liberal construction is provided for pro se plaintiffs. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir.1998).
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28 U.S.C. § 1915(e)(2)(B).
Actions are deemed frivolous if on the face of the complaint it is apparent
an affirmative defense would defeat the claim. Clark v. Georgia Pardons &
Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir.1990) (when an affirmative
defense would defeat a claim, such as the statute of limitations, the claim may
be dismissed as frivolous); see also Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct.
910, 921, 166 L. Ed. 2d 798 (2007) (when a successful affirmative defense
appears on the face of a complaint it subject to dismissal under 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim). At any stage of the proceedings, a
case is frivolous for the purpose of section 1915(e)(2)(B) when it appears the
plaintiff “has little or no chance of success.” Carroll v. Gross, 984 F.2d 392, 393
(11th Cir. 1993) (quoting Harris v. Menendez, 817 F.2d 737, 741 (11th Cir.
1987)).
Further, a complaint may be dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted
“if it is clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S.
69, 73 (1984). “Dismissal under § 1915(e)(2)(B)(ii) is governed by the same
standard as a dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1253 (11th Cir. 2017),
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abrogated on other grounds by Bostock v. Clayton County, 590 U.S. 644 (2020);
see Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.1997) (noting that §
1915(e)(2)(B)(ii)'s language tracks the language of Fed. R. Civ. P. 12(b)(6)).
Dailey’s complaint fails to meet the hurdles of the governing statute.
III. Analysis
A. Title VII
Title VII provides that it “shall be an unlawful employment practice for
an employer ... to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race....” 42 U.S.C. § 2000e-2(a)(1).4
However, an employee must exhaust administrative remedies under
Title VII. Stamper v. Duval Cnty. Sch. Bd., 863 F.3d 1336, 1339 (11th Cir.
2017); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.). The proper
procedure sees a plaintiff file a complaint with the Equal Employment
Opportunity Commission (“EEOC”) to receive a “right-to-sue letter,” which
then entitles them to bring a timely civil action. See Miller v. Georgia, 223 F.
4 The amended complaint cites “42 U.S.C. and 1983” which could be
construed as a Title VII claim, 42 U.S.C. § 2000e et seq. See Selby v. Tyco
Healthcare Grp., L.P., 301 F. App’x 908, 910 (11th Cir. 2008) (Allegations that
a plaintiff was subject to employment discrimination based on race are
governed by Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981
(discussed infra section D)).
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App'x 842, 844 (11th Cir. 2007) (citing 42 U.S.C. § 2000e–5(f)(1) and Stallworth
v. Wells Fargo Armored Serv. Corp., 936 F.2d 522, 524 (11th Cir. 1991)). The
purpose of the exhaustion requirement is to give the EEOC the first
opportunity to investigate the alleged discriminatory practices and attempt to
obtain voluntary compliance and promote conciliation efforts. Gregory v. Ga.
Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).
Plaintiffs have a limited period in which to file a charge with the EEOC.
For a charge to be timely in Alabama, it must be filed within 180 days after
the alleged unlawful employment practice occurred. Reed v. Winn Dixie, Inc.,
677 F. App'x 607, 610 (11th Cir. 2017) (citing 42 U.S.C. § 2000e–5(e)(1)).
Failure to file a timely charge with the EEOC generally results in a bar of the
claims.5 See id. (citing Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332
(11th Cir. 2000)).
In the previous order addressing the deficiencies of Dailey’s original
pleading, this Court’s instructions were clear and unambiguous. The Court
explicitly outlined the proper procedure and requirements for bringing Title
5 The timely filing of an EEOC charge is a requirement that is subject to
waiver, estoppel, and equitable tolling, but such remedies are likely
inappropriate in this case. See Reed, 677 Fed. App’x. 607, 610 (11th Cir. 2017);
see also Wallace v. Kato, 549 U.S. 384, 396 (2007) “Equitable tolling is a rare
remedy to be applied in unusual circumstances, not a cure-all for an entirely
common state of affairs.”
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VII claims. (See Doc. 8, n.7, PageID.65). Specifically, Dailey was apprised that
he must, at minimum, allege fulfillment of conditions precedent to filing suit.
Notwithstanding these detailed directives, Dailey’s amended complaint
remains flawed. Dailey has not alleged he filed an EEOC complaint; he has not
attached an EEOC right-to-sue notice; nor has he alleged that “all conditions
precedent to the institution of [a Title VII claim] have been fulfilled.” Jackson
v. Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir. 1982) (citing Fed.
R. Civ. P. 9(c)).
Furthermore, the only date listed in Dailey’s amended complaint is
September 13, 2010. (Doc. 9, PageID.73). This would place the alleged acts of
discrimination approximately 4,769 days prior to the time of his original filing.6
Setting aside issues of procedural deficiencies and timeliness, Dailey's
complaint suffers under substantive examination. While pro se pleadings “are
held to a less stringent standard … and will, therefore, be liberally construed”
this leniency does not give a court “license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to sustain an
action.” Tannenbaum, 148 F.3d at 1263 (11th Cir. 1998); GJR Invs., Inc. v.
Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted),
6 Dailey’s original complaint was filed on October 4, 2023. (See Doc. 1).
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(overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)).
All litigants, pro se or not, must comply with the Federal Rules of Civil
Procedure.
To state a claim for race discrimination under Title VII, plaintiffs must
allege, at a minimum, facts that would allow “the court to draw the reasonable
inference,” that Defendant subjected them to an adverse employment action or
to a discriminatorily hostile or abusive work environment, because of their race.
Iqbal, 556 U.S. at 677; see 42 U.S.C. § 2000e-2(a); see also, e.g., McCann v.
Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (discussing how to establish a
claim under Title VII).
As explained to Dailey in the prior court order, (Doc. 8, PageID.60))—
“[u]nder Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
‘short and plain statement of the claim showing that the pleader is entitled to
relief.’ … [T]he pleading standard Rule 8 announces does not require detailed
factual allegations, but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation. A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Iqbal, 556 U.S. at 677-78 (citations omitted); see
Duty Free Ams., Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1262
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(11th Cir. 2015) (courts “afford no presumption of truth to legal conclusions
and recitations of the basic elements of a cause of action.” (quoting Franklin v.
Curry, 738 F.3d 1246, 1248 n.1 (11th Cir. 2013)).
“The plausibility standard is not akin to a probability requirement, but
it asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Iqbal, 556 U.S. at 678 (citations omitted). Put another
way, “where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—'that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R.
Civ. P. 8(a)(2)). “[T]o determine what the plaintiff must plausibly allege at the
outset of a lawsuit, [courts] usually ask what the plaintiff must prove in the
trial at its end.” Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media,
589 U.S. 327, 332 (2020).
After explaining the foregoing principles, the Court previously
determined that the sparse allegations in Dailey’s first complaint failed to
provide “enough factual matter (taken as true) to suggest intentional race
discrimination.” (Doc. 8, PageID.64-65). The Court advised “he alleges no
specific facts to plausibly indicate that the disparate treatment was motivated
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by racial animus, as opposed to non-discriminatory factors.” (Doc. 8,
PageID.65).
Despite having been previously advised that his complaint is required to
provide sufficient “well-pleaded factual allegations” that “plausibly give rise to
an entitlement to relief,” Dailey’s amended complaint makes no effort to meet
that pleading standard. See Iqbal, 556 U.S. at 679. Dailey fails to address the
discriminatory intent needed to qualify for Title VII, by only putting forth bare-
bone allegations of racially disparate treatment that would require this Court
to make too many unsupported assumptions, logical leaps, and partial
inferences.
B. Fourteenth Amendment
Dailey supplemented his amended complaint by alleging additional
violations of due process and equal protection under the Fourteenth
Amendment. (Doc. 10).7 However, Dailey did not provide any additional factual
allegations to support his contentions.
“The Fourteenth Amendment does not prohibit ‘private conduct, however
discriminatory or wrongful,’ unless the private individual has become so allied
with the state as to be a state actor.” King v. Epstein, 167 F. App'x 121, 122–
7 Construing the filing in favor of Plaintiff.
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23 (11th Cir. 2006) (citing, Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102
S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982)). Private actors may become state
actors under three theories: “conspiracy,” “public function,” and “nexus.” See
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42
L.Ed.2d 477 (1974); Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992). Dailey
makes no allegations that implicate these theories.
C. Section 1983
Dailey cites Section 1983, the statutory vehicle for redressing
deprivations of constitutional rights by state officials, which would comport
with the supplemental allegations of Fourteenth Amendment violations. (See
Doc. 9, PageID.73-74; Doc. 10); Ziglar v. Abbasi, 582 U.S. 120, 130, 137 S. Ct.
1843, 1854 (42 U.S.C. § 1983 entitles an injured person to money damages if a
state official violates his or her constitutional rights); see also Williams v. City
of Savannah, Georgia, No. 4:21-CV-272, 2022 WL 2276358, at *2 (S.D. Ga.
June 23, 2022) (discussion of construing a pro se litigant's complaint which
alleged a violation of the Fourteenth Amendment, but which failed to reference
Section 1983, as seeking relief under Section 1983).
Similar to the previous analysis, to state a claim pursuant to Section
1983, “a plaintiff must allege that (1) the defendant deprived [him] of a right
secured under the United States Constitution or federal law and (2) such a
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deprivation occurred under color of state law.” Richardson v. Johnson, 598 F.3d
734, 737 (11th Cir. 2010).
Plaintiff lists Defendant as BP Exploration & Production Inc. (Doc. 9,
PageID.69, 70, 73). No allegations are made of any connection to a government
action or entity.
Additionally, the statute of limitations applicable to a 1983 claim is
governed by the statute for a personal injury action in the state where the
claim arose. For Alabama, that is a 2-year limitation. See Taylor v. City of
Mobile Police Dep’t, No. CV 23-00328-KD-N, 2024 WL 2724171, at *1 (S.D. Ala.
May 28, 2024).
D. Section 1981
Afforded liberal construction, analysis is provided for Section 1981. See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.1998) (pro se
filings are construed liberally). Section 1981 provides an action against private
actors that specifically prohibits "intentional race discrimination." American
Alliance for Equal Rights v. Fearless Fund Mgmt., LLC, 103 F.4th 765, 775
(11th Cir. 2024); 42 U.S.C. § 1981(a) (guaranteeing the same rights “as [are]
enjoyed by white citizens").
“Title VII and § 1981 claims [are evaluated] using the same evidentiary
requirements and analytical framework.” Jefferson v. Burger King Corp., 505
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F. App'x 830, 832–33 (11th Cir. 2013). In this Court’s prior order (Doc. 8),
Dailey was directed to the insufficiencies in his allegations of racial
discrimination. (See discussion supra Part A; Doc. 8, PageID.64-65).
Specifically, “his complaint fails ‘to provide enough factual matter (taken as
true) to suggest intentional race discrimination.’” (Doc. 8, PageID.64-65) (citing
Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015)).
Dailey’s amended complaint does not correct the noted deficiencies.
While Dailey alleges that he was not allowed to attend meetings nor training,
was “separated from other drivers” who were white, and “was paid lower than
white drivers” in his position (Doc. 9, PageID.73), he alleges no specific facts to
plausibly indicate that the disparate treatment was motivated by racial
animus, as opposed to non-discriminatory factors. See Iqbal, 556 U.S. at 679
(“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” (alterations and quotations
omitted)).
Even if the Court were to construe Dailey’s complaint as meeting the
pleading standard, the date provided by Plaintiff is “9/13/2010.” (Doc. 9,
PageID.73). Under Jones v. R.R. Donnelley & Sons. Co., Section 1981 claims
for racial harassment in the course of employment are subject to a 4-year
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statute of limitations. 541 U.S. 369, 383, 124 S.Ct. 1836, 1845 (2004) (holding
causes of action made possible under the Civil Rights Act of 1991 were subject
to 28 U.S.C. § 1658, a 4-year time limitation).
D. Dismissal
“Dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as
a dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Evans,
850 F.3d at 1253. The “plaintiff's obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, (2007).
“To survive a motion to dismiss [under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim
for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In other
words, the complaint must contain “factual content that allows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
Hi-Tech Pharm., Inc. v. HBS Int'l Corp., 910 F.3d 1186, 1196 (11th Cir.
2018).
Here, because Dailey’s amended complaint fails to satisfy Rule 8(a)(2)’s
“plausibility standard” for any claim—to the extent any of it is not time
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barred—the amended complaint is due to be dismissed in its entirety as it “fails
to state a claim on which relief may be granted[.]” 28 U.S.C. § 1915 (e)(2)(B)(ii).
Additionally, § 1915(e)(2)(B)(i) requires dismissal if the court determines
the complaint is “frivolous.” Actions are deemed frivolous if on the face of the
complaint it is apparent an affirmative defense would defeat the claim. Clark,
915 F.2d at 640 n. 2 (11th Cir.1990). Precedent also dictates a case is frivolous
for the purpose of section 1915(e)(2)(B) when it appears the plaintiff “has little
or no chance of success.” Carroll, 984 F.2d at 393 (quoting Harris, 817 F.2d at
741).
Moreover, because Dailey was already given a chance to file “a more
carefully drafted complaint [that] might state a claim,” and because his
amended complaint made no effort to cure the pleading deficiencies noted in
the first complaint, dismissal should be with prejudice and without further
leave to amend. See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991),
overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541,
542 & n.1 (11th Cir. 2002) (en banc) (overruling Bank’s one-chance-to-amend
rule as to counseled parties).
IV. Conclusion & Recommendations
In accordance with the foregoing analysis, and pursuant to 28 U.S.C. §
636(b)(1), Federal Rule of Civil Procedure 72(b)(1), and S.D. Ala. GenLR
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72(a)(2)(S), the undersigned RECOMMENDS the Court DISMISS the
amended complaint (Doc. 9) with prejudice under 28 U.S.C. §
1915(e)(2)(B)(i)-(ii).
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties
in the manner provided by law. Any party who objects to this recommendation
or anything in it must, within 14 days of the date of service of this document,
file specific written objections with the Clerk of this Court. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note
that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate
judge's findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court's order based on
unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific finding or recommendation
to which objection is made, state the basis for the objection, and specify the
place in the Magistrate Judge’s report and recommendation where the
disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 21st Day of November 2024.
/s/Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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