1:23-cv-00376•Dailey v. BP Exploration & Production, Inc.
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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. Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 1 of 16 PageID# <pageID>
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). Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 2 of 16 PageID# <pageID>
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). Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 3 of 16 PageID# <pageID>
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), Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 4 of 16 PageID# <pageID>
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)). Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 5 of 16 PageID# <pageID>
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.” Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 6 of 16 PageID# <pageID>
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). Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 7 of 16 PageID# <pageID>
(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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 8 of 16 PageID# <pageID>
(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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 9 of 16 PageID# <pageID>
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. Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 10 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 11 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 12 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 13 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 14 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 15 of 16 PageID# <pageID>
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 Case 1:23-cv-00376-TFM-N Doc# 15 Filed 11/21/24 Page 16 of 16 PageID# <pageID>
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