Prairie Chicken v. Becerra

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LARRY PRAIRIE CHICKEN, 5:22-CV-05065-RAL
Plaintiff,
vs.
XAVIER BECERRA,SECRETARY US DEPT
OF HEALTH AND HUMAN SERVICES,
OFFICIAL CAPACITY,
ORDER GRANTING PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS AND 1915
SCREENING
Defendant.
Plaintiff Larry Prairie Chicken filed a pro se lawsuit under Title VII ofthe Civil Rights Act
of 1964,the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities
Act of 1990. Doc. 1. Prairie Chicken moves for leave to proceed in forma pauperis and has filed
a financial affidavit. Doc. 2. Prairie Chicken has also filed a motion to appoint counsel. Doc. 3.
This Court now screens Prairie Chicken's complaint under 28 U.S.C. § 1915(e)(2).
I. Motion for Leave to Proceed In Forma Pauperis
A federal court may authorize the commencement of any lawsuit without prepayment of
fees when an applicant submits an affidavit stating he or she is unable to pay the costs of the
lawsuit. 28 U.S.C. § 1915(a)(1). "[I]n forma pauperis status does not require a litigant to
demonstrate absolute destitution." Lee v. McDonald's Corp.. 231 F.3d 456, 459 (8th Cir. 2000).
But in forma pauperis status is a privilege, not a right. Williams v. McKenzie. 834 F.2d 152,154
(8th Cir. 1987). Determining whether an applicant is sufficiently impoverished to qualify to
proceed in forma pauperis under § 1915 is committed to the sound discretion of the district court.
Cross V. Gen. Motors Corp.. 721 F.2d 1152, 1157 (8th Cir. 1983). After review of Prairie
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Chicken's financial affidavit, this Court finds that he has insufficient funds to pay the filing fee.
Thus, Prairie Chicken's motion for leave to proceed in forma pauperis. Doc. 2, is granted.
II. 1915 Screening
A. Faetnal Allegations of Prairie Chicken's Complaint
Prairie Chicken claims that Emily Williams, Dr. Michael Williams, and Dr. Josephine
Chase, supervisors at Rapid City Indian Health Services, deliberately gave him a lower evaluation
seore in order to remove him fi:om his position as a provider ofoutpatient alcohol and drug services
for Sioux San Hospital. Doc. 1 at 4-7. He elaims that these aetions began on October 23, 2018,
when these supervisors informed Prairie Chieken and other staff of retirement dates and began
discussing retirement options. Id, at 4.
Prairie Chicken asserts that his Performance Measurement Assessment Plan (PMAP)
evaluation scores in previous years never fell below 3.0 but that his 2019 PMAP score was deflated
to 2.5. Id at 4, 10. He alleges that he did not sign his 2019 evaluation beeause he did not agree
with his score. Id at 4. He alleges that he requested a change in his score to 3.0 or higher, as this
was required for him to continue employment with Indian Health Services and to retain his pay
and benefits. Id Prairie Chieken states that his seore was not changed, even though he provided
documentation of"numbers [and] contacts to change [his] PMAP seore." Id He states that he
instead received a Reduetion in Force notice. See id.
Prairie Chieken claims that he has been discriminated against based on his age, his elaim
of Indian Preferenee, and his gender. Id at 4, 6. He claims that his supervisors provided higher
PMAP scores to employees that they favored. Id at 4. He alleges that female employees are
allowed to stay employed despite performance issues. Id at 6. He specifically alleges that one
female employee is often absent and that Dr. Chase often has to cover for her but that Dr. Chase
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excuses this as "teamwork." Id He also alleges that another female Caucasian employee had
performance issues but was allowed to stay employed after she elaimed that she did not seroll
down far enough in an email that identified those issues. Id at 6-7.
Prairie Chicken also asserts other sources of bias and error on the part of his supervisors.
Id at 4-6. He claims that Dr. Williams was previously Emily Williams' supervisor, but Emily
Williams is now Dr. Williams' supervisor. Id at 5. He asserts that "Dr. Chase has business ties
with" Dr. Williams' spouse. Id Prairie Chieken states that his supervisors were unfamiliar with
his position as a provider of outpatient alcohol and drug services and that they were unsure ofthe
souree ofthe ftmding for the position. Id at 5. He alleges that one stated reason for downgrading
his PMAP score was that he no longer provided a certain methamphetamine program,but he claims
that this program ended because transportation services for the program were no longer provided,
whieh was out of his control. Id Prairie Chicken alleges that another stated reason for his lowered
score was that he was taking longer to complete assessments for substance use disorders. Id He
states that this occurred because a web-based assessment tool was not approved or paid for, whieh
was also out ofhis eontrol, and that his current supervisors failed to offer needed training regarding
the available tools. Id
Prairie Chieken asserts that his supervisors did not respond to his requests for review of his
patient contact numbers and for a ehange to his PMAP score. Id at 6. Instead, he alleges that they
"played dumb" by "claiming to abolish [his] position." Id He claims that his supervisors and the
direetors at Great Plains Area Behavioral Health are unfamiliar with his job duties and the
timeframes for eompleting his tasks. Id He alleges collusion between his supervisors and others
at Rapid City Indian Health Services.
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Prairie Chicken filed a charge with the Equal Employment Opportunity Commission
(EEOC)on June 11, 2019, and that he received a Notice of Right to Sue letter from the EEOC on
April 27, 2022, which is attached to his complaint. Id at 9; Doc. 1-1 at 1-6. The Notice of Right
to Sue letter explains that Prairie Chicken brought two claims for racial, gender, disability, and age
discrimination, as well as for retaliation, alleging that his PMAP score did not accurately reflect
hisjob performance and that he was subjected to a Reduction in Force. Doe. 1-1 at 2. The EEOC
dismissed the PMAP score claim as untimely and investigated the Reduction in Force claim,
ultimately finding that Prairie Chicken "failed to establish a prima facie case of discrimination or
reprisal." Id
Prairie Chicken asks that his PMAP score be raised to a 3.0. Doc. 1 at 10. He also asks
that he be granted continued employment at the Rapid City Health Facility with the same pay and
grade,three years of salary and benefits or $200,000, and attorney's fees. Id
B. Legal Standard
A court when screening under § 1915A must assume as true all facts well pleaded in the
complaint. Estate of Rosenberg v. Crandell. 56 F.3d 35,36(8th Cir. 1995). Pro se and civil rights
complaints must be liberally construed. Erickson v. Pardus. 551 U.S. 89, 94(2007)(per curiam)
(citation omitted); Bediako v. Stein Mart.Inc.. 354 F.3d 835,839(8th Cir. 2004)(citation omitted).
Even with this construction, "a pro se complaint must contain specific facts supporting its
conclusions." Martin v. Sargent. 780 F.2d 1334, 1337(8th Cir. 1985)(citation omitted); see also
Ellis V. Citv of Mirmeapolis. 518 F. App'x 502,504(8th Cir. 2013)(per curiam)(citation omitted).
Civil rights complaints cannot be merely conclusory. Davis v. Hall. 992 F.2d 151, 152(8th Cir.
1993)(per curiam)(citation omitted); Parker v. Porter. 221 F. App'x 481,482(8th Cir. 2007)(per
curiam)(citations omitted).
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A complaint"does not need detailed factual allegations ...[but] requires more than labels
and conclusions, and a formulaic recitation ofthe elements of a cause of action will not do." Bell
Atl. Corp. V. Twomblv. 550 U.S. 544, 555(2007)(internal citation omitted). If a complaint does
not contain these bare essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657,
663-64(8th Cir. 1985). Twomblv requires that a complaint's factual allegations must be "enough
to raise a right to relief above the speculative level on the assumption that all the allegations in the
complaint are true[.]" 550 U.S. at 555 (internal citation omitted); see also Abdullah v. Miimesota.
261 F. App'x 926, 927(8th Cir. 2008)(per curiam)(noting that a "complaint must contain either
direct or inferential allegations respecting all material elements necessary to sustain recovery under
some viable legal theory" (citing Twomblv. 550 U.S. at 553-63)). Further, "a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is
improbable, and that a recovery is very remote and unlikely." Braden v. Wal-Mart Stores. Inc..
588 F.3d 585, 594 (8th Cir. 2009)(intemal quotation omitted)(quoting Twomblv. 550 U.S. at
556).
When a district court determines a plaintiff is financially eligible to proceed in forma
pauperis under 28 U.S.C. § 1915(a), the court must then determine whether the complaint should
be dismissed under 28 U.S.C. § 1915(e)(2)(B). Martin-Trigona v. Stewart. 691 F.2d 856,857(8th
Cir. 1982); see also Kev v. Does. 217 F. Supp. 3d 1006, 1007(E.D. Ark. 2016). The court must
dismiss claims if they "(i)[are] frivolous or malicious;(ii) fail[]to state a claim on which relief
may be granted; or (iii) seek[ ] monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B). The Court will now assess the requisite exhaustion of
administrative remedies and evaluate each individual claim under 28 U.S.C. § 1915.
C. Prairie Chicken's Causes of Action
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1. Administrative Exhaustion of Employment Discrimination Claims
Plaintiffs alleging violation offederal discrimination statutes must first file complaints with
the EEOC. Sellers v. Deere & Co.. 791 F.3d 938, 943 (8th Cir. 2015). This Court can only
consider employment discrimination claims once they have been exhausted through the EEOC
process. See Weatherlv v. Ford Motor Co.. 994 F.3d 940, 944(8th Cir. 2021). The EEOC must
be offered the "initial opportunity to investigate allegations of employment discrimination and to
work with the parties toward voluntary compliance and conciliation." See Parisi v. Boeing Co.,
400 F.3d 583, 585 (8th Cir. 2005).
Prairie Chicken filed a complaint with the EEOC regarding his Title VII, ADEA,and ADA
claims. Doc. 1 at 9; Doc. 1-1 at 1-2. He received a Notice of Right to Sue letter, dated April 27,
2022, explaining that he had the right to file a civil action in United States District Court within
90 days of receipt of the decision denying his claims. Doc. 1-1 at 5. Prairie Chicken filed this
lawsuit on July 26, 2022, 90 days after the issuance of his Notice of Right to Sue letter. Doc. 1.
Thus, he has properly exhausted his administrative remedies through the EEOC and can bring this
lawsuit.
2. Title VII Claims
Under Title VII of the Civil Rights Act of 1964, an "employer" is prohibited from
discriminating against "any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion, sex, or national
origin[.]" 42 U.S.C. § 2000e-2(a)(l). To establish a prima facie case of discrimination based on a
protected class, a plaintiff must show "(1)that she is within the protected class;(2)that she was
qualified to perform her job; (3) that she suffered an adverse employment action; and (4) that
nonmembers of her class ... were not treated the same." Boone v. Larson Mfg. Co.. Inc.. 299 F.
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Supp. 2d 1008,1017(D.S.D. 2003). The Supreme Court ofthe United States has noted that "[t]he
facts necessarily will vary in Title VII cases" and that the prima facie standard discussed above "is
not necessarily applicable in every respect to differing factual situations." McDonnell Douglas
Corp. V. Green. 411 U.S. 792, 802 n.l3 (1973). "An inference of discrimination may be raised by
evidence that a plaintiff was replaced by or treated less favorably than similarly situated employees
who are not in the plaintiffs protected class." Price v. S-B Power Tool. 75 F.3d 362,365(8th Cir.
1996)(citation omitted).
Here, Prairie Chicken alleges facts sufficient to state claims under Title VII. He claims
that he has been treated unfavorably by his employer based on his Native American race and male
gender,that he was qualified to perform his job,that he suffered adverse employment actions, and
that Caucasian and female employees were not treated the same. Doc. 1 at 4-7;^Boone. 299 F.
Supp. 2d at 1017. Thus, he makes a prima facie showing of employment discrimination, and his
claims under Title VII survive § 1915 screening.
3. ADEA Claims
"The ADEA prohibits an employer from discharging 'any individual or otherwise
discriminating] against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age.'" Hindman v. Transkrit Corp.. 145
F.3d 986, 990 (8th Cir. 1998)(alteration in original)(quoting 29 U.S.C. § 623(a)(1)), abrogated
on other grounds bv Torgerson v. City of Rochester. 643 F.3d 1031 (8th Cir. 2011)(en banc).
When a plaintiffs claim of age discrimination is not based on direct evidence of intentional
discrimination, the plaintiff must rely on the prima facie standard discussed above. See id. "The
ADEA protects individuals who are at least forty years old." Id (citing 29 U.S.C. § 631). Thus,
Prairie Chicken must show that he is at least forty years old, that he is qualified to perform his job.
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that he suffered an adverse employment action, and that employees who are not at least forty years
old were treated differently. id (citing Ziegler v. Beverly Enterprises-Minn.. Inc.. 133 F.3d
671,675 (8th Cir. 1998)).
Here, Prairie Chicken alleges facts sufficient to state claims under the ADEA. He claims
that he was over forty years old at the time of the incidents in question, that he was qualified to
perform his job, that he suffered adverse employment actions, and that younger employees were
not treated the same. Doc. 1 at 4-7;^Hindman. 145 F.3d at 990 (citing Ziegler. 133 F.3d at
675). Thus, he makes a prima facie showing of employment discrimination, and his claims under
the ADEA survive § 1915 screening.
4. ADA Claims
The ADA requires employers to provide "reasonable accommodations to the known
physical . . . limitations of an otherwise qualified individual with a disability who is an . . .
employee, unless [they] can demonstrate that the accommodation would impose an undue
hardship." Fennev v. Dakota. Minn., and E. R.R. Co.. 327 F.3d 707, 711 (omissions in original)
(quoting 42 U.S.C. § 12112(b)(5)(A)). "To obtain relief under the ADA,[a plaintiff] must show
that he (1) has a 'disability' within the meaning of the ADA,(2) is a 'qualified individual' under
the ADA, and (3) 'suffered an adverse employment action as a result of the disability.'" Id.
(quoting Duty v. Norton-Alcoa Proppants. 293 F.3d 481,490(8th Cir. 2002)).
Prairie Chicken fails to state a claim under the ADA because he fails to allege that he has
a disability. Prairie Chicken's initial filing with the EEOC alleged that he was discriminated
against "on the bases of race (American Indian), sex (male), disability (mental and physical), and
age (67)[.]" Doc. 1-1 at 2. But in the facts of his complaint, he only alleges that he has "been
discriminated against because of age, Indian Preference, [and] sex" and makes no mention of a
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disability. See Doc. 1 at 6. Prairie Chicken does indicate on his complaint form that his employer
failed to accommodate his disability and that he has been discriminated against based on a
"disability or perceived disability[,]" but he provides no facts at all about any claimed disability.
See id at 8. Even if this Court construed this portion of Prairie Chicken's complaint form along
with his attached Notice of Right to Sue letter as alleging disability discrimination, he still fails to
identify his disability or explain how his alleged adverse employment actions are a result of his
disability as required under Fennev. See 327 F.3d at 711 (citing Dutv. 293 F.3d at 490). Thus,
Prairie Chicken's ADA claims are dismissed without prejudice under 28 U.S.C. §
1915(e)(2)(B)(ii).
III. Motion for Appointment of Counsel
Prairie Chicken has filed a motion for appointment of coimsel. Doc. 3. "A pro se litigant
has no statutory or constitutional right to have counsel appointed in a civil case." Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In determining whether to appoint counsel to a pro
se litigant, this Court considers the complexity ofthe case, the ability of the litigant to investigate
the facts, the existence of conflicting testimony, and the litigant's ability to present his claims. Id
At this time. Prairie Chicken's claims do not appear to be complex, and he is able to investigate
the facts and present his claims adequately. This Court believes that Prairie Chicken is capable of
pursuing his claims pro se at this phase of litigation, and his motion for appointment of counsel.
Doc. 3, is denied at this time.
IV. Order
Accordingly, it is
ORDERED that Prairie Chicken's motion for leave to proceed in forma pauperis, Doc. 2,
is granted and his initial filing fee is waived. It is further
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ORDERED that Prairie Chicken's motion for appointment of counsel, Doc. 3, is denied.
It is further
ORDERED that Prairie Chicken's Title VII and ADEA claims survive § 1915 screening.
It is further
ORDERED that Prairie Chicken's ADA claims are dismissed without prejudice under 28
U.S.C. § 1915(e)(2)(B)(ii). It is further
ORDERED that the Clerk of Court shall prepare and issue a summons for service under
Rule 4(i)(1) and (2)ofthe Federal Rules of Civil Procedure. It is further
ORDERED that the United States Marshals Service shall serve the completed summons,
together with a copy of the complaint. Doc. 1, and this order upon the defendant. It is further
ORDERED that the defendant will serve and file an answer or responsive pleading to the
complaint on or before 60 days following the date of service because the defendant falls under
Fed. R. Civ. P. 12(a)(2). It is finally
ORDERED that Prairie Chicken will keep the court informed of his current address at all
times. All parties are boimd by the Federal Rules of Civil Procedure and by the court's Civil Local
Rules while this case is pending.
DATED December 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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