FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13569

Non-Argument Calendar

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D. C. Docket No. 09-00033-CV-BAE-6

CAROL WILKERSON,

Plaintiff-Appellant,

versus

H&S, INC.,

d.b.a. Shoney's Inc.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(February 16, 2010)

Before DUBINA, Chief Judge, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

Appellant Carol Wilkerson appeals pro se the sua sponte dismissal of her
complaint for failure to attach her right-to-sue letter to her complaint and

demonstrate that she exhausted administrative remedies. She filed her sexual

harassment case, brought under Title VII, 42 U.S.C. § 2000e-2(a), in forma

pauperis. The magistrate judge recommended that the district court exercise its

authority under 28 U.S.C. § 1915(e)(2)(B) to dismiss her complaint sua sponte

because she did not attach her right-to-sue letter from the Equal Employment

Opportunity Commission (“EEOC”), and, therefore, did not show that she

exhausted administrative remedies. Wilkerson filed a timely objection to the

magistrate judge’s Report and Recommendation, to which she attached a copy of

her right-to-sue letter. Wilkerson argued that her failure to attach the letter to the

complaint was excusable because she is a pro se litigant and did not know she was

required to attach her right-to-sue letter to her complaint. The district court denied

Wilkerson’s objections, adopted the magistrate judge’s Report and

Recommendation, and dismissed the case with prejudice.

Under § 1915(e)(2)(B), a court shall dismiss a case proceeding in forma

pauperis “at any time if the court determines that . . . the action . . . is frivolous or

malicious” or “fails to state a claim on which relief may be granted.” Dismissal of

an in forma pauperis action under § 1915(e)(2)(B)(i) as frivolous is reviewed for

abuse of discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d

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1309, 1315 (11th Cir. 2002). “A district court abuses its discretion if it applies an

incorrect legal standard, follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous.” Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).

Review of a dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim,

by contrast, is reviewed de novo. Alba v. Montford, 517 F.3d 1249, 1252 (11th

Cir.), cert. denied, 129 S. Ct. 632 (2008). The district court’s factual findings are

reviewed for clear error. See, e.g., Mitchell v. Hillsborough County, Fla., 468 F.3d

1276, 1282 (11th Cir. 2006) (noting that standard in conducting de novo review of

entry of a judgment in a bench trial). Failure to state a claim under

§ 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to

state a claim under Fed. R. Civ. P. 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,

1490 (11th Cir. 1997). Pro se briefs and pleadings are to be construed liberally.

See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

In order to sue in court for violations of Title VII, a plaintiff must exhaust

administrative remedies, which means she must receive a right-to-sue letter from

the EEOC. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001); see

also 42 U.S.C. § 2000e-16(c). This court has held “that receipt of a right-to-sue

letter is not a jurisdictional prerequisite to suit, but rather, is a statutory

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precondition which is subject to equitable modification.” Forehand v. Fla. State

Hosp. at Chattahoochee, 89 F.3d 1562, 1569-70 (11th Cir. 1996); see also Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S. Ct. 1127, 1135, 71 L. Ed. 2d

234 (1982).

Upon review of the record and the appellant’s brief, we vacate and remand.

Wilkerson filed a copy of her right-to-sue letter in her objections to the

magistrate’s report, along with an explanation that, as a pro se litigant, she was not

aware that she had to file the letter with her complaint. In issuing its order

adopting the report and dismissing the complaint, the district court did not address

this argument. In doing so, it clearly erred by adopting a factual finding that no

right-to-sue letter had been filed, when in fact Wilkerson had filed it along with her

objections. Because the right-to-sue letter demonstrates she exhausted her

administrative remedies, and because the district court failed to address this

argument, the district court erred and abused its discretion in dismissing her

complaint. Accordingly, we vacate the order of dismissal and remand the case for

further proceedings.

VACATED AND REMANDED.

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