UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

FILED 

TIME /Z : 2.SP/111 

~EB - 2 2018 

RICHARD W. NAGEL 

Clerk of Court 

CINCINNATI, OHIO 

LAPAULA BABER, Case No. 1: 18-cv-62 

LEC, 

Plaintiff, 

v. 

Defendant. 

Barrett, J. 

Bowman, M.J. 

REPORT AND RECOMMENDATION 

Plaintiff, who resides in Cincinnati, Ohio, has filed a pro se complaint. (See Doc. 

1, Complaint). By separate Order issued this date, plaintiff has been granted leave to 

proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court 

for a sua sponte review of the complaint to determine whether the complaint, or any 

portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim 

upon which relief may be granted or seeks monetary relief from a defendant who is 

immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). 

In enacting the original in forma pauperis statute, Congress recognized that a 

"litigant whose filing fees and court costs are assumed by the public, unlike a paying 

litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or 

repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 , 112 S.Ct. 1728, 118 L.Ed.2d 

340 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 

L.Ed.2d 338 (1989)). To prevent such abusive litigation, Congress has authorized 

federal courts to dismiss an in forma pauperis complaint if they are satisfied that the 

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action is frivolous or malicious. Id.; see also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint 

may be dismissed as frivolous when the plaintiff cannot make any claim with a rational 

or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29, 109 S.Ct. 

1827, 104 L.Ed .2d 338 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th 

Cir.1990). An action has no arguable legal basis when the defendant is immune from 

suit or when plaintiff claims a violation of a legal interest which clearly does not 

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the 

allegations are delusional or rise to the level of the irrational or "wholly 

incredible." Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not 

accept as true factual allegations that are "fantastic or delusional" in reviewing a 

complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir.2010) 

(quoting Neitzke, 490 U.S. at 328). 

Congress also has authorized the sua sponte dismissal of complaints that fail to 

state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii). A 

complaint filed by a pro se plaintiff must be "liberally construed" and "held to less 

stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 

U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). By the same token, 

however, the complaint "must contain sufficient factual matter, accepted as true, to 

'state a claim to 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) (quoting Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Hill, 630 F.3d at 470-

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71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure 

to state a claim" under §§ 1915A(b)(1) and 1915(e)(2) (B)(ii)). 

"A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The 

Court must accept all well-pleaded factual allegations as true, but need not "accept as 

true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 

(quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). 

Although a complaint need not contain "detailed factual allegations," it must provide 

"more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 

U.S. at 678 (citing Twombly, 550 U .S. at 555). A pleading that offers "labels and 

conclusions" or "a formulaic recitation of the elements of a cause of action will not 

do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked 

assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must 

"give the defendant fair notice of what the .. . claim is and the grounds upon which it 

rests." Erickson, 551 U.S. at 93 (citations omitted). 

Plaintiffs complaint names "LEC" as the sole Defendant, and states the basis of 

her claim as "wrongful termination." She invokes the jurisdiction of this Court under 28 

U.S.C. § 1343(3), which provides for jurisdiction over a civil rights lawsuit alleging that 

the Defendant, acting under color of State law, deprived an individual of a right secured 

by federal law or the Constitution. (Doc. 1-1) 

This Court lacks subject matter jurisdiction over Plaintiffs complaint under 28 

U.S.C. § 1343(3) or 42 U.S.C. § 1983. It appears that the named Defendant, LEC, is a 

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private employer, and is not a state entity or agency. Plaintiff does not allege, nor can it 

reasonably be inferred, that LEC took any unlawful action under color of State law. 

Plaintiff also fails to identify any right secured by federal law or the Constitution as to 

which she has been deprived. 

Construing Plaintiff's complaint liberally, Plaintiff appears to allege "wrongful 

termination" by her prior employer. (Doc. 1-1). To that extent, the undersigned has 

reviewed the complaint for possible jurisdiction under Title VII of the Civil Rights Act, 42 

U.S.C. § 2000e et seq. Title VII prohibits "employer discrimination on the basis of race, 

color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the 

like." Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct 2517, 2523 (2013) (citing 42 

U.S.C. § 2000e-2(a)). In her complaint, Plaintiff alleges that on an unspecified date, she 

was given a "final write up" by her employer that she did not agree with, and was 

subsequently suspended and terminated. As relief, Plaintiff states that she seeks to be 

returned to her job, to keep her seniority in her former position, and to have her "PTO 

hours" restored. (Doc. 1-2 at 3-4). 

"Before a plaintiff alleging discrimination under Title VII can bring suit in federal 

court, she must satisfy two administrative prerequisites: '(1) by filing timely charges of 

employment discrimination with the EEOC, and (2) receiving and acting upon the 

EEOC's statutory notices of the right to sue."' Nichols v. Muskingum College, 318 F.3d 

674, 677 (6th Cir. 2003)(quoting Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 

1486 (6th Cir. 1989))(other citations omitted). These requirements exist "so that the 

EEOC will have an opportunity to convince the parties to enter into voluntary settlement, 

which is the preferred means of disposing of such claims." Randolph v. Ohio Dept. of 

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Youth Services, 453 F.3d 724, 732 (6th Cir.2006) (citing Parsons v. Yellow Freight Sys., 

Inc., 741 F.2d 871 , 873 (6th Cir.1984)). "Where the plaintiff files suit prior to receiving 

the right to sue letter, the district court is compelled to dismiss the premature action for 

failure to exhaust administrative remedies." Mitchell v. Chapman, 343 F.3d 811 , 821 n. 

10 (6th Cir.2003) (citing Graham-Humphreys v. Memphis Brooks Museum of Art, 

Inc., 209 F.3d 552, 560 (6th Cir.2000)). 

Plaintiff has not alleged any facts showing she exhausted her administrative 

remedies or that she received a notice of right to sue from the EEOC before filing this 

action. Therefore, the complaint fails to state a claim upon which relief may be granted 

and should be dismissed under 28 U.S.C. § 1915(e)(2)(B). In addition, Plaintiff's 

complaint fails to provide any pertinent dates, or the most cursory allegation that would 

support a claim that her employer took any adverse action against her based on 

her race, color, religion, sex, or national origin, sufficient to state a claim under Title VII. 

The lack of detail in the complaint, combined with the lack of information concerning a 

prior EEOC charge, leads the undersigned to recommend dismissal of Plaintiff's 

complaint for failure to exhaust administrative remedies and for failure to state any claim 

on initial screening pursuant to 28 U.S.C. §1915(e). 

IT IS THEREFORE RECOMMENDED THAT Plaintiff's case be DISMISSED with 

prejudice for failure to state a claim. 

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LAPAULA BABER, 

Plaintiff, 

v. 

LEC, 

Defendant. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

NOTICE 

Case No. 1: 18-cv-62 

Barrett, J. 

Bowman, M.J. 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent's objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

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