UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

RICHARD MAKUNGU, )

)

Plaintiff, )

) 

v. ) CAUSE NO.: 3:16-CV-86-TLS

)

MORNINGSIDE NURSING AND )

MEMORY CARE, )

)

Defendant. )

OPINION AND ORDER

Richard Makungu, a Plaintiff proceeding pro se, filed an Employment Discrimination

Complaint [ECF No. 1] against the Defendant, Morningside Nursing and Memory Care. He also

filed a Petition to Proceed Without Pre-Payment of Fees and Costs [ECF No. 2]. For the reasons

set forth below, the Plaintiff’s Petition is DENIED. The Plaintiff’s Complaint is DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and he is GRANTED

additional time to amend his Complaint, accompanied either by the statutory filing fee or another

Petition to Proceed Without Pre-Payment of Fees and Costs. If the Plaintiff fails to amend his

Complaint within the time allowed, the Clerk will be directed to close this case without further

notice to the Plaintiff.

DISCUSSION

Ordinarily, a plaintiff must pay a statutory filing fee to bring an action in federal court. 28

U.S.C. § 1914(a). However, the federal in forma pauperis (IFP) statute, 28 U.S.C. § 1915,

provides indigent litigants an opportunity for meaningful access to the federal courts despite their

inability to pay the costs and fees associated with that access. See Neitzke v. Williams, 490 U.S.
319 (1989). To authorize a litigant to proceed IFP, a court must make two determinations: first,

whether the litigant is unable to pay the costs of commencing the action, 28 U.S.C. § 1915(a)(1);

and second, whether the action is frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief against a defendant who is immune from such relief, 28

U.S.C. § 1915(e)(2)(B). 

Under the first inquiry, an indigent party may commence an action in federal court,

without prepayment of costs and fees, upon submission of an affidavit asserting an inability “to

pay such costs or give security therefor.” 28 U.S.C. § 1915(a). Here, the Plaintiff’s Petition

establishes that he is unable to prepay the filing fee.

The inquiry does not end here, however. In assessing whether a petitioner may proceed

IFP, a court must look to the sufficiency of a complaint to determine whether it can be construed

as stating a claim for which relief can be granted or seeks monetary relief against a defendant

who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). District courts have the power under

28 U.S.C. § 1915(e)(2)(B) to screen complaints even before service of the complaint on the

defendants, and must dismiss the complaint if it fails to state a claim. Rowe v. Shake, 196 F.3d

778, 783 (7th Cir. 1999). Courts apply the same standard under § 1915(e)(2)(B) as when

addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Luevano v. WalMart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th Cir. 2013).

To state a claim under the federal notice pleading standards, all that a complaint must do

is set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Factual allegations are accepted as true and need only give “‘fair notice of

what the . . . claim is and the grounds upon which it rests.’” EEOC v. Concentra Health Serv.,

2
Inc., 496 F.3d 773, 776–77 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). However, a plaintiff’s allegations must show that his entitlement to relief is

plausible, rather than merely speculative. Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir.

2008). 

The Plaintiff’s Complaint does not identify the federal statute under which this lawsuit is

brought. (Compl. 1–2 (listing several federal statutes that provide a basis of claim and

jurisdiction, with none of these statutes checked).) Despite this, the Plaintiff alleges that he is a

“black African American not paid his wages even when he was cleared of an allegation.”

(Compl. 2 (emphasis omitted).) When directed to state the facts in support of his complaint, the

Plaintiff directs the reader to “see attachments.” (Compl. 2 (emphasis omitted).) These

attachments are (1) a letter from the Indiana State Department of Health informing the Plaintiff

about an allegation of abuse; (2) the Plaintiff’s written statement submitted in response to the

letter; (3) a letter from the Indiana State Department of Health stating that there is insufficient

evidence to support an allegation of abuse and that no further action will be taken; and (4) a letter

from the Plaintiff to his employer informing it of the investigation’s conclusion and a request to

be paid for the days he was suspended due to the investigation.

Because the Complaint identifies the Plaintiff’s race, the Court construes his Complaint

as alleging that the Defendant violated Title VII by discriminating against him on the basis of his

race. Title VII is premised on eliminating discrimination: 1

The Plaintiff also does not indicate whether he filed a charge of discrimination with the Equal

1

Employment Opportunity Commission or the Indiana Civil Rights Commission, nor does he attach a

“Right to Sue Notice” from either of those entities. (Compl. 2.) Although a district court may not, at the

screening phase, dismiss a complaint that alleges a Title VII claim because the plaintiff failed to exhaust

administrative remedies, Kenney v. Prime Recruitors Trucking Co., 611 Fed. App’x 370, 370 (8th Cir.

3
It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate 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.A. § 2000e-2.

Even with the relaxed standards that apply to pro se litigants, see Erickson v. Pardus, 551

U.S. 89, 94 (2007), the Complaint does not set forth any factual allegations that raise the

Plaintiff’s right to relief above the speculative level. Section IV of the form Complaint is

designated as the “Facts in Support of Complaint.” The Plaintiff—without reciting any factual

allegations—refers to attachments showing that an investigation occurred, the Plaintiff was

suspended without pay during that time, and the investigation was terminated without any finding

of wrongdoing by the Plaintiff. Even the most liberal reading of the Complaint fails to reveal an

inference of different or discriminatory treatment based on race, color, religion, sex, or national

origin. Although the Complaint identifies the protected category to which the Plaintiff belongs

and shows that he suffered adverse action by being suspended without pay, the Complaint does

not state that he was harmed based on a protected category or in retaliation for engaging in

protected activity. Because the Plaintiff does not identify the alleged motivation for the adverse

action, the Complaint does not provide the Defendant with fair notice of what the claim is.

Therefore, the Plaintiff’s request to proceed without prepayment of fees will be denied, and the

Complaint will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

2015) (per curiam); McIntyre v. City of Wilmington, 360 Fed. App’x 355, 356 (3d Cir. 2010) (per

curiam), a defendant may raise a plaintiff’s lack of a right-to-sue letter as an affirmative defense, Worth

v. Tyer, 276 F.3d 249, 259 (7th Cir. 2001), subjecting the plaintiff’s Title VII claim to possible dismissal

at any time prior to the receipt of such a letter, Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991).

4
The deficiency in the Complaint is of the type that can be easily cured if the Plaintiff 

identifies the actions that were taken against him because of a protected status. Cf. Tamayo, 526

F.3d at 1084 (explaining that the pleading standard for “simple claims of race or sex

discrimination” is minimal and requires only that the plaintiff aver that the employer instituted a

certain adverse employment action against the plaintiff on the basis of sex or race). The Court

will grant the Plaintiff until June 24, 2016, to file an amended complaint. See Luevano, 722 F.3d

at 1022 (stating that a litigant proceeding under IFP statute has the same right to amend a

complaint as fee-paying plaintiffs have). When drafting his amended complaint, rather than just

writing “see attachments,” in Section IV of the form Complaint, which is titled “Facts in Support

of Complaint,” the Plaintiff should state the key facts supporting his claim. He should also

provide citations to the attached exhibits as needed. If the Plaintiff elects to file an amended

complaint, he must also file a new Petition to Proceed Without Prepayment of Fees and Costs or

pay the filing fee. If the Plaintiff does not file an amended complaint by June 24, 2016, the Court

will direct the Clerk to close this case.2

 As already discussed, it is unclear whether the Plaintiff actually intends to allege that he was 2

subjected to racial discrimination. The Plaintiff my resolve this vagueness by completely filing out the

form Complaint and/or adequately alleging a Title VII claim. The Court notes that if the Plaintiff is

merely asserting that he should have been paid during the time he was suspended, this Court likely lacks

subject matter jurisdiction to adjudicate the Plaintiff’s claim. Federal courts are courts of limited

jurisdiction, meaning that they possess only those powers granted by the Constitution and by statute.

Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1316 (7th Cir. 1997). Generally, a federal court cannot

hear a case unless a plaintiff’s claim invokes federal question jurisdiction or another independent

statutory grant of jurisdiction to the district courts. However, a plaintiff may file a case in federal court

alleging a violation of state law if the requirements of 28 U.S.C. § 1332 are met. As currently pled, the

Plaintiff’s Complaint does not allege a sufficient amount in controversy to fall within this statute.

Further, although the Plaintiff lists a Michigan address, he does not plead his own citizenship—that is,

where he is domiciled. If a federal court cannot hear the Plaintiff’s claim, he may seek relief in a state

court of competent jurisdiction.

5
CONCLUSION

For the foregoing reasons, the Court DENIES the Plaintiff’s Petition to Proceed Without

Prepayment of Fees and Costs [ECF No.2], and DISMISSES the Complaint WITHOUT

PREJUDICE. The Plaintiff is GRANTED until June 24, 2016, to file an amended complaint,

accompanied by a new Petition to Proceed Without Prepayment of Fees and Costs or the filing

fee.

SO ORDERED on May 18, 2016.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

6