NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

 

:

Omar U. Alaji, :

: 1:11-cv-03178 (RMB/KMW)

Plaintiff, : 

:

v. :

: OPINION

New Jersey Air National Guard, :

:

Defendant. :

:

 

Appearances: 

Omar U. Alaji

#1687 Prospect Park

Brooklyn, NY 11233

Plaintiff, pro se

Bumb, United States District Court Judge.

Plaintiff, appearing pro se, seeks to bring this action in

forma pauperis. See 28 U.S.C. § 1915. This Court grants in

forma pauperis status and, as required by 28 U.S.C. §

1915(e)(2)(B), screens the Complaint for dismissal. For the

reasons set forth below, the Court will require a further

submission from Plaintiff. 

I. BACKGROUND

On May 24, 2011, Plaintiff Omar U. Alaji filed a complaint

and motion for leave to proceed in forma pauperis in the Eastern

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District of New York, alleging violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e-17 (“Title

VII”) against the New Jersey Air National Guard. See Dkt. Ent.

1, 2. Plaintiff alleges that the National Guard discriminated

against him because he is African-American and Muslim. On May

31, 2011, the matter was transferred to the District of New

Jersey. See Dkt. Ent. 3. 

 Plaintiff alleges the following in his Complaint:

I believed [sic] I was discriminated against by the New

Jersey National Guard when I was accepted for enlistment but

then rejected in the span of a few days in January 2003. I

believed [sic] that this decision was made based on

discriminatory remarks received by the U.S. Air Force

Reserves, where I was unfairly denied security clearance.

Compl. at page 4. Plaintiff attached a letter from the Equal

Employment Opportunity Commission (“EEOC”) to his Complaint,

which informed Plaintiff that “the EEOC has no jurisdiction to

investigate your allegations because they are untimely.” See

Compl. Attachment A. 

II. STANDARD FOR SUA SPONTE DISMISSAL

Pursuant to 28 U.S.C. § 1915(e)(2), “the court shall dismiss

the case at any time if the court determines that...the action...

fails to state a claim on which relief may be granted.” The

Court thus must consider whether the complaint “contain[s]

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Sheridan v. NGK Metals

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Corp., 609 F.3d 239, 263 n. 27 (3d Cir. 2010) (quoting Ashcroft

v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (internal

quotation marks omitted)). “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.” Id. (quoting Iqbal, 129 S.Ct. at 1949). 

The Court conducts a three-part analysis:

First, the court must “tak[e] note of the elements a

plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at

1947. Second, the court should identify allegations that,

“because they are no more than conclusions, are not entitled

to the assumption of truth.” Id. at 1950. Finally, “where

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.” Id.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). 

When reviewing a pro se complaint, however, “the court has an

obligation to construe the complaint liberally.” Giles v.

Kearney, 571 F.3d 318, 322 (3d Cir. 2009); see also Erickson v.

Pardus, 551 U.S. 89 (2007). 

III. ANALYSIS

“A plaintiff bringing an employment discrimination claim

under Title VII must exhaust his administrative remedies by

complying with the procedural requirements set forth in 42 U.S.C.

§ 2000e–5.” Fernandez v. Rose Trucking, Civ. No. 10–3409, 2011

WL 2065064, at *1 (3d Cir. 2011). “Those requirements include

filing a complaint with the EEOC or its state equivalent within

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300 days of the alleged violation.” Id. (citing 42 U.S.C. §

2000e–5(e)(1)). “Failure to exhaust administrative remedies does

not affect the District Court's subject matter jurisdiction,

however.” Id. (citing Robinson v. Dalton, 107 F.3d 1018, 1021

(3d Cir. 1997)). “Rather, failure to exhaust in Title VII cases,

which is akin to failing to comply with a statute of limitations,

is an affirmative defense which must be pleaded by the

defendant.” Id. (citing Williams v. Runyon, 130 F.3d 568, 573

(3d Cir. 1997).

“As a general proposition, sua sponte dismissal is

inappropriate unless the basis is apparent from the face of the

complaint.” Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002) 

Here, Plaintiff’s complaint clearly indicates that the alleged

discriminatory conduct occurred on January 13, 2003. See Compl.

at page 3. Plaintiff also attached to his Complaint a letter

from the EEOC indicating that his allegations were untimely

because they occurred more than 300 days before he filed his

charge on April 7, 2011. See Compl. Attachment A. Thus,

Plaintiff’s failure to exhaust his administrative remedies is

apparent from the face of the Complaint. 

In an abundance of caution, however, the Court will permit

Plaintiff an opportunity to explain his delay in pursuing his

allegations for approximately eight years. To avoid dismissal of

his claim, Plaintiff must submit an affidavit or other statement,

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sworn under penalty of perjury, explaining his delay in pursuing

his claim. If Plaintiff fails to provide an adequate explanation

for the delay, his Complaint will be dismissed. 

IV. CONCLUSION

For the reasons stated above, Plaintiff must submit an

affidavit or other statement, sworn under penalty of perjury,

explaining his delay in pursuing his discrimination claim. If

Plaintiff fails to explain the delay, his Complaint will be

dismissed. An appropriate order follows.

Dated: June 20, 2011 s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

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