United States District Court, E.D. North Carolina, Western Division
Robert E. Dockery, Plaintiff,
Army & Air Force Exchange Service, Defendant.
ORDER & MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
Robert Dockery asks the court to allow him to proceed without
paying the required filing fee and other costs associated
with litigation (colloquially known as proceeding “in
forma pauperis” or “IFP”). The court may
grant his request if he submits an affidavit describing his
assets and the court finds that he cannot pay the filing fee.
28 U.S.C. § 1915. In assessing a request to proceed IFP,
the court should consider whether the plaintiff can pay the
costs associated with litigation “and still be able to
provide himself and his dependents with the necessities of
life.” Adkins v. E.I. DuPont de Nemours &
Co., 335 U.S. 331, 339 (1948) (internal quotations
omitted). As part of its evaluation of Dockery's request,
the court must also consider the viability of his claims. If
the court determines that the Complaint is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, it must be dismissed. 28 U.S.C. § 1915(e).
Dockery qualifies for IFP status, the district court should
dismiss his complaint because his claims are barred by the
statute of limitations.
January 2007, Dockery began working for Burger King, a
restaurant operated by the Defendant Army & Air Force
Exchange Service (“AAFES”) at the Grafenwoehr
Main Exchange in Vilseck, Germany. He lives with Multiple
Sclerosis and has a 30% loss of function in his leg.
began having issues with a co-worker in January 2013 who
allegedly drew pictures of him as a monkey and poked him
several times. Dockery claims that managers were aware of
these incidents but did nothing about them. Eventually the
situation escalated, and Dockery punched his coworker.
Dockery lost his job in June 2013 as a result of this
incident, but the coworker only received a letter of
reprimand. Dockery asserts that his employer fired him
because he is disabled, and that management failed to take
reasonable steps to stop the coworker from poking or
otherwise harassing him.
October 2015, over two years after his termination, Dockery
filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Dockery states
in his pleadings that the EEOC found no discrimination in his
case. He says he received the right to sue letter from the
EEOC in “December 2016 or February 2015.” D.E.1
at 9. He filed this action in February 2019.
Application to Proceed in District Court without Prepaying
Fees or Costs
requests permission to proceed without paying the fees and
costs typically associated with filing a civil action. The
court has reviewed Dockery's Application and has
determined that his monthly income does not greatly exceed
his monthly expenditures. The court finds that Dockery lacks
enough resources to pay the costs associated with litigation.
The court thus grants the Application (D.E. 1) and will allow
Dockery to proceed without full prepayment of fees and costs.
The court will now turn to its assessment of Dockery's
Screening Under 28 U.S.C. § 1915
of its evaluation of Dockery's request, the court must
also consider the viability of his claims. 28 U.S.C. §
1915(e). The court reviews a complaint to eliminate those
claims that unnecessarily impede judicial efficiency and the
administration of justice. The court must dismiss any portion
of the complaint it determines 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. Id. § 1915(e)(2)(B). The court may also
dismiss a claim if it is barred by the statute of
limitations. Todd v. Baskerville, 712 F.2d 70, 74
(4th Cir. 1983).
this framework in mind, the court will review each of
Dockery's claims. Dockery alleges that he was harassed
and ultimately fired because of his disability, and generally
asserts his claims under the Civil Rights Act of 1964 and the
Americans with Disabilities Act (“ADA”).
The Statute of Limitations under the Civil Rights Act of
claims that his employer discriminated against him in
violation of Title VII of the Civil Rights Act of 1964. The
Act requires that to sue in federal court a plaintiff must
first file a charge of discrimination with the EEOC either
180 or 300 days after an “alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1).
Dockery filed his charge of discrimination in October 2015,
over two years after his June 2013 termination. Compl. at 3,
4, D.E 1-1 Thus, Dockery's Title VII claim is time
barred. N ...