Table of Contents

I. The standard of review is de novo. 4

II. Tate’s pro se complaint stated a claim under this Court’s case law. 4

III. Assuming arguendo that Tate’s complaint failed to state a claim, the district court still erred by dismissing the action sua sponte and without giving Tate an opportunity to amend his complaint to remedy the deficiency. 7

A. Tate had a right to amend his complaint “as a matter of course” under Federal Rule of Civil Procedure 15(a). 7

B. The district court erred by dismissing this action without giving Tate an opportunity to amend his complaint. 8

C. The district court erred by dismissing the whole action instead of just the complaint. 12

Conclusion 14

Certificate of Compliance with Rule 32 15

Certificate of Service 16

Table of Authorities

Cases

Arnett v. Webster, 658 F.3d 742 (7th Cir. 2011)........................................ 3

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................. passim

B. Willis, C.P.A., Inc. v. BNSF Railway Corp., 531 F.3d 1282 (10th Cir. 2008)................................................................................................................... 11

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........................... 4, 9

Benjamin v. United States, 833 F.2d 669 (7th Cir. 1987)..................... 11

DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000)........................................ 3

Geier v. Missouri Ethics Commission, 715 F.3d 674 (8th Cir.2013)..... 11

Gomez v. USAA Federal Savings Bank, 171 F.3d 794 (2d Cir. 1999).... 8

Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir. 2002).......... 8

Green v. New Jersey, 494 F. App’x 209 (3d Cir. 2012).............................. 7

Heck v. Humphrey, 512 U.S. 477 (1994).................................................... 9

Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc)........................ 8

Luevano v. Wal-Mart Stores, Inc.
722 F.3d 1014 (7th Cir. 2013)....................................................... passim

Moore v. Mahone, 652 F.3d 722 (7th Cir. 2011)................................. 9–10

Mountain Home Flight Service, Inc. v. Baxter County, Arkansas, 758 F.3d 1038 (8th Cir. 2014)......................................................................................... 11

Moya v. Schollenbarger, 465 F.3d 444 (10th Cir.2006)......................... 11

Perkins v. Kansas Department of Corrections, 165 F.3d 803 (10th Cir. 1999) 8

Swanigan v. City of Chicago, 775 F.3d 953 (7th Cir. 2015).................... 7

Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008)............................ 5

Statutes

28 U.S.C. § 1915(e)(2)......................................................................... passim

28 U.S.C. § 1983............................................................................................ 9

Americans with Disabilities Act................................................................. 2

Title VII of the Civil Rights Act of 1964
42 U.S.C. §§ 2000e–2000e-17............................................................ 1, 2

....

Rules

Federal Rule of Civil Procedure 12(b) ................................................. 4–7

Federal Rule of Civil Procedure 15(a) ........................................... 6–7. 12

Federal Rule of Civil Procedure 59 ........................................................ 11

Federal Rule of Civil Procedure 60 ........................................................ 11

Federal Rule of Appellate Procedure 29.................................................... 1

Other Authorities

U.S. Dist. Ct., N.D. Ill., Filing a Civil Case Without an Attorney: Employment Discrimination. Forms and Instructions (revised Apr. 11, 2014) ..... 10

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, as amended, and other federal laws prohibiting employment discrimination. The Commission can sue to enforce Title VII, but since its resources are limited, the vast majority of Title VII lawsuits are brought by employees and applicants acting as private attorneys general, many of them proceeding pro se. Effective enforcement of Title VII thus requires that courts not dismiss such pro se complaints when the plaintiffs may have valid claims. Accordingly, pursuant to Federal Rule of Appellate Procedure 29, the Commission offers its views.

Statement of Jurisdiction

The plaintiff’s complaint raised claims under Title VII of the Civil Rights Act of 1964 and under the Americans with Disabilities Act, R-1, and the district court accordingly had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4).

The district court entered an order dismissing this action on February 4, 2015. R-7. (It appears, however, that the district court did not enter a final judgment on a separate document.) The plaintiff filed a timely appeal on March 3, 2015. R-8.

Statement of the Issues

1. Did the district court err by applying the wrong legal standard in assessing the sufficiency of Tate’s complaint?

2. Assuming arguendo that Tate’s complaint failed to state a claim, did the district court err by dismissing the action sua sponte and without giving Tate an opportunity to amend his complaint to remedy the deficiency?

Statement of the Case

John Tate filed a pro se complaint in December 2014 alleging sex and disability discrimination and retaliation. R-1. He used a complaint form supplied by the district court, and he printed the information required in the blanks. Question 13 on the form states: “The facts supporting the plaintiff’s claim of discrimination are as follows.” R-1 at 5. The form then gives the plaintiff six lines to supply those facts. Tate’s answer to question 13 was:

I was hired by Defendant on or about August 4, 2014. My most recent position was Driver Trainee. Defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail. On September 5, 2014, I was discharged. I believe I was discriminated against because of my disability, in violation of the Americans with Disabilities Act, my sex, male, and in retaliation for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended.

R-1 at 5.

Tate also moved for leave to proceed in forma pauperis. R-4. On February 4, 2015, the district court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2), which requires a court to “dismiss the case” if the complaint filed by a plaintiff seeking in forma pauperis status “fails to state a claim on which relief may be granted.” R-7.

The court stated the rule established by Iqbal:

“[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ . . . [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.”

R-7 at 1, quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Applying that rule to Tate’s complaint, the court ruled that Tate’s answer to question 13 “offers little more than conclusory legal jargon.” R-7 at 1. The court concluded:

Conclusory recitations of boilerplate law without sufficient facts are not sufficient to provide Defendant with at least the minimal notice of the basis of Tate’s claims as required under the law. Tate has thus failed to allege sufficient facts to state a valid claim. Therefore, the instant action is dismissed.

R-7 at 1–2.

Argument

I. The standard of review is de novo.

This Court reviews de novo dismissals under 28 U.S.C. § 1915(e)(2) for failure to state a claim. Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011) (citing DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000)).

II. Tate’s pro se complaint stated a claim under this Court’s case law.

This Court recently reaffirmed its traditional rule that “‘in order to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex.’” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013). The plaintiff in Luevano was pro se, and this Court held that “even in the wake” of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), such plaintiffs’ pleadings are held to a less stringent standard than those drafted by lawyers. Luevano, 722 F.3d at 1027–28. Further, the Luevano Court held that no plaintiffs, even those represented by lawyers, are required to plead facts establishing a prima facie case. Id. at 1028. Applying these Luevano rules here, the district court erred in dismissing Tate’s complaint because the complaint avers that Tate’s employer took a specified adverse employment action (i.e., discharged him) because of his sex and disability and in retaliation for his protected activity (i.e., complaining internally about the sexual harassment).

The plaintiff in Luevano used a form complaint provided by the district court (the same district court involved here), but she also attached two handwritten pages alleging significantly more facts about her claims than Tate alleged here. The Luevano court, however, stressed that the form complaint “provides just six lines to state the ‘facts supporting the plaintiff’s claims of discrimination,’ implying that the statement should be concise,” id. at 1027, and that the two handwritten pages (and the other documents) that Luevano appended to her complaint were “not required by the concise form provided by the Northern District of Illinois,” id. at 1029. More important, the Luevano court quoted with approval its post-Twombly decision in Tamayo v. Blagojevich, 526 F.3d 1074 (7th Cir. 2008), which held:

[I]n order to prevent dismissal under Rule 12(b)(6), a complaint alleging sex discrimination need only aver that the employer instituted a (specified) adverse employment action against the plaintiff on the basis of her sex. . . . In [employment discrimination] cases, the complaint merely needs to give the defendant sufficient notice to enable him to begin to investigate and prepare a defense.

Luevano, 722 F.3d at 1028, quoting Tamayo, 526 F.3d at 1084–85. That accordingly is the standard that the district court should have applied, and applying that standard, the district court should not have dismissed Tate’s complaint for failure to state a claim.

III. Assuming arguendo that Tate’s complaint failed to state a claim, the district court still erred by dismissing the action sua sponte and without giving Tate an opportunity to amend his complaint to remedy the deficiency.

Assuming arguendo that Tate’s complaint was subject to dismissal under Iqbal because it did not contain sufficient facts to make his claim plausible, the district court erred by dismissing his action sua sponte for three interrelated reasons: (a) under Federal Rule of Civil Procedure 15(a), Tate had a right to amend his complaint “as a matter of course”; (b) this Court’s decisions prohibit district courts from dismissing a complaint with prejudice without first giving the plaintiff an opportunity to amend it; and (c) the district court should have dismissed the complaint only and not the action.

A. Tate had a right to amend his complaint “as a matter of course” under Federal Rule of Civil Procedure 15(a).

Federal Rule of Civil Procedure 15(a) authorizes plaintiffs to amend their complaints once “as a matter of course” within 21 days of when the defendant files its answer or a motion under Rule 12(b), whichever happens first. Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (quoting Rule 15(a)). As in Swanigan, the district court here dismissed Tate’s complaint before the defendant filed either an answer or a Rule 12(b) motion. Therefore,

[b]ecause no responsive pleading or motion to dismiss had been filed, the 21-day clock under Rule 15(a)(1)(B) never started and [Tate] retained the right to amend his complaint.

Id. at 963.

B. The district court erred by dismissing this action without giving Tate an opportunity to amend his complaint.

It is settled law in this and other circuits that a district court should not dismiss a complaint—even a complaint filed by a pro se plaintiff seeking in forma pauperis status, as Tate was—for failure to state a claim without giving the plaintiff an opportunity to amend it, unless no conceivable permissible amendment could cure the deficiency. This Court ruled in Luevano that

IFP applicants whose complaints are dismissed pursuant to a section 1915 screening for failure to state a claim should be granted leave to amend at least once in all cases in which Rule 15(a) would permit leave to amend.

722 F.3d at 1024. See also Green v. New Jersey, 494 F. App’x 209, 211 (3d Cir. 2012) (“[P]rior to dismissing a pro se complaint under § 1915(e), a District Court must give the plaintiff an opportunity to amend his pleading to cure the defect unless such an amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).”); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (even though district court allowed the in forma pauperis prisoner plaintiff to amend his complaint once, it abused its discretion by denying leave to amend a second time, violating the circuit’s rule that “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts”) (emphasis added); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (“‘[A] pro se complaint is to be read liberally. Certainly the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.’”); Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (“Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”).

The need to allow amendment in this case is similar to that in Moore v. Mahone, 652 F.3d 722, 725–26 (7th Cir. 2011), a civil rights case under 28 U.S.C. § 1983 alleging excessive force by law enforcement officials. The district court dismissed Moore’s complaint for failure to state a claim because his claim was barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994), which had held that “a civil rights suit cannot be maintained by a prisoner if a judgment in his favor would ‘necessarily imply’ that his conviction had been invalid.” Moore, 652 F.3d at 723. This Court reversed the district court’s dismissal because Moore “was proceeding pro se” and “may not have heard of Heck v. Humphrey when he filed his complaint.” Moore, 632 F.3d at 725. This Court ruled that the district court should have either: (a) allowed the plaintiff to litigate his complaint but warned him he could not challenge the findings made by the prison disciplinary board; or (b) “permitted him to file a second amended complaint that would delete all allegations inconsistent with those findings.” Id. at 726. The district court erred by instead dismissing the complaint with prejudice. Id. at 725.

While competent litigators are familiar with the holdings in Iqbal and Twombly, the average employee or applicant is not. District courts should therefore not dismiss pro se employment discrimination complaints on Iqbal grounds without first telling the plaintiff, in words a layman can understand, what Iqbal says and giving the plaintiff an opportunity to comply with that rule. See Moore, 532 F.3d at 725–26.

The complaint form asks the plaintiff to state “the facts supporting [his] claim,” but it does not explain and illustrate the difference between facts and legal conclusions. Also, the form gives the plaintiff only six lines to answer question 13, and it would be difficult in many employment discrimination cases to state in only six lines sufficient facts to make the claim seem plausible. Finally, the district court’s instructions to pro se employment-discrimination plaintiffs directs them to describe the facts that led them to believe that they have been discriminated against by the defendant “briefly.” U.S. Dist. Ct., N.D. Ill., Filing a Civil Case Without an Attorney: Employment Discrimination. Forms and Instructions, p. 4 (revised Apr. 11, 2014) (emphasis added), http://www.ilnd.uscourts.gov/home/ ProSe/ forms/english/Employment%20Discrimination-English.pdf.

C. The district court erred by dismissing the whole action instead of just the complaint.

The circuits are split on whether dismissing a complaint differs from dismissing an action. The majority rule, and the rule in this circuit, is that it does. In this Court,

the simple dismissal of a complaint does not terminate the litigation. . . . In contrast, a dismissal of the entire action ends the litigation and forces the plaintiff to choose between appealing the judgment or moving to reopen the judgment and amend the complaint pursuant to Fed. R. Civ. P. 59 or Rule 60.

Benjamin v. United States, 833 F.2d 669, 671 (7th Cir. 1987) (emphasis added). See also Mountain Home Flight Serv., Inc. v. Baxter Cnty., Ark., 758 F.3d 1038, 1045-46 (8th Cir. 2014) (“‘This distinction—between a dismissal of a complaint and a dismissal of an entire action—depends on whether the court intended the dismissal to be a final, appealable order.’”) (quoting Geier v. Missouri Ethics Comm'n, 715 F.3d 674, 677 (8th Cir.2013)); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1296 (10th Cir. 2008) (“‘A dismissal of the complaint is ordinarily a non-final, nonappealable order (since amendment would generally be available), while a dismissal of the entire action is ordinarily final.’”) (quoting Moya v. Schollenbarger, 465 F.3d 444, 448–49 (10th Cir.2006)).

Thus the normal rule in this Court is that if the district court dismisses a complaint, that order is not final, and the plaintiff should move for leave to amend the complaint rather than filing an appeal. The district court in this case dismissed Tate’s action rather than just his complaint. R-7 at 2 (“Therefore, the instant action is dismissed.”) (emphasis added). This Court has held, however, that even when a district court is screening a complaint filed by a person seeking in forma pauperis status, the court should dismiss the complaint only, and not the action.

Section 1915 requires the district court to dismiss only the complaint, not the entire action, and the court should grant leave to amend in all cases in which a fee-paying plaintiff would enjoy leave to amend under Rule 15(a).

Luevano, 722 F.3d at 1025 n.5 (emphasis added).

Conclusion

Accordingly, the Commission respectfully urges this Court to reverse the order dismissing this action and remand the case to the district court for appropriate action.