United States District Court, D. North Dakota, Southwestern Division
CHARLES S. MILLER, Jr., Magistrate Judge.
This matter is currently before the Court for a review pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth below, the undersigned concludes that plaintiff, Conrad Little Bear, has failed to articulate a cognizable federal claim and that this action is therefore subject to dismissal.
Little Bear initiated the above-entitled action pro se with the submission of a motion for leave to proceed in forma pauperis and a complaint. He alleged in his complaint that he "was an employee of the BIA and was wrongfully terminated by the BIA superintendent for retaliatory conduct." Docket No. 1-1. However, he did not identify the date on which his employment with the BIA was terminated, describe with any particularity the events precipitating his termination, or otherwise articulate a statutory or constitutional basis for his claim. Rather, he made an oblique reference to an April 29, 2010, confrontation between himself and Bureau of Indian Affairs ("BIA") Superintendent Earl Silk over his job performance.
An "Incident Report" dated September 29, 2010, was attached to Little Bear's complaint. It stated:
I arrived at the BIA, Agency Office #194 at approximately 2:35 p.m. in Wednesday, September 29, 2010, and started my routine of housekeeping at this building - checking downstairs and then I moved up the 2nd floor lavel (obtained mop and accessories). Shortly thereafter I began to gather the trash from the offices on the 2nd floor. While I gathered the trash several Bureau employees asked about a fight that occurred outside the building between the Superintendent's (Earl Silk) son and a student from the high school. Mr. Silk's son was working at this time in a "temporary" BIA employment status with the ARRA Part if BIA, Facilities Management Branch.
I completed with the 2nd floor and went downstairs and started picking up the trash in Social Services. Jackie (Social Services Administration Assistant) stopped me and asked "If I saw the fight outside", I said no, but I heard about it. I told her earlier when I was at the Fort yates Police Department, I did see him there (Superintendent's son) - answering questions. She then asked me if he got arrested and I told her I didn't know.
During the above discussion the Superintendent was in the work station of Jerilyn White Mountain and he undoubtedly heard what was said. I did not realize that he was in the Social Services office area until I saw him rush out of Ms. White Mountain's office. I proceeded to continue to pick up trash in this office.
At 4:10 my supervisor, Steve Yellow, Facilities Manager, came looking for me and told me to follow him to the Superintendent's office. When we arrived at the Superintendent's office I saw that Mr. Silk was angry as he was pacing back and forth in his office, all the while he was breathing very heavily (a form of venting his anger). He told Steve Yellow to write down the time, then he started to chew me out about this building being filthy. During this episode I stood by the water cooler and he shouted at me to sit down! I looked at him and I said do I have to? Still hyperventilating and in a uncontrollable tone of voice, he spoke loudly and said "I want my office done every day, I looked at him and he had his head down and I said "is this uncontrolled anger all about your son?" He didn't say anything, nor did he respond to my question. I then told him I am the only one cleaning three (3) buildings, he stated he realized that. He then stated, look at the front entrance - it's filthy.
After he got done chewing me out, he was still breathing uncontrollably with heavily breathing and he said no go - get back to work.
The incident at this office took about ten (10) minutes, at 4:30 pm is when I left to continue my job. My supervisor Steve Yellow looked straight ahead and didn't make nay remarks or offer to give my any directive(s).
A few days later (Monday October 4, 2010), I was handed a change of hours which I contested and wrote a separate response to.
(Docket No. 1-2) (errors in original).
Also attached to Little Bear's complaint was a letter from Little Bear to the Equal Employment Opportunity Commission ("EEOC") dated September 28, 2011. The letter stated:
The purpose of this notice is my request for withdraw of EEO hearing per telephonic conference of 9-21-2011.
As I am the aggrieved person, I may bypass the administration complaint and process the file civil action directly in United States District Court provided by EEO upon written notice of intent to sue under the age discrimination in the Employment Act of 1967.
(Docket No. 1-3).
On March 12, 2012, the court issued an order granting Little Bear's motion for leave to proceed in forma pauperis and further directing Little Bear to file an amended complaint, opining:
Little Bear's complaint is deficient to the extent that it does not provide any detail as to when, why, or how his employment was allegedly terminated. The "Incident Report" attached to the complaint is of little help as it says nothing about Little Bear's alleged termination. Rather, it indicates that Little Bear's hours were changed days after his confrontation with Silk on September 29, 2011. [footnote omitted]
This lack of specificity is problematic in at least two respects. First, the complaint in its present form does not provide defendants with sufficient notice of Little Bear's claim. Second, the complaint does not clearly articulate the legal basis on which Little Bear's claims rest. [footnote omitted]. Thus, Little Bear has not provided defendants ...