United States District Court, S.D. Mississippi, Northern Division
CARL R. BROWN PLAINTIFF
T. BROWN, ET AL. DEFENDANTS
REPORT AND RECOMMENDATION
Keith Ball UNITED STATES MAGISTRATE JUDGE
the Court is a complaint filed by Carl R. Brown, who is
proceeding pro se and in forma pauperis.
See 28 U.S.C. § 1915. Defendants filed a Motion
to Dismiss  pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, to which Brown has filed two
separate responses , . For the reasons that follow,
the undersigned finds that that the Motion to Dismiss should
be granted in part and denied in part.
FACTS AND PROCEDURAL HISTORY
Brown filed this action, he was incarcerated at the Federal
Correctional Complex (“FCC”), located in Yazoo
City, Mississippi. Brown alleges claims of employment
discrimination, conspiracy to discriminate, and retaliation
related to his job while he was an inmate at FCC Yazoo City.
Defendant are employees of the facility, as follows: Tiffany
Brown and Candace Trotter, teachers; Catherine Murtagh,
Education Specialist; O'Shauna Riley Elery, Education
Technician; and Dontess Dennis, Assistant Education
Supervisor. In sum, Brown alleges that Defendants
discriminated against him in February 2016 based on his
religion, thereby resulting in a cut in his pay and
constructive discharge from his job.
filed a charge of discrimination under Title VII of the Civil
Rights Act of 1964 with the Equal Employment Opportunity
Commission (“EEOC”) on June 1, 2016. [1-1] at 1.
14, 2016, the EEOC issued a right to sue letter to Brown.
Id. at 2. Thereafter, on October 22, 2016, Brown
mailed his complaint, which the Court received and filed on
October 25, 2016. [1-4];  at 1. The Court observes that
the filing date is beyond the 90-day statute of limitations
period within which to file an action after receiving a
notice of a right to sue. 42 U.S.C. § 2000e-5(f)(1).
complaint, Brown alleges claims pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. He
asserts that jurisdiction is based on 42 U.S.C. § 1981
et seq. and 28 U.S.C. §§ 1331, 1343. 
at 1. Brown also appears to allege that Defendants violated
his Fourteenth Amendment right to equal protection, his First
Amendment rights, and state statutes.  at 2, 5.
responded to the complaint with a motion to dismiss, which is
now briefed and before the Court.
have moved for dismissal based on Plaintiffs failure to state
a claim upon which relief may be granted. Fed.R.Civ.P.
12(b)(6). When considering a motion filed under this rule,
the “court accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the
plaintiff” Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (per curiam)). However, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive a motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted). Finally, because Plaintiff
is proceeding pro se, the Court must “liberally
construe” his complaint and filings. Turner v.
Cain, 647 F. App'x 357, 362 (5th Cir. 2016) (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
argue that Brown's complaint should be dismissed because
they are not proper parties to a suit brought under Title
VII, Title VII does not apply to federal inmates, and this
action is untimely. Brown responds that he should be
considered an employee because the EEOC issued a right to sue
letter to him. He also asserts that the statute of
limitations should be equitably tolled because he was in
lockdown following a prison fight just days before the
expiration of the 90-day statute of limitations period.
without deciding, that Brown's complaint was timely
filed, his Title VII claims should still be dismissed. As an
initial matter, “a Title VII suit against the federal
government [must] name as defendant ‘the head of the
department, agency, or unit, as appropriate. . .
.'” Skoczylas v. Federal Bureau of
Prisons, 961 F.2d 543, 540 (5th Cir. 1992)(quoting 42
U.S.C. § 2000e-16(c)). Plaintiff has named only
individual employees of FCC Yazoo City as defendants, not the
Attorney General. See Id. at 544 (finding that in a
Title VII action against the Bureau of Prisons, the U.S.
Attorney General is the proper defendant). Moreover,
“relief under Title VII is available only against an
employer, not an individual supervisor or fellow
employee.” Foley v. University of Houston
Sys., 335 F.3d 333, 340 n.8 (5th Cir. 2003). Because
Plaintiff has named only individual employees of FCC Yazoo
City as defendants, and not the Attorney General, his Title
VII claim against these defendants should be dismissed.
importantly, another basis for dismissal is that Title VII
does not apply to inmates. The EEOC has concluded that
inmates who work at prisons do not qualify as employees under
Title VII. See EEOC Decision No. 86-7, 1986 WL
38836, at *3 (1986)(finding that the primary purpose of
charging party/inmate's association with respondent's
state correctional facility was incarceration, not
employment, and that job flowed from charging party's
status as a prison inmate). While the Fifth Circuit has not
directly addressed this issue, several circuits have
concluded that inmates who work at prisons are not considered
employees under Title VII. See Wilkerson v. Samuels,
524 F. App'x 776, 779 (3d Cir. 2013); Simon v. Fed.
Prison Indus., 91 F. App'x 161 (1st Cir. 2004);
Williams v. Meese, 926 F.2d 994, 997 (10th Cir.
1991); but see Baker v. McNeil Island Corr. Ct., 859
F.2d 124, 128 (9th Cir. 1998).
Fifth Circuit has, however, determined that prisoners are not
employees in the context of other federal employment
legislation. In Reimonenq v. Foti, 72 F.3d 472 (5th
Cir. 1996), the court concluded that a prisoner is not an
employee for the purposes of the Fair Labor Standards Act
(“FLSA”). Reimonenq, 72 F.3d at 475-76;
see also Loving v. Johnson, 455 F.3d 562, 563 (5th
Cir. 2006)(prisoners who work inside prison for the prison
are not prison's FLSA employees); Alexander v. Sara,
Inc., 721 F.2d 149, 150 (5th Cir. 1983)(prisoners
working inside prison for private employers are not employees
under FLSA). The Fifth Circuit reasoned that the relationship
is not one of employment, but is derived from the
prisoner's status as an inmate. Reimonenq, 72
F.3d at 475 (“[T]he [prison's] control over [the
inmate] does not stem from any remunerative relationship or
bargained-for exchange of labor for consideration, but from
incarceration itself.”)(quoting Vanskike v.
Peters, 974 F.2d 806, 809 (7th Cir. 1992)). Applying the
same logic to Brown's case, the undersigned concludes
that Brown, as a federal prisoner whose job was based on ...