Kelly McSean v. Mary Lemons

Summary

The United States District Court for the Eastern District of Missouri grants Kelly McSean leave to proceed in forma pauperis and assesses an initial partial filing fee of $24.75. On initial review under 28 U.S.C. § 1915(e)(2), the court dismisses without prejudice McSean’s First Amendment retaliation claim against Mary Lemons, holding that alleged yelling and nonthreatening verbal harassment did not constitute sufficiently adverse action. The court denies McSean’s motion to appoint counsel as moot.

Holdings

1. McSean failed to state a First Amendment retaliation claim because the alleged yelling and comments, without threatening language or other intimidating or retaliatory conduct, would not chill a person of ordinary firmness from continuing to engage in protected activity.
2. The complaint was dismissed without prejudice under 28 U.S.C. § 1915(e)(2) for failure to state a claim upon which relief may be granted.

Questions Presented

1. Whether McSean's allegations that Lemons yelled and made nonthreatening comments after McSean filed a grievance plausibly established adverse action sufficient to support a First Amendment retaliation claim under 42 U.S.C. § 1983.
2. Whether the complaint was subject to dismissal during in forma pauperis screening under 28 U.S.C. § 1915(e)(2) for failure to state a claim.

Disposition

dismissed