IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION STAN RICKY MITCHELL PLAINTIFF

v. 4:23-CV-00899-BRW

MODERN MARKETING AND COMMERCE, ET AL. DEFENDANTS ORDER Pending is Plaintiff’s motion for leave to proceed in forma pauperis (Doc. No. 1). Plaintiff was employed by Defendant from March 2022 through June 9, 2022, when he was “fired.” Plaintiff alleges that he was “constructively discharged” based on his age. To assert an age discrimination claim under the ADEA, Plaintiff “must have first exhausted his administrative remedies by filing a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred.”1 Plaintiff has not alleged that he ever filed a charged with the EEOC nor has he explained why equitable tolling should apply.2 At the latest, Plaintiff had to file a charge with the EEOC by December 6, 2022. A district court has the authority to dismiss a case sua sponte for failure to state a claim.3 Because he has failed to exhaust his administrative remedies, Plaintiff cannot move forward with this case.

1Moses v. Dassault Falcon Jet-Wilmington Corp,

(8th Cir. 2018); see also

(d)(1)(A) (ADEA’s 180-day limitation period). 2Equitable tolling may be applied to the filing of an EEOC claim. However, equitable tolling is “an exception to the rule, and should therefore be used only in exceptional circumstances.” Dring v. McDonnell Douglas Corp.,

(8th Cir. 1995). 3See Smith v. Boyd,

(8th Cir. 1991). Accordingly, this case is DISMISSED without prejudice and the motion for leave to proceed in forma pauperis (Doc. No. 1) is MOOT. If Plaintiff, in fact, filed a charge with the EEOC he may file a motion to reopen and include a copy of the charge and the notice of rights to sue letter. IT IS SO ORDERED this 3d day of October, 2023.

Billy Roy Wilson UNITED STATES DISTRICT JUDGE