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Hassan v. Brennan

United States District Court, N.D. Georgia, Atlanta Division

October 3, 2017

MEGAN J. BRENNAN, Postmaster General, United States Postal Service Agency, Defendant.



         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [7] (“Final R&R”). The Final R&R recommends dismissal of Plaintiff Halimah Y. Hassan's (“Plaintiff”) Second Amended Complaint [6] pursuant to the Magistrate Judge's frivolity determination under 28 U.S.C. § 1915(e). Also before the Court are Plaintiff's Objections [9] to the Final R&R.

         I. BACKGROUND

         On April 15, 2016, Plaintiff, pro se filed her Initial Complaint [3] against Defendant Megan J. Brennan (“Defendant”), alleging general claims of harassment, retaliation, and wrongful termination. The Magistrate Judge granted Plaintiff leave to proceed in forma pauperis. Because Plaintiff's Initial Complaint constituted an impermissible “shotgun pleading, ” and because she failed to plead facts to state a plausible claim, on April 15, 2016, the Magistrate Judge ordered Plaintiff to file, within twenty-one (21) days, an amended complaint complying with the directions in the order [2] (the “April 15th Order”).[1] The Magistrate Judge also advised Plaintiff that failure to comply with the April 15th Order could result in dismissal for failure to state a plausible claim and for failure to follow a lawful order of the court. ([2] at 13).

         On May 5, 2016, Plaintiff filed her Second Amended Complaint [6]. Plaintiff's Second Amended Complaint provides a revised factual background section in individually numbered paragraphs. Plaintiff alleges many of the same facts as alleged in the Initial Complaint. Plaintiff alleges that “Defendant hired [her] as a Postal Service Employee (PSE) on August 27, 2011, to work as a Markup Clerk in the Central Forward Processing.” ([6] at 2). Plaintiff alleges she was employed until April 14, 2014, “when Defendant [] breached said oral and implied employment contract and violated public policy by terminating Plaintiff in retaliation for her numerous complaints and reports regarding events and practices that created an unfair, threatening, and hostile environment.” (Id.). Plaintiff further alleges that she filed grievances while at two separate post offices, and filed EEOC complaints on April 26, 2013[2] “due to [alleged] disparities in treatment pertaining to a Junior PSE and discrepancies in pay” and April 16, 2014[3] due to alleged discrimination by her manager, Priscilla Rainwater. (Id. at 3-4). Plaintiff provides various examples of alleged discrimination, harassment, and retaliation, including an alleged attempt by a career clerk, Jameelah Johnson, to hit her with a “400 pound metal [t]ram used to carry loads of mail, ” additional verbal assaults by Johnson, and harassment by her manager, James Howard-all of which caused her “stress and humiliation” as a result. (Id. at 3). Plaintiff also states Defendant falsely claims she resigned. (Id. at 4). Finally, Plaintiff alleges Defendant had actual and constructive notice of the “complained of acts, ” failed to prevent retaliation and harassment from occurring, and caused economic injury and damage to Plaintiff. (Id. at 5). Plaintiff then attempts to further address the deficiencies in her Initial Complaint by asserting specific causes of actions, including (1) wrongful termination (breach of contract); (2) wrongful termination (public policy violation); (3) negligent infliction of emotional distress; (4) retaliation; and (5) harassment. (Id. at 5-9).

         On July 26, 2016, the Magistrate Judge issued his Final R&R. In it, he found that Plaintiff's Second Amended Complaint not only fails to comply with his April 15th Order in violation of N.D.Ga. LR 41.3(A)(2), it once again constitutes “shotgun pleading.” ([7] at 9). The Magistrate Judge specifically found that Plaintiff's Second Amended Complaint (1) failed to specify the factual allegations underlying each count; (2) failed to state a statutory basis for her claims; (3) failed to provide a copy of any EEOC charge or other complaint; and (4) failed to attach or otherwise allege that Plaintiff received a notice of right to sue from the EEOC. ([7] at 8-9). The Magistrate Judge also considered various attachments to Plaintiff's Second Amended Complaint regarding some of Plaintiff's EEOC charges, and found that (1) Plaintiff's April 26, 2013 charge was settled and thus voluntarily dismissed some time ago and (2) Plaintiff failed to show she exhausted her administrative remedies as to the charge initiated on April 16, 2014. ([7] at 11-12).

         On August 8, 2016, Plaintiff filed her Objections. Plaintiff objects to three statements in the Final R&R. First she objects to the statement that “[s] he had not made clear which facts she provided with the intent of adding context to her claims.”[4] ([9] at 2). She then objects to the Magistrate Judge's statement that “Plaintiff did not specify the factual allegations underlying each count of the complaint, but instead stated in each first paragraph each count that she ‘allege[d] all the allegations contained in the complaint.'” (Id.). Plaintiff finally objects to the statement that “Plaintiff failed to state the statutory basis for her claims.”[5]Included in the final objection is an objection to the Magistrate Judge's determination that Plaintiff did not exhaust all administrative remedies as to her April 16, 2014 EEOC charge. (Id. at 4). She submits a “Notice of Final Action” as an attachment indicating that she in fact received a notice of right to sue. (Id. at 5).


         A. Frivolity Review

         A court must dismiss a complaint filed in forma pauperis if at any time the court determines the action is frivolous or malicious or that it fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6).” Wilkerson v. H&S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under this standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         Review for frivolousness, on the other hand, “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has little or no chance of success, ” that is, when it appears “from the face of the complaint that the factual allegations are ‘clearly baseless' or that the legal theories are ‘indisputably meritless.'” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Neitzke, 490 U.S. at 327). “[I]f the district court sees that an affirmative defense would defeat the action, a [dismissal on the grounds of frivolity] is allowed.” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 (11th Cir. 1990).

         B. Pro Se Pleading Standard

         Complaints filed pro se must be construed liberally and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). Nevertheless, a pro se complaint must comply with the threshold requirements of the Federal Rules of Civil Procedure, and must properly state a claim upon which relief can be granted. See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App'x 368, 371 (11th Cir. 2005); Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir. 2008).

         C. Review of Magistrate Judge's Final R&R

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United ...

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