United States District Court, N.D. Georgia, Atlanta Division
HALIMAH Y. HASSAN, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, United States Postal Service Agency, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Alan J.
Baverman's Final Report and Recommendation 
(“Final R&R”). The Final R&R recommends
dismissal of Plaintiff Halimah Y. Hassan's
(“Plaintiff”) Second Amended Complaint 
pursuant to the Magistrate Judge's frivolity
determination under 28 U.S.C. § 1915(e). Also before the
Court are Plaintiff's Objections  to the Final
April 15, 2016, Plaintiff, pro se filed her Initial
Complaint  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  (the “April 15th Order”). 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. ( at 13).
5, 2016, Plaintiff filed her Second Amended Complaint .
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.” ( 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 “due to [alleged] disparities in
treatment pertaining to a Junior PSE and discrepancies in
pay” and April 16, 2014 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).
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.” ( 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. ( 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. ( at 11-12).
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.” ( 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.”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).
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).
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).
Pro Se Pleading Standard
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.
Review of Magistrate Judge's Final R&R
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 ...