United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
King's Final Report and Recommendation  (“Final
R&R”) granting in part and denying in part
Defendant Western Express, Inc.'s
(“Defendant”) Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment  (the
“Motion”). The Magistrate Judge recommends
granting Defendant's Motion to Dismiss and dismissing
Plaintiff Michael Ogidi-Gbegbaje's
(“Plaintiff”) Complaint . Also before the
Court are Plaintiff Michael Ogidi-Gbegbaje's
(“Plaintiff”) Objections  to the R&R.
March 16, 2017, Plaintiff, proceeding pro se, filed
his Complaint. Plaintiff asserts a claim of racial
discrimination pursuant to Title VII, 42 U.S.C. §
2000e-2(a)(1). Plaintiff claims that Defendant discriminated
against him based on his race, African-American, and his
national origin, Nigerian, when it failed to re-hire him.
(Compl. at 1, 12-14). Plaintiff states he was hired by
Defendant on April 1, 2016. (Compl. at 14). On July 12, 2016,
Plaintiff was arrested and taken to jail for six months.
(Id.). Upon his release in late 2016, Plaintiff
reapplied for employment with Defendant but was not rehired.
Although Plaintiff states Defendant notified him that it
chose not to rehire him based on his criminal record, he
concludes in his Complaint that he believes he was
“discriminated against because of [his] race
(African-American) and national origin (Nigerian) in
violation of Title VII . . . .” (Id.).
2, 2017, Defendant filed its Motion arguing (1)
Plaintiff's discrimination claim is conclusory and
without any factual support and (2) Plaintiff has failed to
sufficiently state a claim for discrimination. (Motion at
6-7, 8-13). On July 17, 2017, Plaintiff filed his untimely
Response  (“Response”). On August 18, 2017,
the Magistrate Judge issued her Final R&R recommending
granting Defendant's Motion to Dismiss. On September 14,
2017, Plaintiff filed his Objections to the Final R&R,
generally objecting to Magistrate Judge King's findings,
arguing that his Response to the Motion was timely filed, and
claiming that Defendant discriminated against him based on
his criminal record. (Obj. at 1-2).
Motion to Dismiss
motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must “assume that
the factual allegations in the complaint are true and give
the plaintiff the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable
inferences are made in the plaintiff's favor,
“‘unwarranted deductions of fact' are not
admitted as true.” Aldana v. Del Monte Fresh
Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 408 n.10 (1996)). The Court also is not required to
accept as true conclusory allegations and legal conclusions.
See Am. Dental Ass'n v. Cigna Corp., 605 F.3d
1283, 1290 (11th Cir. 2010) (construing Ashcroft v.
Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)); see also White v.
Bank of America, NA, 597 F. App'x 1015, 1018 (11th
Cir. 2014) (“[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as
facts will not prevent dismissal.”) (quoting Oxford
Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Mere “labels and conclusions”
are insufficient. Twombly, 550 U.S. at 555. “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). This requires more than
the “mere possibility of misconduct.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 679). The well-pled allegations must “nudge
their claims across the line from conceivable to
plausible.” Id. at 1289 (quoting
Twombly, 550 U.S. at 570).
filed his Complaint pro se. “A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, a pro se plaintiff must comply
with the threshold requirements of the Federal Rules of Civil
Procedure. See Beckwith v. Bellsouth Telecomms.
Inc., 146 F. App'x 368, 371 (11th Cir. 2005).
“Even though a pro se complaint should be
construed liberally, a pro se complaint still must
state a claim upon which the Court can grant relief.”
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.
Magistrate Judge's Report and Recommendation
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 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). 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). Where
no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam).
Objections, Plaintiff argues his Response was timely filed
because he mailed it to the Court on July 10, 2017. (Obj. at
1-2). Plaintiff's ...