United States District Court, S.D. Georgia, Augusta Division
ROGER J. BELL, Plaintiff,
JACK LNU and CHRIS LNU, Defendants.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
is proceeding pro se and in forma pauperis
(“IFP”) in the above-captioned case. Because he
is proceeding IFP, Plaintiff's complaint must be screened
to protect potential defendants. Phillips v.
Mashburn, 746 F.2d 782, 785 (11th Cir. 1984). Upon
conducting an initial screening of Plaintiff's complaint,
the Court, on April 20, 2018, ordered Plaintiff to amend his
complaint on a standard employment discrimination form
provided to him within fourteen days to correct certain
pleading deficiencies. (See doc. no. 4.) When
Plaintiff failed to respond, the Court recommended dismissal
of the case. (Doc. no. 5.) Prompted to respond by the
recommendation for dismissal, Plaintiff filed an objection,
and the Court provided Plaintiff one final opportunity to
amend his complaint as instructed. (Doc. nos. 7, 8.) Those
instructions included the admonition that “the amended
complaint will supersede and replace in its entirety the
previous pleading filed by Plaintiff.” (Doc. no. 4, p.
3 (citing Hoefling v. City of Miami, 811 F.3d 1271,
1277 (11th Cir. 2016); Lowery v. Ala. Power Co., 483
F.3d 1184, 1219 (11th Cir. 2007) (“an amended complaint
supersedes the initial complaint and becomes the operative
pleading in the case”)). The amended complaint is now
before the Court for screening.
SCREENING THE AMENDED COMPLAINT
names the following Defendants: (1) Jack LNU, a supervisor
with Reeves Construction, and (2) Chris LNU, a foreman with
Reeves Construction. (Doc. no. 9, pp. 1, 2.) Although the
Court must take all of Plaintiff's factual allegations as
true for purposes of the present screening, the portion of
the complaint form reserved for explaining the facts of
Plaintiff's case is blank. (Id. at 5-6.)
Plaintiff has checked boxes indicating he believes he has
been discriminated against based on his race and age, and he
believes the discriminatory conduct resulted in retaliatory
termination of his employment. (Id. at 3-4.)
Plaintiff did not list his age in the space provided when a
claim of age discrimination is asserted. (Id. at 4.)
There is no right to sue letter attached.
Legal Standard for Screening
amended complaint or any portion thereof may be dismissed if
it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, or if it seeks monetary relief
from a defendant who is immune to such relief. See
28 U.S.C. § 1915(e)(2)(B). A claim is frivolous if it
“lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). “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
Fed.Appx. 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the amended
complaint must “state a claim to relief that is
plausible on its face.” 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That
is, “[f]actual allegations must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed
factual allegations, “it demands more than an
accusation.” Iqbal, 556 U.S. at 678. The
amended complaint is insufficient if it “offers
‘labels and conclusions' or ‘a formulaic
recitation of the elements of a cause of action, '”
or if it “tenders ‘naked assertions' devoid
of ‘further factual enhancement.'”
Id. (quoting Twombly, 550 U.S. at 555,
557). In short, the amended complaint must provide a
“‘plain statement' possess[ing] enough heft
to ‘sho[w] that the pleader is entitled to
relief.'” Twombly, 550 U.S. at 557
(quoting Fed.R.Civ.P. 8(a)(2)).
the Court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, this liberal
construction does not mean that the Court has a duty to
re-write the complaint. Snow v. DirecTV, Inc., 450
F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff's Amended Complaint Should Be Dismissed for
Failure to Follow a Court Order.
district court has authority to manage its docket to
expeditiously resolve cases, and this authority includes the
power to dismiss a case for failure to prosecute or failure
to comply with a court order. Equity Lifestyle Props.,
Inc. v. Florida Mowing & Landscape Serv., Inc., 556
F.3d 1232, 1240 (11th Cir. 2009) (citing Fed.R.Civ.P. 41(b));
see also Eades v. Ala. Dep't of Human Res., 298
Fed.Appx. 862, 863 (11th Cir. 2008) (per curiam).
Moreover, dismissal without prejudice is generally
appropriate pursuant to Rule 41(b) where a plaintiff has
failed to comply with a court order, “especially where
the litigant has been forewarned.” Owens v.
Pinellas Cnty. Sheriff's Dep't, 331 Fed.Appx.
654, 655 (11th Cir. 2009) (per curiam) (citing
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989)); see also Loc. R. 41.1(b) (Court may dismiss
an action sua sponte for “willful disobedience
or neglect of any order of the Court”).
the Court provided Plaintiff explicit instructions on the
method for amending his complaint if he wanted to pursue this
case, including an explanation that individuals are not
proper Defendants in cases alleging discrimination under
Title VII or the Age Discrimination in Employment Act
(“ADEA”). (Doc. no. 4, p. 2; doc. no. 8, p. 2
n.1). Plaintiff again listed only individuals as Defendants,
not his employer. The Court also advised Plaintiff to
“carefully review the instructions (on the complaint
form) and provide the particular information requested,
” including attaching his right to sue letter. (Doc.
no. 8, p. 2.) Plaintiff did not list his age, (doc. no. 9, p.
4), did not provide any facts about his case, (id.
at 4-5), and did not attach his right to sue letter or EEOC
Plaintiff is proceeding IFP, the Court finds that the
imposition of monetary sanctions is not a feasible sanction
for repeatedly disobeying the Court's instructions about
amending. Thus, Plaintiff's case should be dismissed for