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Bell v. Lnu

United States District Court, S.D. Georgia, Augusta Division

June 12, 2018

ROGER J. BELL, Plaintiff,
v.
JACK LNU and CHRIS LNU, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. SCREENING THE AMENDED COMPLAINT

         A. BACKGROUND

         Plaintiff 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.

         B. DISCUSSION

         1. Legal Standard for Screening

         The 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)).

         To 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 unadorned, the-defendant-unlawfully-harmed-me 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)).

         Finally, 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).

         2. Plaintiff's Amended Complaint Should Be Dismissed for Failure to Follow a Court Order.

         A 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”).

         Here, 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 charge.[1]

         Because 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 ...


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