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Lovewine v. Baca Ready Mix, LLC

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

January 25, 2019

MARYLISA LOVEWINE, Plaintiff,
v.
BACA READY MIX, LLC, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE

         On November 5, 2018, this Court entered an order conditionally granting plaintiff leave to proceed in forma pauperis (“IFP”), subject to receipt of additional information, and directing her to amend her complaint within 21 days from the date of the order or face a recommendation of dismissal. See doc. 3. Lovewine, however, failed to timely file an Amended Complaint or provide the additional information required to approve IFP status. As a result, this Court recommended dismissal for failure to comply with a Court order. Doc. 4.

         Plaintiff requested an extension of time to object to the Report and Recommendation, doc. 5, which was granted, doc. 6. On January 23, 2019, Lovewine finally filed her amended complaint and a motion for leave to proceed IFP. Doc. 7, Doc. 8. As a result, the Court VACATES its prior Report and Recommendation. Doc. 4. However, because Lovewine still fails to comply with this Court's prior order regarding her IFP status, and because her Amended Complaint, as filed, does not state a claim for relief, her complaint should be DISMISSED.

         As an initial matter, plaintiff was directed to supplement her application for IFP status. Doc. 3. Specifically, she was instructed to inform the Court

(1) What she spends each month for basic living expenses such as food, clothing, shelter, and utilities, and the dollar value of any public or private assistance he may receive;
(2) Where she gets the money to pay for those expenses (include all “off-the-books” income, whether in cash or in-kind);
(3) Whether she owns any means of transportation and, if she does not, whether she has regular access to same, as owned by another (including a rental company);
(4) Whether she possesses a cellular telephone, TV set, and any home electronics equipment (include estimated value and related carrying expenses, such as carrier and subscription fees);
(5) Whether she has any credit or debit cards;
(6) Whether she is the account owner, or has signature power, as to any accounts with a bank or other financial institution;
(7) Whether she anticipates any (within the next year) future income;
(8) A list of any other cases showing an indigency-based, filing fee reduction or waiver granted by any other court (include the full case name, case number and the name of the court granting same).

Id. at 11. While she filed a supplemental application to proceed IFP, the only one of these questions which she answered was that she had an “automobile” - although she does not describe this vehicle or its approximate value. Doc. 8 at 2. As plaintiff was warned before, failure to comply with a Court order will result in a recommendation of dismissal. Because she has willfully failed to comply with the Court's instruction on her IFP application once again, her complaint should be DISMISSED.

         Even had Lovewine provided the requested information, however, her Complaint is untimely and should be DISMISSED.[1] To state a claim for discrimination or retaliation under Title VII, among other things, a claim must be administratively exhausted and timely filed. 42 U.S.C. §§ 2000e et seq. Lovewine's right-to-sue letter, dated April 16, 2018, informed her that she had 90 days from receipt to file suit pursuant to Title VII. Doc. 1-2. Plaintiff informed the Court that she received the letter on April 19, 2018. Doc. 7 at 2 (“I received [the letter] after I received food stamps on April 19.”). Excluding the day of the event which triggers the limitations period, Fed.R.Civ.P. 6(1)(1)(A), and counting ninety days forward from April 19, 2018, the last day on which plaintiff could timely file any claim pursuant ...


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