Opinion
C. A. 6:23-cv-01935-TMC-KFM
08-07-2023
Marilyn Hamilton, Plaintiff, v. Prisma Health Greenville Memorial Hospital, Prisma Health GMH Administrative Department, Prisma Health GMH Housekeeping Department, Jordan Hemmingway, Erica Wren, Steven Davidson, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a non-prisoner proceeding pro se and in forma pauperis, brings this action pursuant to the Americans with Disabilities Act 42 U.S.C. §§ 12101, et seq. (“ADA”) (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff filed this action seeking damages and injunctive relief from the defendants for violations of the ADA (doc. 1). On May 24, 2023, the undersigned issued an order informing the plaintiff that her case was not in proper form for service and instructing her to provide certain documents to bring her case into proper form (doc. 8). The order reminded the plaintiff to notify the clerk in writing of any change of address and warned that failure to keep her address updated with the Court may lead to dismissal of the case (id. at 2-3). The order also warned the plaintiff that her failure to comply with the order and submit the necessary proper form documents in the time provided in the order may result in dismissal of this action for failure to prosecute and failure to comply with an order of this court (id. at 1). The plaintiff filed proposed service documents in response to the order, but did not complete the documents in compliance with Rules 4(e) and 4(h) of the Federal Rules of Civil Procedure, so on June 14, 2023, a second order was issued giving the plaintiff an opportunity to bring her case into proper form (doc. 14). The order reminded the plaintiff a second time to notify the clerk in writing of any change of address and warned that failure to keep her address updated with the court may lead to dismissal of the case (id. at 3). The order also warned the plaintiff that her failure to comply with the order and submit the necessary proper form documents within the time permitted in the order may result in dismissal of this action for failure to prosecute and failure to comply with an order of this court (id. at 2). The plaintiff again filed proposed service documents in response to the order, but failed for a second time to comply with the order's instructions to submit proposed service documents in compliance with Rules 4(e) and 4(h) of the Federal Rules of Civil Procedure, so on July 10, 2023, a final proper form order was issued giving the plaintiff an opportunity to bring her case into proper form (doc. 22). The order reminded the plaintiff to notify the clerk in writing of any change of address and warned that failure to keep her address updated with the court may lead to dismissal of the case (id. at 2-3). The order also instructed the plaintiff that this was her final opportunity to comply with the order and that if she failed to submit the necessary proper form documents within the time permitted in the order the case would be forwarded to the assigned United States District Judge with a recommendation that it be dismissed (id. at 1). The plaintiff again responded to the order, but failed to submit proposed service documents in compliance with the order or Rules 4(e) and 4(h) of the Federal Rules of Civil Procedure.
ALLEGATIONS
In her complaint, the plaintiff alleges that the defendants failed to accommodate her disability, defamed her, and refused to hire her based on her disability (doc. 1 at 3-5). The plaintiff alleges that she was verbally offered a job, but the job offer was later denied by the defendants because of the plaintiff's disability (id. at 7).
The plaintiff alleges that the defendants falsely claimed that she could not do the job because of her disability (including that she could not hear a beeper) (id. at 4, 5, 7). The plaintiff alleges that the defendants claimed she worked there for a week and needed assistance other employees when she was only allowed to work one day and she could do the offered job (id. at 4, 5). The plaintiff also alleges that the defendants falsely claimed that she went to human resources to complain regarding discrimination (id. at 4).
The plaintiff contends that she requested an accommodation for her disability, but none was offered (id. at 4, 5, 7). She also contends that the defendants falsified records to indicate that she rejected an offered accommodation (id.). She contends the defendants defamed her by claiming she was never offered a job (id.).
For relief, the plaintiff seeks an order making Prisma Health Greenville Memorial Hospital a disability friendly employer, the return of her employment offer, and money damages (id. at 7).
APPLICABLE LAW & ANALYSIS
As noted, the plaintiff filed this action seeking damages and injunctive relief from the defendants. However, the undersigned recommends that the instant matter be dismissed because the plaintiff did not bring this case into proper form as well as because her complaint fails to state a claim for relief.
Rule 41
It is well established that a court has the authority to dismiss a case pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989). “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (emphasis added). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendants caused by the delay;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.Davis v. Williams, 588 F.2d 69, 70 (4th Cir.1978).
Here, the factors weigh in favor of dismissal. With respect to factors (1) and (3), as noted, despite multiple opportunities, the plaintiff has failed to bring her case into proper form. In doing so, she has failed to comply with the court's orders of May 24, 2023, June 14, 2023, and July 10, 2023, which instructed the plaintiff to provide specific documentation to the court to bring her case into proper form (docs. 8; 14; 22). Each order warned the plaintiff of the consequences of failing to comply with the orders' instructions, including the dismissal of her case pursuant to Fed.R.Civ.P. 41(b) (docs. 8 at 1; 14 at 2; 22 at 1). Despite these warnings, the plaintiff has not provided the court with proposed service documents compliant with Rules 4(e) and 4(h) of the Federal Rules of Civil Procedure. Indeed, the plaintiff refused to comply with this court's instruction that she could not address the proposed service documents to an individual she identifies as counsel for the defendants (based upon counsel's appearance in other matters) because the defendants in question are unrepresented in this action at this time (docs. 14 at 2; 22 at 1). Accordingly, as the plaintiff has failed to comply with the court's orders and has been previously warned that such failures could result in dismissal, it appears that less drastic sanctions would not be appropriate. As such, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with orders of the court.
Failure to State a Claim
As noted above, the instant matter should be dismissed because the plaintiff has failed to comply with orders of the court to bring her case into proper form. Even aside from the foregoing, however, the plaintiff's complaint is subject to summary dismissal for failure to state a claim.
ADA Claims
The ADA prohibits employment discrimination “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A qualified individual is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). As an initial matter, the only appropriate defendant in an ADA employment action is the plaintiff's employer or prospective employer, which in this case was Prisma Health Greenville Memorial Hospital (doc. 1-1). See 42 U.S.C. § 12111(2). As such, the plaintiff's ADA claims against the remaining defendants are subject to dismissal because they were not her employer. Here, the plaintiff asserts pursuant to the ADA (1) a failure to hire claim and (2) a failure to accommodate claim. The court will address each claim in turn.
Failure to Hire Claim
To establish a prima facie case of failure to hire based upon a disability, a plaintiff must show: (1) that she was a disabled individual within the meaning of the ADA; (2) she applied for the position in question; (3) that she was qualified for the position; and (4) that her employment application was rejected under circumstances that give rise to an inference of discrimination. See Malone v. Greenville Cnty., C/A No. 6:06-cv-02631-RBH, 2008 WL 4557498, at *9 (D.S.C. Aug. 11, 2008) (citing Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 258 (4th Cir. 2006); Brown v. McLean, 159 F.3d 898, 902 (4th Cir. 1998)). First, it is unclear that the plaintiff is a disabled individual within the meaning of the ADA because her complaint does not contain allegations regarding her disability (see doc. 1). Even liberally construing the plaintiff's complaint as alleging a disability of hearing loss or the inability to hear, the plaintiff has not alleged that she is a qualified individual under the ADA because she has not alleged that she could perform the essential functions of the job in question (which her complaint neither identifies nor describes). See Tyndall v. Nat' Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (noting that in determining if a person is a qualified individual, a court must consider whether that person is able to perform the essential functions of the job in question, and if not, whether the person could do the job with reasonable accommodation) (internal citation omitted). Nevertheless, presuming, arugendo, that the plaintiff is a qualified individual under the ADA, the plaintiff's ADA failure to hire claim still falls short of the plausibility standard. Indeed, the plaintiff's allegations seem to contradict each other - alleging both that she was hired for the job and that she was not hired for the job in question (see doc. 1). Further, the plaintiff's basis for disability discrimination is a comment by an unidentified supervisor that the plaintiff could not do the job in question because she could not hear a beeper (doc. 1 at 5), but the plaintiff contends that an individual named Erica is the one who withdrew the job offer (id.). See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010) (“It is regrettable that any distasteful comments will arise in the workplace, but that cannot mean that the actual decision maker is impugned thereby. It is the decision maker's intent that remains crucial, and in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced”). Indeed, the plaintiff's concession that she has trouble hearing appears to concede that she was not able to perform the essential functions of the job in question, which required communication through a beeper. As such, the plaintiff's ADA failure to hire claim is subject to summary dismissal.
Failure to Accommodate Claim
The plaintiff's failure to accommodate claim is likewise subject to summary dismissal. To plausibly allege a prima facie case against an employer for failure to accommodate, a plaintiff must show: “‘(1) that [s]he was an individual who had a disability within the meaning of the statute; (2) that the [employer] had notice of [her] disability; (3) that with reasonable accommodation [s]he could perform the essential functions of the position . . .; and (4) that the [employer] refused to make such accommodations.'” Rhoads v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir.2001) (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999)); see also Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013). Here, the plaintiff's complaint contains only a vague and passing reference to the defendant failing to accommodate her disability (see doc. 1). However, vague and conclusory allegations - such as those proffered by the plaintiff - do not meet the plausibility standard. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (noting that “[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.”) (citing Twombly v. BellAtl. Corp., 550 U.S. 544, 556-57 (2007)). For example, although the plaintiff indicates that the defendant lied about offering her an accommodation, she has not alleged that there was an accommodation that would have allowed the plaintiff to perform the essential functions of the job in question. See Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (noting that accommodations are not reasonable if they do not enable and employee to perform the “essential functions of the job”). For example, the plaintiff indicates in passing that she has no trouble reading, but the plaintiff has not alleged that job functions requiring use of the beeper (and hearing abilities) could be accommodated by the use of written instructions instead. As such, the plaintiff's complaint fails to plausibly allege a failure to accommodate claim under the ADA.
Defamation
The plaintiff also asserts that the defendants defamed her character by saying she “visited the office” to report discrimination (because she went to administration about the discrimination) and by saying the plaintiff could not hear a beeper (id. at 4). “[T]he tort of defamation allows a plaintiff to recover for injury to [her] reputation as the result of the defendant's communication to others of a false message about the plaintiff.” Holtzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497, 501 (S.C. 1998). Defamatory communications take two forms: libel and slander. Id. “Slander is a spoken defamation while libel is a written defamation or one accomplished by actions or conduct.” Id. (internal citation omitted). To state a claim for defamation, a plaintiff must allege that (1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Erickson v. Jones St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006).
Here, the plaintiff has failed to state a claim for defamation against the defendants. The plaintiff has not identified who said the alleged defamatory statements or how the two statements referenced in her complaint were false or defamatory. Moreover, the plaintiff has not alleged that the statements were disseminated to third parties or how the unidentified publishers of the statements were at fault for the publication of the comments. Thus, the plaintiff's defamation claim is subject to summary dismissal for failure to state a claim upon which relief can be granted.
RECOMMENDATION
As noted above, the plaintiff has failed to comply with multiple court orders and the matter is subject to dismissal for failure to state a claim. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committees note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Room 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).