Opinion
C. A. 4:22-1720-JD-TER
06-03-2022
Jerry King, Plaintiff, v. Honda Trading, People Ready Temp Agency, Jessica Roark, Maureen in H.R., Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff scantily pleads: “A white female was allowed to discriminate against me and never reprimanded.” Plaintiff alleges Defendants “refused to hear my complaint and the witnesses and decided to terminate me and violated my rights.” (ECF No. 1 at 5). Plaintiff alleges under “relief,” that the Defendant terminated him “on a lie they made up.” Plaintiff alleges the discrimination was a person calling him the n-word without the person being disciplined. (ECF No. 1 at 5).
An EEOC Notice of Right to Sue was attached, dated February 25, 2022, which included notice that right to sue would be lost if a lawsuit was not filed within 90 days. (ECF No. 1-1). Plaintiff filed this action in person with the Clerk's Office on June 1, 2022. (ECF No. 1).
A plaintiff must file his complaint in federal court within ninety days “after the giving of [] notice” by the EEOC. 42 U.S.C. § 2000e-5(f)(1). Delivery is presumed three days after the date of the notice. See generally Dunbar v. Food Lion, 542 F.Supp.2d 448, 450-51 (D.S.C. 2008). The Fourth Circuit has held that a filing one day outside the 90-day statute of limitations is time barred and may be grounds for dismissal. Harvey v. New Bern Police Dep't, 813 F.2d 652, 653 (4th Cir. 1987). Pro se litigants are not exempt from the 90-day statutory requirement. See, e.g., Anderson v. Greenville Health Sys., No. 6:16-01051-MGL, 2016 WL 6405751, at *2 (D.S.C. Oct. 31, 2016).
This particular timely filing requirement has been held for several decades to be equivalent to a statute of limitations. Gerald v. Olsten, No. 4:20-CV-2555-CMC-KDW, 2021 WL 1394669, at *3 (D.S.C. Feb. 9, 2021), report and recommendation adopted, 2021 WL 960509 (D.S.C. Mar. 15, 2021)(citing Davis v. N.C. Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) and Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
Long before 2019, the requirement here had already been held as not jurisdictional and is not the same statutory requirement as discussed in Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019), which found Title VII's charge-filing instruction not jurisdictional, abrogating Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
It is clear on the face of Plaintiff's filing that this action is untimely. “A federal court may sua sponte dismiss a complaint as barred by the statute of limitations on initial review pursuant to 28 U.S.C. § 1915 (2018).” Harriot v. United States, 795 Fed.Appx. 215, 216 (4th Cir. 2020), cert. denied, No. 20-5251, 2020 WL 5883643 (U.S. Oct. 5, 2020). Dismissal is proper “when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.” Dunbar v. Biedlingmaier, 2022 WL 814293, at *4 (D. Md. Mar. 17, 2022)(internal citations and quotations omitted).
The notice here was dated 2/25/22, adding the three day receipt presumption as discussed above, the time to file began on 2/28/22. Thus, Plaintiff had until May 31, 2022 to timely file his complaint. As set forth above, Plaintiff filed this action in person on June 1, 2011. Therefore, Plaintiff's action was not timely filed and is subject to summary dismissal as it is clear from the face of Plaintiff's filing that it was not timely filed.
May 29 is 90 days; however, because the 29th was a Sunday and the 30th was a holiday(Memorial Day), the deadline falls on Tuesday May 31, 2022. See Fed. R. Civ. Proc. R. 8(a)(C).
RECOMMENDATION
It is recommended that the District Court dismiss the Complaint in this case with prejudice and without issuance and service of process.
This would constitute a final and appealable decision as amendment would be futile as Plaintiff cannot cure the defects in his Complaint by mere amendment. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018); United States ex rel. Carson v. Manor Care, Inc., 851 F.3d 293, 305 n.6 (4th Cir. 2017) (“[W]hen a complaint is incurable through amendment, dismissal is properly rendered with prejudice and without leave to amend.”)
Plaintiff's ability to file timely written objections to this Report and Recommendation constitutes his opportunity to object to a dismissal based on the statute of limitations.
Plaintiff's attention is directed to the important notice on the next page.
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 committee's 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
Post Office Box 2317
Florence, South Carolina 29503
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).