Opinion
5:23-CV-00265-FL
01-31-2024
WAILEUNG HENRY LAM, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF ADULT CORRECTION, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This pro se case is before the court on the amended application [D.E. 11] by plaintiff Waileung Henry Lam (“plaintiff”) to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1). The court finds that plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, for the reasons set forth below, the undersigned RECOMMENDS that plaintiff's complaint be DISMISSED.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's application and finds that he has adequately demonstrated his inability to prepay the required court costs. His amended application to proceed in forma pauperis [D.E. 11] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PROCEDURAL BACKGROUND
On May 19, 2024, plaintiff filed a proposed complaint [D.E. 1] and an application to proceed in forma pauperis [D.E. 2]. On June 5, 2023, the court issued an order [D.E. 5] noting the following deficiencies in plaintiff's initial case filing: (i) the application to proceed in forma pauperis is ambiguous, preventing the court from making an adequately informed assessment of plaintiff's financial situation; and (ii) plaintiff's complaint, as then drafted, presents issues potentially bearing on whether the allegations are sufficient to survive frivolity review. Plaintiff was directed to correct those deficiencies, no later than June 19, 2023, by filing (i) an amended in forma pauperis application particularized as described in the deficiency order, and (ii) a new proposed complaint with amendments. [D.E. 5] at 3. Plaintiff was warned that “[f]ailure by plaintiff to file the relevant amended in forma pauperis documentation and proposed complaint [with amendments] by June 19, 2023, may result in a recommendation by the undersigned to the presiding district judge that this case be dismissed in whole or in part for failure to prosecute.” [D.E. 5] at 3-4.
On June 22, 2023, plaintiff filed a motion seeking an extension of the June 19, 2023 deadline to respond to the court's order. [D.E. 6]. Plaintiff did not request that the deadline be extended by any specific amount of time. In support of the request, plaintiff provided that he had been “under work compensation since June 1, 2023” due to an “injury from work.” [D.E. 6] at 1. On June 23, 2023, this court granted the motion for extension and gave plaintiff until no later than July 14, 2023, to (i) amend his in forma pauperis application, and (ii) file a new proposed complaint with amendments. [D.E. 7] at 1-2. Plaintiff was again warned that “[f]ailure . . . to file the relevant amended in forma pauperis documentation and proposed complaint by July 14, 2023, may result in a recommendation by the undersigned to the presiding district judge that this case be dismissed in whole or in part for failure to prosecute.” Id. at 2.
Plaintiff failed to file a corrected in forma pauperis application and an amended proposed complaint before the July 14, 2023 deadline. [D.E. 8]. The undersigned subsequently filed a memorandum and recommendation recommending this case be dismissed without prejudice for failure to prosecute. Id. Plaintiff filed an objection to the memorandum and recommendation, citing his work conditions and recovery from an injury as the cause for his missing the previous deadline. [D.E. 9]. In response, the court allowed plaintiff an extension until October 9, 2023, to file a corrected in forma pauperis application and an amended proposed complaint. [D.E. 10]. Plaintiff filed a corrected in forma pauperis application and an amended complaint on October 10, 2023. [D.E. 11].
II. PLAINTIFF'S ALLEGATIONS AND CLAIMS
The undersigned liberally construes plaintiff's second complaint form [D.E. 11] as amending and supplementing plaintiff's original complaint [D.E. 1] rather than as a separate and individual complaint. Plaintiff's contentions and allegations, even as amended, remain difficult to follow because of improper grammar and confusing word choices, as well as unclear sentence structure. See, e.g., Am. Compl. [D.E. 11-1] at 4 (“After speaking out this misconduct to the H.R. Personal who was in charge that promotion process, all I received was the ‘merit-based' definition and work harassment discipline action from the same personal without the probable cause, I was punished and reassigned to work in prison not only located in another geographic region, but also far away from the reasonable commute distance.”).
Read in the light most favorable to plaintiff, he appears to allege a retaliation claim against the North Carolina Department of Adult Correction (“NCDAC”), as well as a discrimination claim based on his race, sex, national origin, age, and veteran status. Specifically, plaintiff appears to allege that in retaliation for complaining to his human resources department about its hiring of individuals with criminal histories, the NCDAC transferred plaintiff to a new employment location that was beyond a reasonable commuting distance for him, took disciplinary action against him, and failed to promote or hire plaintiff to various positions for which he had applied. Am. Compl. [D.E. 11-1] at 4-6.
Plaintiff alleges that the court has jurisdiction pursuant to 42 U.S.C § 2000e and 29 U.S.C. § 621. Compl. [D.E. 1-2] at 1. The relief sought by plaintiff is recovery of back pay and reinstatement to his former job. Am. Compl. [D.E. 11-1] at 5.
III. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see also Denton v. Hernandez, 504 U.S. 25, 27 (1992). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Criminal Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1) and (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654(4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3).
One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978). There are also statutes conferring jurisdiction for particular types of cases.
IV. ANALYSIS
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B). For the reasons discussed below, it is recommended that plaintiff's complaint be dismissed.
A. LACK OF SUBJECT MATTER JURISDICTION
1. Veteran Discrimination Under Uniformed Services Employment and Reemployment Rights Act of 1994
In plaintiff's complaint he makes vague references to discrimination based on his veteran status. Compl. [D.E. 1] at 3 (citing “veteran status” as an additional reason for discrimination in his claims). Reading his complaint in the most favorable light to the plaintiff, the undersigned construes this as a veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).
Plaintiff's claim could arguably also be construed as a claim under the Veterans Preference Act of 1944. However, the Veterans Preference Act “applies only to veterans seeking federal employment.” Lucenio v. Houston Indep. Sch. Dist., No. 4:21-CV-00650, 2022 WL 658838, at *4 (S.D. Tex. Feb. 16, 2022), report and recommendation adopted, No. 4:21-CV-00650, 2022 WL 658719 (S.D. Tex. Mar. 4, 2022). Plaintiff lists the institutions in Raleigh to which he applied: “NCDAC HQ, Correctional Enterprise and Central Region office, Central Prison, NCCIW and Wake C.C.” [D.E. 11-1] at 6. Plaintiff does not indicate that any of these are federal prisons or otherwise federal employers. Additionally, 5 U.S.C. § 2108 of the Veterans' Preference Act “defines who is a veteran and who may be considered preference eligible, but it does not prohibit any specific conduct.” Lucenio, 2022 WL 658838, at *4. Accordingly, plaintiff has failed to state a claim under the Veterans Preference Act.
Under USERRA, “[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.” 38 USCA § 4323(b)(2). However, “USERRA suits must be brought in state (rather than federal) court.” Torres v. Texas Dep't of Pub. Safety, 597 U.S. 580, 595, 142 S.Ct. 2455, 2466, 213 L.Ed.2d 808 (2022) (citing § 4323(b)(2)). Here, NCDAC is a state employer, see Mason v. N. Carolina Dep't of Corr., No. 5:12-CV-382-BO, 2014 WL 1411056, at *1 (E.D. N.C. Apr. 11, 2014) (“The North Carolina Department of Corrections is an agency or arm of the State of North Carolina.”), and accordingly, this court lacks subject matter jurisdiction over any such claim. Townsend v. Univ. of Alaska, 543 F.3d 478, 485 (9th Cir. 2008) (affirming dismissal of plaintiff's USERRA suit against a state for lack of subject matter jurisdiction).
Additionally, plaintiff does not allege diversity jurisdiction in his complaint, (see Civ. Cover Sheet § II.3 (“Federal Question” box marked as basis of jurisdiction); § III (“Plaintiff” marked as “Citizen of This State” and “Defendant” marked as “Incorporated or Principal Place of Business in This State)), so this court does not have jurisdiction over any state law claims.
Accordingly, any USERRA claim and any potential state law claims should be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
Plaintiff mentions, but does not otherwise allege facts supporting, “blacklist[ing]” (see Am. Compl. [D.E. 11-1] at 6 (“None of [the positions for which plaintiff applied] provided any feedback on any job offering . . . This is another term of retaliation that the agency I work for demonstrated the blacklist procedure against my application . . . ”)), as well as state law statutes N.C. G.S. 17C-2 and N.C. G.S § 150B-2. However, even if plaintiff had stated a supplemental claim for blacklisting or state law statutes under North Carolina law, the undersigned would have recommended that this court decline to exercise jurisdiction over such claims as the undersigned recommends that all federal claims be dismissed as discussed below. “[A] supplemental claim cannot survive in this court inasmuch as there are no viable federal claims asserted.” Iannucci v. Mission Hosp., No. CIV.1:08CV471, 2008 WL 5220641, at *4 (W.D. N.C. Dec. 11, 2008); see also Austin v. City of Montgomery, 196 Fed.Appx. 747, 754 (11th Cir. 2006) (“When a court declines to exercise supplemental jurisdiction under § 1367(c)(3) because only state claims remain, the proper action is a dismissal without prejudice so that the complaining party may pursue the claim in state court.”).
B. FAILURE TO STATE A CLAIM UNDER TITLE VII AND ADEA
Plaintiff also alleges discrimination based on his race, sex, national origin and age as well as disciplinary retaliation by NCDAC. In liberally reading plaintiff's filings, the court construes the complaint to assert a claim under Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).
For the reasons stated below, it is recommended that all remaining claims be dismissed for failing to state a claim upon which relief can be granted.
1. Retaliation and Disparate Discipline under Title VII
“Absent direct evidence, the elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Campbell v. Enter. Holdings, Inc., No. 5:11-CV-424-FL, 2011 WL 6780791, at *3 (E.D. N.C. Dec. 27, 2011) (citing Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir.2010)).
While a plaintiff need not plead facts that constitute a prima facie case of discrimination in order to survive a motion to dismiss, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510, 122 S.Ct. 992, 997, 152 L.Ed.2d 1 (2002), the Fourth Circuit has not “interpreted Swierkiewicz as removing the burden of a plaintiff to allege facts sufficient to state all the elements of h[is] claim.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (“While a plaintiff is not charged with pleading facts sufficient to prove [his] case, as an evidentiary matter, in [his] complaint, a plaintiff is required to allege facts that support a claim for relief.”).
a. Retaliation under Title VII
With respect to plaintiff's claim of Title VII retaliation, “[t]he elements of a prima facie claim for retaliation under Title VII are: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Campbell, No. 5:11-CV-424-FL, 2011 WL 6780791, at *3 (citing Coleman, 626 F.3d at 190.
The adverse employment action about which plaintiff appears to primarily complain is that he was “reassigned to work in prison [sic] not only located in another geographic region, but also away from the reasonable commute distance.” Am. Compl. [D.E. 11] at 4.
“Title VII liability can arise from a ‘tangible employment action,' which the Court defined to include not only ‘hiring, firing, failing to promote, ... [and] significant change in benefits,' but also ‘reassignment with significantly different responsibilities.'” Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999) (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998)). “Title VII awards damages ‘only against employers who are proven to have taken adverse employment action' for a discriminatory reason.” Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 523-24, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Additionally, “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339, 133 S.Ct. 2517, 2521, 186 L.Ed.2d 503 (2013).
“[R]eassignment can only form the basis of a valid Title VII claim if the plaintiff can show that the reassignment had some significant detrimental effect.” Boone, 178 F.3d 253, 256. Plaintiff only alleges that his geographic reassignment created a longer commuting distance for him, but not that it represented any change in pay, employment responsibilities, or working conditions at his new place of employment. “Absent any decrease in compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a new position commensurate with one's salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position.” Boone, 178 F.3d 253, 256-57.
Accordingly, the undersigned finds that plaintiff has failed to state a claim for retaliation.
b. Disparate Discipline under Title VII
While not entirely clear, it appears that plaintiff may also be alleging that his geographic reassignment also represented a disparate disciplinary measure he faced as a result of the report he made to his human resources department discussed above. Am. Compl. [D.E. 11] at 4 (“After speaking out [sic] this misconduct to the [human resources personnel] who was in charge [of] that promotion process, all I received was the ‘merit-based' definition and work harassment discipline action from the same [personnel]. Without the properable [sic] cause, I was punished and reassigned to work in prison not only located in another geographic region, but also away from the reasonable commute distance.”); see also [D.E. 9] at 4 (appearing to allege that plaintiff should have received a written warning as a result of the investigation against him, rather than a geographic reassignment).
A prima facie case under Title VII of disparate discipline consists of a showing:
(1) that [plaintiff] is a member of the class protected by Title VII, (2) that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class, and (3) that the disciplinary measures enforced against him were more severe than those enforced against those other employees.Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).
While plaintiff elsewhere in his filings alleges that according to internal policy, his first investigation should have been punished with a written warning, rather than geographic reassignment, he does not provide any facts surrounding his disciplinary incident let alone facts from which to infer that members outside the protected class were treated less seriously. Moreover, for the same reasons discussed above that a geographic reassignment absent a “decrease in compensation, job title, level of responsibility, or opportunity for promotion”, Boone, 178 F.3d 253, 256-57, is not an adverse employment action, plaintiff has failed to allege that such a reassignment represented a more severe disciplinary measure. Accordingly, the undersigned finds that plaintiff has failed to state a claim for disparate discipline.
2. Failure to Promote or Hire under Title VII and ADEA
Plaintiff also alleges failure to hire or promote under Title VII and the ADEA. His claims fail for similar reasons to those listed above.
“A plaintiff establishes a prima facie case of discrimination in hiring [under Title VII] when he demonstrates that (i) he belongs to a protected class, (ii) he applied and was qualified for a job for which the employer was seeking applicants, (iii) despite his qualifications, he was rejected, and (iv) after his rejection, the position remained open and the employer continued to seek applicants from persons of his qualifications.” E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 851 (4th Cir. 2001). “To establish a failure to hire based on age, [p]laintiff must show (1) []he is a member of a protected class (i.e., at least 40 years old); (2) []he applied for the position in question; (3) []he was qualified for the position; and (4) []he was not selected for the position under circumstances that give rise to an inference of discrimination.” Gray v. Brent, No. 7:13-CV-198-BR, 2014 WL 1327011, at *7 (E.D. N.C. Apr. 2, 2014) (citations omitted)).
In order to establish a case of discriminatory refusal to promote under Title VII the plaintiff must prove, “(1) plaintiff is a member of a protected group; (2) plaintiff applied for the position in question; (3) plaintiff was qualified for the position; and (4) plaintiff was rejected for the position under circumstances giving rise to an inference of unlawful discrimination.” McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir.1991). “The elements of a prima facie case under Title VII [for failure to promote]. . . and the ADEA are the same.” Evans v. TWC Admin. LLC, No. 5:15-CV-675-FL, 2017 WL 5013570, at *3 (E.D. N.C. Nov. 2, 2017) (citing Williams v. Giant Food Inc., 370 F.3d 423, 430 n. 5 (4th Cir. 2004)).
In the present case, plaintiff states that he applied to “approximately 100-150 promotable positions and received several interview opportunities.” Am. Compl. [D.E. 11-1] at 6. However, plaintiff alleges no “circumstances giving rise to an inference of unlawful discrimination.” See McNairn, 929 F.2d at 977. Plaintiff states in his complaint that “none of them provided any feedback on any job offering or reasons of disqualification but just one sentence ‘We chose another candidate to fill the position.'” Id. This alone does not create an inference of discrimination and plaintiff does not allege that “after his rejection, the position remained open and the employer continued to seek applicants from persons of his qualifications.” See Sears Roebuck & Co., 243 F.3d at 851.
Specifically, with respect to his ADEA claim, plaintiff does allege that he is over 40 years old, as required by the ADEA. See Johnson v. Rite Aid Corp., No. CIV. WDQ-12-0413, 2013 WL 657637, at *2 (D. Md. Feb. 21, 2013) (“To succeed on an ADEA claim, the plaintiff must be at least 40 years old”). However, his complaint does not contain any facts that indicate that the adverse outcomes plaintiff experienced occurred because of his age. Furthermore, plaintiff fails to mention that any of the jobs he was applying for were filled by younger applicants with similar qualifications to his own. Accordingly, these claims should be dismissed for failure to state a claim.
In sum, while the complaint references race discrimination, age discrimination, sex discrimination, these broad claims represent the types of “labels and conclusions,” “formulaic recitation of the elements of a cause of action,” and “naked assertion[s]” devoid of “further factual enhancement” that are insufficient to state a claim. See Iqbal, 556 U.S. at 678. Accordingly, these claims should be dismissed for failure to state a claim.
3. Statutes without a private right of action
Plaintiff cites to multiple statutes for which there is no private right of action. The statues cited include 42 U.S.C. § 2000e (providing definitions under 42 U.S. Code Subchapter VI covering the Equal Employment Opportunities provisions) and 29 U.S.C. § 621 (providing congressional purpose statement for 29 U.S. Code Chapter 14 covering Age Discrimination in Employment).
Accordingly, it is recommended that any claim plaintiff makes, or intended to make, under one of these statutory sections be dismissed.
V. CONCLUSION
For the reasons set forth above, it is RECOMMENDED plaintiff's USERRA and any potential state law claims should be DISMISSED WITHOUT PREJUDICE and all other claims should be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until February 15, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).