Opinion
Civil Action 20-00460-BAJ-RLB
01-26-2022
ALBERTHA DIONNE BADON v. THOMAS VILSACK, Secretary, U.S. Department of Agriculture
RULING AND ORDER
JUDGE BRIAN A. JACKSON UNITED STATES DISTRICT COURT
Before the Court is Defendants' Motion To Dismiss Pursuant To Federal Rules Of Civil Procedure 12(b)(1) and 12(b)(6), seeking to dismiss Plaintiffs claims against the United States and Thomas Vilsack, Secretary of the U.S. Department of Agriculture. (Doc. 42). The Motion is opposed. (Doc. 44). Defendants filed a Reply Brief. (Doc. 45).
On July 28, 2021, the Court granted Defendants' Motion to Substitute Thomas Vilsack, current Secretary of the United States Department of Agriculture, in place of Sonny Perdue. (Doc. 58).
The Magistrate Judge has issued a Report and Recommendation, recommending that the Court grant Defendants' Motion and dismiss the above-captioned matter. (Doc. 61). Plaintiff objects to the Report and Recommendation. (Doc. 62). Defendants filed a Response to Plaintiffs Objection. (Doc. 65). After carefully considering Plaintiffs Objections, the Court adopts the Magistrate Judge's Report and grants Defendants' Motion to Dismiss.
Plaintiff asserts three objections: (1) the Magistrate Judge incorrectly found that Plaintiff could adequately represent herself; (2) the Court should permit Plaintiff to amend her Complaint; and (3) after agreeing that her "Whistleblower activity claim is outside the jurisdiction of the Court," Plaintiff argues that the Court has jurisdiction to consider her remaining claims pursuant to 28 U.S.C. §§ 1331, 1367(a), and 1391(b). (Doc. 62, p. 2-6).
First, the issue of appointment of counsel is not the subject of the instant Motion or Report and Recommendation. (See Doc. 42; Doc. 61). After receipt of the Report, Federal Rule of Civil Procedure 72(b)(2) provides Plaintiff the opportunity to "serve and file specific written objections to the proposed findings and recommendations" contained in the Report. Rule 72(b)(2) does not provide Plaintiff the opportunity to raise extraneous issues in the form of an Objection. Because Plaintiffs purported Objection contests an issue outside of the scope of the instant Report, the Court will not consider it at this time. See Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.") (emphasis added). Moreover, the Court previously addressed the issue of appointment of counsel. (See Doc. 46).
Second, the Court will not permit Plaintiff to amend her Complaint. Since the issuance of the instant Report, the Magistrate Judge denied Plaintiffs additional Motion to Amend her Complaint, noting the following:
[T]he Court gave consideration to plaintiffs status as a pro se litigant and construed her claims broadly. The Court considered any legal basis that could apply to plaintiffs employment. The Court also considered all of the materials submitted with the Complaint and Amended Complaint
- over 100 pages.
More importantly, plaintiff fails [to] specify the amendments she seeks to make or attach any proposed amended complaint to the Motion . . . Without a draft complaint to evaluate how plaintiff believes she can sufficiently plead a valid cause of action in this court, the Court finds that Plaintiffs motion should be denied.(Doc. 64, p. 3-4; see also Doc. 63). Additionally, Plaintiff has already filed an Amended Complaint. (Doc. 37).
Finally, Plaintiffs reference to statutes regarding federal question jurisdiction, supplemental jurisdiction, and venue, generally, does not compel a different result. (Doc. 62, p. 4-6 (citing 28 U.S.C. §§ 1331, 1367(a), and 1391(b)). As set forth in the Magistrate Judge's Report, Plaintiff must comply with the statutory scheme set forth in the Civil Service Reform Act, and general jurisdictional statutes do not persuade otherwise. (Doc. 61, Doc. 12-13).
Having carefully considered the underlying Complaint, the instant Motion, Plaintiffs Objections, and related filings, the Court APPROVES the Magistrate Judge's Report and Recommendation, and ADOPTS it as the Court's opinion herein.
Accordingly, IT IS ORDERED that Defendants' Motion To Dismiss Pursuant To Federal Rules Of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 42) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs claims against Defendants Thomas Vilsack, Secretary of the U.S. Department of Agriculture, and the United States of America, are hereby DISMISSED.
A final judgment shall issue.