Opinion
No. 2:19-cv-02365-JTF-cgc
11-25-2019
KAREN CHRISTIAN, Plaintiff, v. DELTA AIRLINES, HORSESHOE CASINO and CAESARS ENTERTAINMENT, Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING CASE
Before the Court is Plaintiff Karen Christian's pro se Complaint against Defendants Delta Airlines, Horseshoe Casino and Caesars Entertainment ("Defendants") filed on June 4, 2019. (ECF No. 1.) Plaintiff also filed a Motion seeking leave to proceed in forma pauperis, (ECF No. 2), which was granted on July 31, 2019. (ECF No. 7.) The Magistrate Judge, upon screening Plaintiff's Complaint, entered a Report and Recommendation suggesting dismissal of the Complaint for failure to state a claim. (ECF No. 7.) No objections were filed by Plaintiff. For the reasons below, the Court ADOPTS the Magistrate Judge's Report and Recommendation to DISMISS Plaintiff's Complaint.
FACTUAL HISTORY
In the Report and Recommendation, the Magistrate Judge provides, and this Court adopts and incorporates, proposed findings of fact in this case. (ECF No. 7, 2.)
LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) "to relieve some of the burden on the federal courts by permitting the assignment of certain district court duties to magistrates." United States v. Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear and determine any pretrial matter pending before the Court, except various dispositive motions. 28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, "the magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact." Fed. R. Civ. P. 72(b)(1); see also Baker v. Peterson, 67 F. App'x 308, 310 (6th Cir. 2003). Any party who disagrees with a magistrate's proposed findings and recommendation may file written objections to the report and recommendation. Fed. R. Civ. P. 72(b)(2).
The district court reviews a magistrate judge's proposed findings and recommendation. The standard of review that is applied depends on the nature of the matter considered by the magistrate judge. See Baker v. Peterson, 67 F. App'x 308, 310 (6th Cir. 2003) (citations omitted) ("A district court normally applies a 'clearly erroneous or contrary to law' standard of review for nondispositive preliminary measures. A district court must review dispositive motions under the de novo standard."). Upon review of the evidence, the district court may accept, reject, or modify the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ., 47 F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court "may also receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions." Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). "When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b) advisory committee notes.
28 U.S.C. § 1915(e)(2) Screening
Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se plaintiff has been granted leave to proceed in forma pauperis until the complaint has been screened under 28 U.S.C. § 1915(e)(2)(B). LR 4.1(b). Specifically, courts are required to screen in forma pauperis complaints and dismiss any complaint, or portion thereof, if the allegation of poverty is untrue or if the action (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted, or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Standard of Review for Failure to State a Claim
In assessing whether Plaintiff's Complaint states a claim upon which relief may be granted, the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court 'consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (alteration in original) (quoting Iqbal, 556 U.S. at 681). Additionally, although not free from basic pleading requirements, pro se pleadings are "held 'to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed." Curtin, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Even so, pro so litigants must adhere to the Federal Rules of Civil Procedure, and the Court cannot create a claim that has not been spelled out in a pleading. Falkner v. United States, No. 11-2982-STA-cgc, 2012 U.S. Dist. LEXIS 93372, at *16 (W.D. Tenn. July 6, 2012).
ANALYSIS
The Court agrees with and adopts the Magistrate Judge's recommendation that Plaintiff's Complaint be dismissed for failure to state a claim upon which relief can be granted. Plaintiff's Complaint fails to state a claim upon which relief can be granted because Plaintiff did not file the Complaint within ninety (90) days of receiving her Right to Sue Letter from the EEOC. Title VII requires a Plaintiff to file a claim within ninety (90) days of receiving a Right to Sue Letter. 42 U.S.C. § 2000e-5(f)(1). "[T]he ninety-day filing requirement . . . is not a jurisdictional requirement but, instead, is a timing requirement similar to a statute of limitations, subject to waiver, estoppel and equitable tolling." Truitt v. County of Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998) (emphasis omitted). Here, Plaintiff asserts in her Complaint that she received her Right to Sue Letter from the EEOC in January of 2013. (ECF No. 1, 5.) Plaintiff also asserts she originally filed a charge with the EEOC in October of 2013, (ECF No. 1, 5), and her best recollection is that the alleged discriminatory acts occurred in May of 2018. (ECF No. 1, 3.) Plaintiff's timeline is inconsistent, and it does not appear to the Court that, relying upon the stated dates, Plaintiff filed this lawsuit within the requisite ninety-day period of receiving a Right to Sue letter. Accordingly, dismissal for failure to state a claim upon which relief can be granted is appropriate.
The Court also agrees with the Magistrate Judge's recommendation that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that Plaintiff may not appeal the above determination in forma pauperis because such an appeal would not be taken in good faith. (ECF 7.) Plaintiff did not object to the Report and Recommendation. Under 28 U.S.C. § 1915(a)(3), "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). "The good faith standard is an objective one" and considers whether the litigant seeks appellate review of any nonfrivolous issue. Beard v. Memphis, TN Crim. & Judicial Sys., No. 17-2184-STA-cgc, 2017 U.S. Dist. LEXIS 100175, at *8 (W.D. Tenn. June 16, 2017). Additionally, courts hold that it would be inconsistent for a district court to determine that a complaint should be dismissed prior to service on the defendant, while simultaneously finding that the claim has sufficient merit to support an appeal in forma pauperis. Id. at *9. The same considerations that favor dismissal of Plaintiff's Complaint also compel the conclusion that an appeal here would be frivolous and, thus, not taken in good faith. See id. at *8. Accordingly, this Court certifies, pursuant to 28 U.S.C. § 1915(a), that an in forma pauperis appeal in this case by Plaintiff would not be taken in good faith, and thus, may not be taken.
CONCLUSION
Upon a de novo review, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation to DISMISS Plaintiff's claim with prejudice for failure to comply with the ninety-day requirement as codified in 42 U.S.C. § 2000e-5(f)(1). The Court CERTIFIES that Plaintiff may not appeal the determination herein in forma pauperis.
IT IS SO ORDERED this 25th day of November 2019.
s/John T . Fowlkes , Jr .
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE