Opinion
CIVIL ACTION NO. 2:20cv406-MHT
2021-06-14
Peter James SMITH, Plaintiff, v. WALMART INC. and Walmart Store # 00938, Defendants.
Peter James Smith, Montgomery, AL, Pro Se.
Peter James Smith, Montgomery, AL, Pro Se.
JUDGMENT
Myron H. Thompson, UNITED STATES DISTRICT JUDGE
In accordance with the memorandum opinion entered today, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) The United States Magistrate Judge's recommendation (doc. no. 17) is adopted.
(2) This lawsuit is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim for which relief may be granted.
No costs are taxed.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
This case is closed.
DONE, this the 14th day of June, 2021.
Attachment
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291 : Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945) ). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b) ; Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) ; LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a) : Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986) ;
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 : The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) ; Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989) ; Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing : The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1) : A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3) : "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4) : If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6) : Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c) : If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal : A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
RECOMMENDATION OF THE MAGISTRATE JUDGE
Stephen M. Doyle, CHIEF UNITED STATES MAGISTRATE JUDGE
Pro Se Plaintiff Peter James Smith brings this action alleging gender discrimination, race discrimination, and unlawful retaliation under the Civil Rights Act of 1964. Because Smith is proceeding in forma pauperis , the undersigned Magistrate Judge screened his complaint under 28 U.S.C. § 1915(e)(2)(B). Order (Doc. 15) p. 1. The undersigned found that Smith's complaint failed to state a claim for which relief may be granted and gave him leave to amend. Id. at 5–6. Smith, in response, filed an amended complaint. Am. Compl. (Doc. 16) p. 1. Having screened Smith's amended complaint under § 1915(e)(2)(B), the undersigned now RECOMMENDS that this case be DISMISSED.
The Court has jurisdiction over this matter under 28 U.S.C. § 1331.
Order (Doc. 6) p. 1 (granting Smith's motion to proceed in forma pauperis ).
I. BACKGROUND
The following facts come from Smith's initial complaint. Smith is an "unsheltered homeless man" who shopped at the Walmart on Atlanta Highway in Montgomery, Alabama, during March 2020. Compl. (Doc. 1) p. 2. On April 2, 2020, Walmart personnel and an individual dressed as a Montgomery police officer denied Smith entry into the store. Id. Smith alleges that he was denied entry due to his "race and gender in violation of the Civil Rights Act of 1964." Id. He further avers that he was denied entry in retaliation for filing a charge with the Equal Employment Opportunity Commission against the same Walmart location and for bringing a previous lawsuit against a different Walmart location. Id. at 2–3.
As explained below, Smith's amended complaint is devoid of any factual allegations. See infra p. 1240.
Smith v. Wal-Mart , Civil Case No. 2:19-cv-89-WKW, 2020 WL 2411511 (M.D. Ala. May 15, 2019).
II. LEGAL STANDARDS
In the Eleventh Circuit, a district court may review any complaint filed in forma pauperis under 28 U.S.C. § 1915(e)(2)(B). See Martinez v. Kristi Kleaners, Inc. , 364 F.3d 1305, 1306 (11th Cir. 2004). Under that statute, a reviewing court must dismiss a complaint if it: (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)(B). A reviewing court has broad discretion to manage its in forma pauperis cases and to determine whether a complaint should be dismissed under § 1915(e)(2)(B). Phillips v. Mashburn , 746 F.2d 782, 785 (11th Cir. 1984).
To survive § 1915 review, a complaint must meet the pleading standard set forth in Federal Rule of Civil Procedure 8. See, e.g., Rodriguez v. Scott , 775 F. App'x 599, 602 (11th Cir. 2019) ; Thomas v. Pentagon Fed. Credit Union , 393 F. App'x 635, 639 (11th Cir. 2010). Under Rule 8, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled" to the relief sought. FED. R. CIV. P. 8(a)(2). This standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Mere labels and conclusions, and formulaic recitations of the elements of a cause of action are insufficient. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.
In determining whether a complaint should be dismissed under § 1915(e)(2)(B) for failing to state a claim for which relief may be granted, a reviewing court employs the same standard as dismissal under Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass , 112 F.3d 1483, 1490 (11th Cir. 1997). Under that rule, dismissal is proper if a complaint fails "to state a claim to relief that is plausible on its face." Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir. 2012) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). This standard " ‘calls for enough fact to raise a reasonable expectation that discovery will reveal evidence’ of the defendant's liability." Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). A reviewing court must accept all factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Dusek v. JPMorgan Chase & Co. , 832 F.3d 1243, 1246 (11th Cir. 2016). A court gives legal conclusions—e.g., formulaic recitations of the elements of a cause of action—no presumption of truth. Mamani v. Berzain , 654 F.3d 1148, 1153 (11th Cir. 2011).
Lastly, federal courts liberally construe pro se pleadings. Alba v. Montford , 517 F.3d 1249, 1252 (11th Cir. 2008). The general rule is that courts hold pro se pleadings to a less stringent standard than pleadings drafted by lawyers. Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This leniency, however, does not give a court "license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action." Williams, Scott & Assocs. LLC v. United States , 838 F. App'x 501 (11th Cir. 2021) (per curiam) (quoting Campbell v. Air Jam. Ltd. , 760 F.3d 1165, 1168–69 (11th Cir. 2014) ). A court should dismiss a pro se complaint without providing leave to amend "where amendment would be futile" —i.e., where the complaint as amended would still be subject to dismissal. III. DISCUSSION
Stringer v. Jackson , 392 F. App'x 759, 760 (11th Cir. 2010).
Smith v. Hildebrand , 244 F. App'x 288, 290 (11th Cir. 2007).
Smith's amended complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim for which relief may be granted. Smith attempts to bring three claims under the Civil Rights Act of 1964: (1) gender discrimination in violation of Title II, (2) race discrimination in violation of the same, and (3) unlawful retaliation in violation of Title VII. Compl. (Doc. 1) pp. 2–3. The undersigned previously reviewed Smith's complaint and found that it failed to state a plausible claim for which relief may be granted. Order (Doc. 15) pp. 4–5. Accordingly, the undersigned gave Smith leave to amend his complaint. Id. at 5–6.
In a previous order, the undersigned construed Smith's initial complaint as bringing these claims. Order (Doc. 15) pp. 3–4.
In doing so, the undersigned explained the deficiencies of Smith's pleadings. Id. at 4–5. First, the undersigned noted that Smith's gender discrimination claim failed because Title II of the Civil Rights Act does not prohibit discrimination on the basis of gender. Id. at 4. Second, the undersigned explained that Smith's race discrimination claim failed because Smith had neither identified himself as a member of a protected class nor alleged that similarly situated individuals outside his protected class were treated better than him. Id. at 5. The undersigned also noted that Smith sought compensatory and punitive damages for his race discrimination claim, but that Title II provides only injunctive relief. Id.
The undersigned previously provided this same explanation to Smith in an unrelated case. See Smith v. Subway Inc. , 2020 WL 5870421, at *2 (M.D. Ala. Aug. 28, 2020), Report & Recommendation adopted , 2020 WL 5848672 (M.D. Ala. Oct. 1, 2020).
Third and finally, the undersigned explained that Smith's unlawful retaliation claim failed because he had not alleged that Walmart subjected him to an adverse employment action—or that he was ever employed by Walmart. Id. The undersigned ultimately provided Smith leave to amend his complaint because—at least with respect to his race discrimination claim—amendment would not be entirely futile. Id. at 5–6. The undersigned cautioned Smith that his amended complaint, should he choose to file one, would take the place of his initial complaint and that the undersigned would consider only his amended complaint moving forward. Id. at 6.
In response, Smith filed an amended complaint. Am. Compl. (Doc. 16) p. 1. Smith's amended complaint reads in its entirety as follows:
The only item to be amended in this complaint against Walmart Inc. et al [.] is item #6 Relief requested. Everything else in the original complaint remains the same. The amount of damages for defamation etc. are now requested to be $300 million[,] and there is a precedent.
Id. (first emphasis added). Smith's amended complaint does nothing to cure the deficiencies identified in the undersigned's previous order. Accordingly, the undersigned finds that Smith's amended complaint—considered alone or in addition to his original complaint—fails to state a plausible claim for which relief may be granted. And because Smith has ignored the Court's attempts to explain the deficiencies of his pleadings, the undersigned further finds that Smith should not be given further leave to amend.
IV. CONCLUSION
For these reasons, the undersigned RECOMMENDS that Smith's amended complaint be DISMISSED under 28 U.S.C. § 1915(e)(2)(B) for failing to state a claim for which relief may be granted.
It is ORDERED that Smith may file any objections to this Recommendation on or before June 9, 2021 . Smith must specifically identify the factual findings and legal conclusions in the Recommendation to which each objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar Smith from a de novo determination by the District Court of legal and factual issues covered in the Recommendation, and waives his right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright , 677 F.2d 404 (5th Cir. 1982) ; 11 TH CIR. R. 3-1 ; see also Stein v. Reynolds Secs., Inc. , 667 F.2d 33 (11th Cir. 1982) ; Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir. 1981) (en banc).
DONE this 26th day of May, 2021.