Brown v. Potter

Filing 21

ORDERED as follows: (1) Mr. Brown's 20 objection is OVERRULED; (2) the 19 Recommendation of the Magistrate Judge is ADOPTED; (3) defendants' 12 motion to dismiss is GRANTED. An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 12/2/09. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION P E R C Y J. BROWN, P la in tif f , v. J O H N E. POTTER, Postmaster General, e t al., D e f e n d a n ts. ) ) ) ) ) C A S E NO. 2:09-CV-613-WKW[WO] ) ) ) ) ) ORDER O n November 18, 2009, the Magistrate Judge filed a Recommendation in this case. (Doc. # 19.) Plaintiff Percy J. Brown ("Brown") filed an objection on November 24, 2009. (Doc. # 20.) Upon an independent and de novo review of those portions of the

R e c o m m e n d a tio n to which objection is made, 28 U.S.C. § 636(b)(1), the court finds that the o b je c tio n is due to be overruled. Mr. Brown takes issue with the Magistrate Judge's alternative finding that "his c h a lle n g e to the amount of damages awarded to him after the EEOC entered a finding in his f a v o r fails to state a claim upon which relief can be granted." (Doc. # 19, at 5.) Mr. Brown a s s e rts that he is not contesting the "amount of damages awarded by the EEOC," but is a s s e rtin g that the EEOC's "order was never complied with." (Doc. # 20, at 3.) It is true that " [ o ]n conclusion of the administrative process, a federal employee who prevails may sue in a federal district court to enforce an administrative decision with which an agency has failed to comply." Ellis v. England, 432 F.3d 1321, 1324 (11th Cir. 2005). But, even under a

generous reading of the complaint,1 Mr. Brown's complaint does not allege that the United S ta te s Postal Service Agency failed to comply with the EEOC's decision. Rather, the c o m p la in t is specifically brought under the substantive provisions of Title VII and requests a jury trial and relief for "employment discrimination." (Compl. 1); see Ellis, 432 F.3d a t 1324 (explaining that "[a]lternatively, a federal employee unhappy with the administrative d e c is io n may bring a claim in the federal district court and obtain the same de novo review th a t a private sector employee receives in a Title VII action pursuant to 42 U.S.C. § 2000e1 6 (c )." ). Mr. Brown cannot amend his complaint in an objection to a Magistrate Judge's re c o m m e n d a tio n . Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2 0 0 4 ) ("A plaintiff may not amend her complaint through argument in a brief opposing s u m m a ry judgment."). To the extent that Mr. Brown reasserts his argument that the u n d is p u te d untimeliness of his complaint should be excused based upon an equitable e x c e p tio n , the Recommendation adequately addresses and properly rejects that argument. B a se d upon the foregoing, it is ORDERED as follows: 1. 2. 3. M r. Brown's objection (Doc. # 20) is OVERRULED. T h e Recommendation of the Magistrate Judge (Doc. # 19) is ADOPTED. D e f e n d a n ts' motion to dismiss (Doc. # 12), filed pursuant to Rule 12(b)(6) of

th e Federal Rules of Civil Procedure, is GRANTED.

See GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (While courts "should show a leniency" to the pleadings of pro se litigants, "this leniency 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. (internal citation omitted)).

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An appropriate judgment will be entered. D O N E this 2nd day of December, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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