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, )

Download PDF
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)). 1 2 An appropriate judgment will be entered. D O N E this 2nd day of December, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?