Meuse v. McDonald (JOINT ASSIGN)(MAG+)

Filing 18

OPINION AND ORDER (1) ADOPTING 17 REPORT AND RECOMMENDATION of the Magistrate Judge, with the exception set forth; (2) plf's claims are dismissed without prejudice and with leave to file an amended complaint by 10/21/2016; further ORDERING that no costs are taxed; this case is not closed, and is referred back to the Magistrate Judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 9/30/16. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SHEILA MEUSE,

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Plaintiff,
v.
ROBERT A. MCDONALD,
Secretary of Veterans
Affairs,
Defendant.

CIVIL ACTION NO.
2:15cv847-MHT
(WO)

OPINION AND ORDER
Pursuant to Title VII, plaintiff filed this lawsuit
alleging discrimination on the basis of race, color,
and gender during her employment at the Department of
Veterans Affairs, including a hostile-environment claim
and a constructive-discharge claim.
now

before

the

court

on

the

This lawsuit is

recommendation

of

the

United States Magistrate Judge that plaintiff’s claims
be dismissed for failure to state a claim.

There are

no

After

objections

to

the

recommendation.

an

independent and de novo review of the record, the court
concludes

that

the

magistrate

judge’s

recommendation

should

be

adopted,

with

one

exception:

the

claims

should be dismissed without prejudice and with leave to
amend.
A pro se plaintiff “must be given at least one
chance to amend the complaint before the district court
dismisses the action with prejudice.”
928

F.2d

other

1108,

grounds

1112
by

(11th

Wagner

v.

Cir.

Bank v. Pitt,

1991),

Daewoo

overruled

Heavy

Indus.

on
Am.

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc);
see also Carter v. HSBC Mortgage Servs., Inc., 622 F.
App'x 783, 786 (11th Cir. 2015) (explaining that Bank
is controlling law for pro se plaintiffs).

There are

two caveats to this rule, in which leave to amend is
not required: “(1) where the plaintiff has indicated
that she does not wish to amend her complaint; and (2)
where

a

more

carefully

drafted

complaint

state a claim and is, therefore, futile.”
F. App'x at 786.

2

could

not

Carter, 622

Plaintiff’s

claims

must

be

dismissed

without

prejudice and with leave to amend, because plaintiff
potentially could allege a viable claim by amending her
complaint

to

cure

the

deficiencies

noted

by

the

Magistrate Judge.
***
Accordingly, it is ORDERED that:
(1) The
recommendation

United
(doc.

States
no.

17)

Magistrate
is

adopted,

Judge's
with

the

exception set forth above.
(2) Plaintiff’s

claims

are

dismissed

without

prejudice and with leave to file an amended complaint
by October 21, 2016.
It is further ORDERED that no costs are taxed.
This case is not closed, and is referred back to
the Magistrate Judge for further proceedings.
DONE, this the 30th day of September, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE