Bagwell v. Safeway Denver Milk Plant

Filing 19

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 17 is AFFIRMED AND ADOPTED. ORDERED that Defendants Motion to Dismiss 12 is GRANTED, and the case is DISMISSED by Chief Judge Wiley Y. Daniel on 05/31/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00162-WYD-KMT
DANIEL BAGWELL,
Plaintiff,
v.
SAFEWAY DENVER MILK PLANT,
Defendant.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendant’s Motion to Dismiss filed February
14, 2011. The motion seeks to dismiss Plaintiff’s pro se claims for sex discrimination
and retaliation by Defendant, his employer. Plaintiff did not file a response to this
motion. Defendant’s motion was referred to Magistrate Judge Tafoya for a
recommendation by Order of Reference dated February 3, 2011, and Memorandum of
February 14, 2011.
Magistrate Judge Tafoya issued a Recommendation on May 12, 2011. She
found in the Recommendation that Defendant’s Motion to Dismiss should be granted
and the case should be dismissed in its entirety for Plaintiff’s failure to satisfy the
pleading requirements of Rule 8 and for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6). (Recommendation at 9-10.)

More specifically, Magistrate Judge Tafoya found that “plaintiff has failed to
allege facts sufficient to maintain a claim for sex discrimination” because he “failed to
allege any facts that he applied and was qualified for a job for which the defendant was
seeking applicants; that, despite his qualifications, he was rejected; and that, after his
rejection, the position remained open and the employer continued to seek applicants
from persons of complainant’s qualifications.” (Recommendation at 8.) She also found
that, “[e]ven considering the EEOC charges attached to Plaintiff’s Complaint, there are
absolutely no factual allegations to support an inference that Plaintiff’s termination was
in any way because of or due to his gender.” (Id. at 9.) As a result, Magistrate Judge
Tafoya concluded that “Plaintiff’s Complaint fails to assert sufficient factual allegations
to apprise or inform the defendant ‘of the actual grounds of the claim against [it].’” (Id.)
(quotation omitted). As to the retaliation claim, she found that, other than a conclusory
allegation that he was retaliated against, “Plaintiff’s Complaint is entirely devoid of
sufficient facts to state a claim for retaliation.” (Id. at 9.)
The Recommendation advised that “[a] general objection that does not put the
district court on notice of the basis for the objection will not preserve the objection for de
novo review.” (Recommendation at 10.) It further stated that “‘a party’s objections to
the magistrate judge’s report and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or for appellate review.’” Id.
(quoting United States v. One Parcel of Real Prop. Known As 2121 East 30th Street,
Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996)).

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On May 20, 2011, Plaintiff filed timely Written Objections which would generally
necessitate a de novo determination as to those specified proposed findings or
recommendations to which objection is made since the nature of the matter is
dispositive. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Under a de novo review, “a
court ‘should make an independent determination of the issues ...; [it] ‘is not to give any
special weight to the [prior] determination.’” Ocelot Oil Corp. v. Sparrow Industries, 847
F.2d 1458, 1464 (10th Cir. 1988) (quotation omitted).
In this case, however, Plaintiff did not object to any of the specified proposed
findings or recommendations. Instead, he asks for Supreme Court review of his case
on the grounds that Title VII is unconstitutional and violates his civil rights. An objection
is not, however, a proper way to raise an appeal. If Plaintiff wishes to appeal, he will
need to comply with the proper procedures for doing so under the Federal Rules of Civil
Procedure and Federal Rules of Appellate Procedure. Since Plaintiff has not posited
any specific objections or argued any grounds as to why the Recommendation should
be reversed, I find that he waived de novo review and that his objections should be
overruled.
Even under a de novo review, however, I find that Magistrate Judge Tafoya’s
Recommendation is thorough and well reasoned and should be affirmed due to
Plaintiff’s failure to comply with the pleading requirements of Rules 8 and for failure to
state a claim for relief under the standards set forth in Ashcroft v. Iqbal, ___ U.S. ___,
129 S. Ct. 1937, 1949 (2009) and Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
555 (2007). Pro se status “does not excuse the obligation of any litigant to comply with
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the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
Based upon the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
May 12, 2011 (ECF No. 17) is AFFIRMED AND ADOPTED. In accordance therewith,
it is
ORDERED that Defendant’s Motion to Dismiss (ECF No. 12) is GRANTED, and
the case is DISMISSED.
Dated: May 31, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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