Harrison v. Board of Regents of The Univeristy System of Georgia et al

Filing 46

ORDER AND OPINION adopting the 41 Magistrate's Final Report and Recommendation and granting without prejudice 35 Defendants' Motion to Dismiss. As to any claims not already dismissed with prejudice by the magistrate judge and this Court, these remaining claims (Counts 2, 3, and 7) are dismissed without prejudice. Signed by Judge Julie E. Carnes on 9/20/12. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

RICHARD V. HARRISON,
Plaintiff,
CIVIL ACTION NO.
v.

1:11-cv-1312-JEC

BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
et al.,
Defendants.
ORDER AND OPINION
The above entitled action is presently before the Court on
the Magistrate Judge’s Final Report and Recommendation (“Final
R&R”) [41] recommending granting defendants’ Motion to Dismiss
Second Amended Complaint [35].

On April 11, 2012, plaintiff

filed Objections [44] to the Final R&R [41].

The Court has

reviewed the Final R&R [41] and, for the following reasons,
finds the magistrate judge’s conclusions to be well-founded.
DISCUSSION
Plaintiff

had

previously

filed

a

105-page

Amended

Complaint, containing 344 paragraphs, arising out of numerous
interactions and disputes that he had with co-workers and

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supervisors during his almost two-year employment with Georgia
State University, and culminating in his termination.

(Am.

Comp. [4-1].) He alleged federal claims of retaliation, hostile
work environment, sex and national origin discrimination, in
violation

of

Title

VII,

as

well

Amendment claims pursuant to § 1983.
of state law claims.

as

First

and

Fourteenth

He also alleged a variety

(Id. at 1-2.)

In her initial Report and Recommendation (“R&R”) [26], the
magistrate judge addressed, among other things, defendants’
motion to dismiss on Rule 12(b)(6) grounds. Citing Twombly1 and
FED R. CIV P. 8(a)(2), defendants essentially contended that
plaintiff’s

complaint was unwieldy and impossible to defend

against, as it was little more than a long list of facts and
conclusory allegations, with a few legal labels thrown in, here
and there.

(R&R [26] at 4-7.)

The magistrate judge agreed. She noted that plaintiff’s
complaint was a classic “shotgun” pleading, with an “unfocused
laundry

list

of

allegations,”

that

are

“indefinite

and

conclusory,” and without any specificity as to “which factual

1

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65
(2007). (R&R [26] at 5.)
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allegations support each claim.”

(Id. at 7-9.)

Rather than

dismiss plaintiff’s complaint for its pleading deficiencies, the
magistrate judge permitted plaintiff to file a new amended
complaint and gave him specific directions as how the earlier
complaint should be corrected.

(Id. at 27-30.)

This Court adopted the magistrate judge’s R&R and directed
plaintiff to file a substituted amended complaint that was
compliant with the magistrate judge’s admonition and the civil
rules of procedure, and to do so by a certain deadline, else
face dismissal with prejudice of his complaint.

(Order [32] at

2-3.)
Plaintiff timely filed this new amended complaint, which he
called his Second Amended Complaint [33].

This complaint was

81 pages in length, with 295 paragraphs. While somewhat shorter
than the original complaint, this complaint suffered from the
same defects as the complaint addressed by the magistrate judge
in her initial R&R [26].

Agreeing with defendants’ objection

that plaintiff had not complied with the earlier order, the
magistrate judge noted that this latest complaint “sets forth
rambling, overly detailed accounts of alleged claims set forth
in and among Counts One through Eight.”
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(Final R&R [41] at 5.)

Not only was it still replete with the same “conclusory and
speculative assertions” as before, but plaintiff had added new
conclusory statements.

(Id. at 5-6.)

In addition, plaintiff

had thrown in a “confusing array of legal citations, regulations
from a University handbook, legal conclusions, and speculations
about

other

actions.”

individuals’

motivations

for

taking

certain

(Id. at 6.)

As a result, the magistrate judge concluded that “[g]iven
[p]laintiff’s

failure

to

follow

the

court’s

explicit

and

detailed instructions, it is apparent that [p]laintiff’s conduct
is not negligent but is a willful failure to obey a court
order.”

(Id. at 6.)

Morever, the magistrate judge indicated

her inability to “discern what [p]laintiff is claiming or which
facts allegedly support each of his claims.”

(Id. at 7.)

Accordingly, the magistrate judge recommended that plaintiff’s
complaint be dismissed with prejudice.

(Id. at 7-9.)

Plaintiff has filed Objections [44].

He insists that any

noncompliance with the magistrate judge’s directive was not
willful. The Court is skeptical. This is not plaintiff’s first
federal employment suit.

He sued his previous employer, IBM,

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in this Court, again raising national origin and sex claims.2
See Harrison v. International Business Machines (IBM), Civil
Action Nos. 1:06-cv-02549-JEC and 1:07-cv-01220-JEC.

In those

cases, the magistrate judge issued a lengthy R&R [131], adopted
by this Court, granting the defendant’s motion for summary
judgment.

That

exhaustive

R&R

gave

plaintiff

a

thorough

tutorial in Title VII law, alerted him to the type of analysis
that should be brought to bear in these kinds of cases, and
thereby instructed plaintiff on the pertinent information that
should be included, in a coherent way, in any future complaint.
Likewise, in its own order affirming the grant of summary
judgment, the Eleventh Circuit offered an even more focused and
concise explanation of the elements of these kinds of claims.
(Id. at Dkt. No. [162].)
Accordingly,

plaintiff

is

no

novice

in

the

area

of

employment law, including the analysis and pertinent facts that
attend this type of litigation.

To make amends, plaintiff has

now attached to his Objections a Third Amended Complaint [44-9]

2

Plaintiff also claimed racial discrimination in the IBM
case.
That claim was not made here, presumably because it
appears that many of the decision-makers and comparators at
Georgia State University were black, as is plaintiff.
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that

he

believes

complaint.

represents

an

improvement

over

his

last

At 46 pages and 188 paragraphs, this complaint is

shorter and more focused.

Yet, that plaintiff was able to file

a more compliant pleading suggests that his failure to do so
before was purposeful. Further, while this complaint is better,
it still suffers from some of the same defects as his earlier
complaints in terms of conclusory allegations.
For example, in his substantive counts, he continues his
practice of making conclusory statements to which the magistrate
judge previously objected, in the vein of “if he was of AfricanAmerican decent [sic]/native,” whatever was being complained of
would not have happened.

(See 3d Am. Compl. [44-9] at ¶¶ 77,

79), in which plaintiff states in his national origin claim that
had he been a native African American, which presumably means
if he were black, but born inside the United States, he would
not have been discriminated against.

In his sex discrimination

claim, he does the same thing, asserting that were he a female,
he would not have been terminated.
In

a

typical,

(Id. at ¶¶ 84-88.)

straight-forward

Title

VII

case,

such

articulation might be clear enough to pass Rule 8 muster. Here,
however,

plaintiff’s

disharmony
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extended

across

so

many

different co-workers and supervisors, protected categories, and
alleged types of discriminatory conduct that it would have been
helpful had plaintiff been a bit more specific as to which of
the 68 factual allegations pertained to which claim.

As it is,

in Counts II (national origin discrimination) and III (sex
discrimination), plaintiff refers to the entirety of factual
allegations in ¶¶ 13-68, meaning the facts in support of each
claim are still not precisely stated.

(Id. at ¶¶ 74-90.)

The Court will not, however, now dissect this latest
complaint

to

see

if

would

have

passed

muster

under

the

magistrate judge’s directive because plaintiff should have filed
it when he was directed to file a compliant substituted amended
complaint.

Even assuming, without deciding, that this newest

complaint would be adequate, the defendants, magistrate judge,
and undersigned would once again have to embark on another
examination of his complaint to see if it were properly pled.
It is late in the day for that exercise.

In short, plaintiff

has greatly burdened the magistrate judge, defendants, and the
undersigned with his slow, grudging, and non-compliant response
to a court order. Given his experience as a Title VII litigant,
he knows better.
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Accordingly, the Court ADOPTS the magistrate judge’s Final
R&R [41] granting defendants’ Motion to Dismiss Second Amended
Complaint
prejudice.

[35].

The

In

other

Court

will,

words,

if

however,
the

do

plaintiff

so

without

wishes

to

reinitiate litigation on this dispute, he may, but he will have
to file a new lawsuit, and pay a new filing fee.3

As to any

claims not already dismissed with prejudice by the magistrate
judge and this Court, these remaining claims (Counts 2, 3, and
7) are dismissed without prejudice.

SO ORDERED, this 20th day of SEPTEMBER, 2012.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

3

The Court notes that paying a new filing fee is a gentle
burden, as plaintiff’s conduct justifies an order requiring him
to compensate the defendants for the expense they incurred in
having to litigate, at length, plaintiff’s non-compliant
complaints.
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