Ogidi-Gbegbaje v. Western Express

Filing 16

OPINION AND ORDER adopting Magistrate Judge Janet F. King's Final Report and Recommendation 12 , overruling Plaintiff's Objections 14 and dismissing Plaintiff's race discrimination claim against Defendant Western Express Inc. Signed by Judge William S. Duffey, Jr on 10/4/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL OGIDI-GBEGBAJE,
Plaintiff,
v.

1:17-cv-936-WSD

WESTERN EXPRESS, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [12] (“Final R&R”) granting in part and denying in
part Defendant Western Express, Inc.’s (“Defendant”) Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment [7] (the “Motion”). The Magistrate
Judge recommends granting Defendant’s Motion to Dismiss and dismissing
Plaintiff Michael Ogidi-Gbegbaje’s (“Plaintiff”) Complaint [3].1 Also before the
Court are Plaintiff Michael Ogidi-Gbegbaje’s (“Plaintiff”) Objections [14] to the
R&R.
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The Magistrate Judge recommends denying Defendant’s Summary
Judgment Motion in the Alternative. Because the Final R&R grants Defendant’s
Motion to Dismiss, it need not rule on Defendant’s Summary Judgment Motion in
the Alternative. The Court adopts the Magistrate Judge’s Final R&R insofar as its
recommendation relating to Defendant’s Motion to Dismiss.

I.

BACKGROUND
On March 16, 2017, Plaintiff, proceeding pro se, filed his Complaint.

Plaintiff asserts a claim of racial discrimination pursuant to Title VII, 42 U.S.C.
§ 2000e-2(a)(1). Plaintiff claims that Defendant discriminated against him based
on his race, African-American, and his national origin, Nigerian, when it failed to
re-hire him. (Compl. at 1, 12-14). Plaintiff states he was hired by Defendant on
April 1, 2016. (Compl. at 14). On July 12, 2016, Plaintiff was arrested and taken
to jail for six months. (Id.). Upon his release in late 2016, Plaintiff reapplied for
employment with Defendant but was not rehired. Although Plaintiff states
Defendant notified him that it chose not to rehire him based on his criminal record,
he concludes in his Complaint that he believes he was “discriminated against
because of [his] race (African-American) and national origin (Nigerian) in
violation of Title VII . . . .” (Id.).
On June 2, 2017, Defendant filed its Motion arguing (1) Plaintiff’s
discrimination claim is conclusory and without any factual support and (2) Plaintiff
has failed to sufficiently state a claim for discrimination. (Motion at 6-7, 8-13).
On July 17, 2017, Plaintiff filed his untimely Response [11] (“Response”). On
August 18, 2017, the Magistrate Judge issued her Final R&R recommending
granting Defendant’s Motion to Dismiss. On September 14, 2017, Plaintiff filed

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his Objections to the Final R&R, generally objecting to Magistrate Judge King’s
findings, arguing that his Response to the Motion was timely filed, and claiming
that Defendant discriminated against him based on his criminal record. (Obj. at 12).
II.

LEGAL STANDARDS
A.

Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.”
Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)).
The Court also is not required to accept as true conclusory allegations and legal
conclusions. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th
Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)); see also White v. Bank of America, NA, 597 F.
App’x 1015, 1018 (11th Cir. 2014) (“[C]onclusory allegations, unwarranted

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deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.”) (quoting Oxford Asset Mgmt., Ltd. V. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002)).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570).2
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
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Federal Rule of Civil Procedure 8(a)(2) requires the plaintiff to state “a short
and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). In Twombly, the Supreme Court recognized the liberal
minimal standards imposed by Federal Rule 8(a)(2) but also acknowledged that
“[f]actual allegations must be enough to raise a right to relief above the speculative
level . . . .” Twombly, 550 U.S. at 555.

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liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules of Civil Procedure.
See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir.
2005). “Even though a pro se complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007). “[A] district court does
not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv.,
297 F. App’x 863, 864 (11th Cir. 2008).
B.

Magistrate Judge’s Report and Recommendation

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). Where no party has objected to the
report and recommendation, the Court conducts only a plain error review of the

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record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
III.

DISCUSSION
In his Objections, Plaintiff argues his Response was timely filed because he

mailed it to the Court on July 10, 2017. (Obj. at 1-2). Plaintiff’s contention is
without merit. N.D. Ga. R. 7.1B states:
Any party opposing a motion shall serve the party's response, responsive
memorandum, affidavits, and any other responsive material not later than
fourteen (14) days after service of the motion, except that in cases of motion
for summary judgment the time shall be twenty-one (21) days after the
service of the motion. Failure to file a response shall indicate that there is no
opposition to the motion.
Plaintiff’s Response was filed beyond the maximum time limit of twenty-one days.
Even if Plaintiff’s Response were timely, the Court would reach the same
conclusion.
The Court has carefully reviewed the remainder of Plaintiff’s Objections and
finds, even when liberally construed, that he has not stated any specific objection
to the findings and recommendations of the Magistrate Judge or stated how they
are factually or legally incorrect. See Macort v. Prem, Inc., 208 F. App’x 781, 784
(11th Cir. 2006) (“It is critical that the objection be sufficiently specific and not a
general objection to the report.”); Heath v. Jones, 863 F.2d 815, 822 (11th Cir.
1989) (“[T]o challenge the findings and recommendations of the magistrate
[judge], a party must . . . file . . . written objections which shall specifically identify
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the portions of the proposed findings and recommendation to which objection is
made and the specific basis for objection.”); Marsden v. Moore, 847 F.2d 1536,
1548 (11th Cir. 1988) (“Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,
conclusive, or general objections need not be considered by the district court.”).
Plaintiff also has not alleged any factual support for his generalized allegations of
discrimination and, in his Objections, he acknowledged he was not rehired because
of his criminal conviction. The Court finds that the Magistrate Judge did not
plainly err in her findings and recommendations, and those findings are adopted by
the Court.3 The Court also overrules Plaintiff’s purported objections to the Final
R&R.
IV.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final

Report and Recommendation [12] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections [14] are
OVERRULED.
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The Court would reach the same decision if it held Plaintiff’s Objections
were sufficiently specific and reviewed the Magistrate Judge’s Final R&R de novo.

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IT IS FURTHER ORDERED that Plaintiff’s race discrimination claim
against Defendant Western Express Inc. is DISMISSED.

SO ORDERED this 4th day of October, 2017.

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