Farrow v. Frazier et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's federal claims against Defendants Will Frazier, Mrs. Linda, Tawana Hardee, Brittany, Mrs. Carolyn, and Michael Arrinston for failure to state a claim, and that the Court DISMISS without prejudice Plaintiff's state and local law claims against all Defendants re 6 Amended Complaint. Her federal claims against Defendant King & Prince Seafood may proceed. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 4/25/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/11/2018. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
LATISHA DENISE FARROW,
CIVIL ACTION NO.: 2:17-cv-150
WILL FRAZIER, et al.,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On December 12, 2017, Plaintiff filed this action, pro se, pursuant to 42 U.S.C. § 2000e
et seq. (“Title VII”), alleging employment discrimination against her by Defendants. (Doc. 1.)
Concurrent with her Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.)
Prior to ruling on Plaintiff’s Motion, the Court advised Plaintiff that she could not maintain a
Title VII action against individually named defendants and directed her to file an amended
complaint against a proper employer defendant and to include additional information regarding
her pursuit of administrative remedies. (Doc. 5.) Plaintiff then filed an amended complaint
naming a cognizable defendant. (Doc. 6.)
As set forth below, Plaintiff has now named a cognizable defendant, and she has
apparently exhausted her administrative remedies, (doc. 5, pp. 5–6); thus, the Court GRANTS
Plaintiff’s Motion to Proceed in Forma Pauperis, and her federal claims against Defendant King
& Prince Seafood may proceed.
However, I RECOMMEND that the Court DISMISS
Plaintiff’s federal claims against Defendants Will Frazier, Mrs. Linda, Tawana Hardee, Brittany,
Mrs. Carolyn, and Michael Arrinston for failure to state a claim and that the Court DISMISS
without prejudice Plaintiff’s state and local law claims against all Defendants. 1
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of her assets and shows an inability to pay the
filing fee and also includes a statement of the nature of the action which shows that she is
entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it
is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(i)–(ii); Grayson v. Mayview State Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002)
(non-prisoner indigent plaintiffs are “clearly within the scope of § 1915(e)(2)”); Dutta-Roy v.
Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at *2 (N.D. Ga. May 5, 2014) (frivolity
review of indigent non-prisoner plaintiff’s complaint).
When reviewing a complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This R&R constitutes fair notice to Plaintiff that her suit is barred and due to be
dismissed. As indicated below, Plaintiff will have the opportunity to present her objections to this
finding, and the District Court will review de novo properly submitted objections. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s R&R constituted adequate
notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond).
Additionally, this R&R provides Plaintiff the opportunity to amend her Complaint to correct the
deficiencies noted herein. See Fed. R. Civ. P. 15. Should Plaintiff seek to amend her Complaint, she
must file the amendment within fourteen (14) days from the date of this R&R.
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).
Plaintiff’s Amended Complaint
In her original Complaint, Plaintiff asserted various employment discrimination claims
only against individual co-workers. (Docs. 1, 1-1.) The Court advised Plaintiff that she could
not state a claim against individually named defendants under Title VII, the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., or the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111 et seq. (Doc. 5.) The Court instructed
Plaintiff to amend, (id.), and in her Amended Complaint, Plaintiff names King & Prince Seafood
as Defendant, as well as all of the individual Defendants named in the original Complaint. (Doc.
6.) Plaintiff also alleges Defendants violated Georgia law, as well as local law, but does not
identify which state and local laws Defendants allegedly violated or what conduct resulted in
these alleged violations. (Id. at p. 3; Doc. 6-1.)
As Plaintiff should now be well aware, she may not bring federal employment law
discrimination claims against her co-workers in their individual capacities. Individual employees
are not subject to liability under the federal discrimination laws Plaintiff claims Defendants
violated. Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007) (holding “individual liability
is precluded for violations of the ADA’s employment discrimination provision”); Dearth v.
Collins¸441 F.3d 931, 933 (11th Cir. 2006) (holding “relief under Title VII is available against
only the employer and not against individual employees whose actions would constitute a
violation of the Act”); Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995) (holding
individual employees “cannot be held liable under the ADEA”).
Accordingly, the Court should dismiss Plaintiff’s federal discrimination claims against
Defendants Will Frazier, Mrs. Linda, Tawana Hardee, Brittany, Mrs. Carolyn, and Michael
Arrinston, the individual co-worker Defendants. Plaintiff’s Title VII, ADEA, and ADA claims
against Defendant King & Prince Seafood shall remain pending before the Court.
Supplemental Jurisdiction over Plaintiff’s State and Local Law Claims
Plaintiff alleges Defendants violated state and local laws but does not specify which state
or local law claims she intends to bring in this action. (Docs. 6, 6-1.) Likewise, Plaintiff fails to
identify what conduct by which Defendant she alleges violated state and local law. (Id.) At best,
Plaintiff alleges Defendant Brittany committed assault and battery by trying to touch her eye lids
and by bumping her as they walked together. (Doc. 6-1, p. 1.) Plaintiff also makes allegations
that she bumped Defendant Tawana Hardee, (id. at p. 3), but on the whole, Plaintiff’s state and
local law allegations are utterly unclear. What is clear, however, is that the gravamen of
Plaintiff’s Amended Complaint concerns Defendant King & Prince Seafood’s alleged retaliation,
hostile work environment, failure to promote, and unlawful termination. (Doc. 6, p. 4; Doc. 6-1.)
A federal court can exercise supplemental jurisdiction over claims that are so related to a
plaintiff’s federal claims that they form part of the same case or controversy. 28 U.S.C. §
1367(a). “The Constitutional ‘case or controversy’ standard confers supplemental jurisdiction
over all state law claims which arise out of a common nucleus of operative fact.” Lucero v.
Trosch, 121 F.3d 591, 597 (11th Cir. 1997) (citing United Mine Workers v. Gibbs, 383 U.S. 715,
724–25 (1966)). A federal district court can decline to exercise supplemental jurisdiction over a
pendent state claim under 28 U.S.C. § 1367(c) if:
(1) the claim raises a novel or complex issue of state law;
(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction;
(3) the district court has dismissed all claims over which it has original
(4) in exceptional circumstances, there are other compelling reasons for declining
“In determining whether [dismissal] is appropriate under any of these four categories the Court
must make a case specific analysis and consider factors including judicial economy,
convenience, fairness to litigants, and comity. Gibbs, 383 U.S. at 726.
In a proceeding before a district court upon a federal cause of action, the court has
substantial discretion in determining whether to exercise supplemental jurisdiction over pendent
28 U.S.C. § 1367; Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89
(11th Cir. 2004) (per curiam).
This discretion survives even where all federal claims are
dismissed. Raney, 370 F.3d at 1088–89; see also Palmer v. Hosp. Auth., 22 F.3d 1559, 1567–68
(11th Cir. 1994). Ordinarily, when all federal claims are eliminated before trial, the district court
should decline to exercise jurisdiction over the remaining state-law claims. Carnegie–Mellon
Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Nevertheless, the decision ultimately rests within
the district court’s discretion, to be guided by considerations of judicial economy, fairness,
comity, and convenience. Id.; see also Casey v. City of Miami Beach, 805 F. Supp. 2d 1361,
1362 (S.D. Fla. 2011) (declining to remand where factors favored retention of jurisdiction though
federal claims were dismissed).
In their current state, Plaintiff’s state law claims are not pleaded clearly enough to allege
that they arise out of the same common nucleus of operative fact as the federal claims. Further,
assuming that they are so related, the Court should nonetheless decline to exercise supplemental
jurisdiction over the state law claims. Although Plaintiff’s putative assault and battery claims do
not raise novel or complex issues, Plaintiff fails to specify which other state and local law claims
she wishes to bring and does not detail what alleged facts gave rise to these claimed violations.
Moreover, Plaintiff has not cited, and the Court is not aware of, any state or local employment
discrimination laws applicable to Plaintiff’s facts and cognizable in this cause of action.
Furthermore, it appears Plaintiff seeks to bring these state law claims against the individual coworker Defendants, and I have recommended that the Court dismiss all claims against those
Defendants over which the Court has original jurisdiction. Finally, should the Court permit
Plaintiff to assert state law assault and battery claims against Defendant Brittany, as well as other
unspecified state and local law claims, in her employment discrimination suit against Defendant
King & Prince Seafood, those distinct state and local claims would predominate over her federal
employment law claims. Given this early stage of litigation, judicial economy will ultimately be
preserved and Plaintiff will not be inconvenienced by having to bring her state and local claims,
whatever those may be, in a state forum.
Therefore, the Court should decline to exercise its discretion to maintain supplemental
jurisdiction over Plaintiff’s cursory state and local law claims and DISMISS without prejudice
those claims against all Defendants.
Motion to Proceed in Forma Pauperis
In a Title VII action, the Court “may authorize the commencement of the action without
the payment of fees, costs, or security.” 42 U.S.C. § 2000e-5(e)(1). Additionally, pursuant to 28
U.S.C.A. § 1915(a), the Court may authorize the commencement of any lawsuit without
prepayment of fees. Of course, when assessing whether to grant in forma pauperis status, the
Court considers the filing fee, which, in this civil action is $400. See 28 U.S.C. § 1914.
In her Motion for Leave to Proceed in Forma Pauperis, Plaintiff provides sufficient
evidence that she cannot afford to pay the filing fee in this action. (Doc. 2.) Accordingly, the
Court GRANTS Plaintiff’s Motion to Proceed in Forma Pauperis.
As the Plaintiff is hereby authorized to proceed in forma pauperis, service must be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(2). In most cases, the Marshal will
first mail a copy of the complaint to each defendant by first-class mail and request that each
defendant waive formal service of the summons. Fed. R. Civ. P. 4(d). Individual and corporate
defendants have a duty to avoid unnecessary costs of serving the summons, and any such
defendant who fails to comply with the request for waiver must bear the costs of personal service
unless good cause can be shown for the failure to return the waiver. Fed. R. Civ. P. 4(d)(2).
Generally, a defendant who timely returns the waiver is not required to answer the complaint
until sixty (60) days after the date that the Marshal sent the request for waiver. Fed. R. Civ. P.
For the above-stated reasons, the Court GRANTS Plaintiff’s Motion to Proceed in
Forma Pauperis, and her federal claims against Defendant King & Prince Seafood may proceed.
However, I RECOMMEND that the Court DISMISS Plaintiff’s federal claims against
Defendants Will Frazier, Mrs. Linda, Tawana Hardee, Brittany, Mrs. Carolyn, and Michael
Arrinston for failure to state a claim, and that the Court DISMISS without prejudice Plaintiff’s
state and local law claims against all Defendants.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence. However, Plaintiff may
amend the Complaint to cure any deficiencies noted in this Report and Recommendation. See
Fed. R. Civ. P. 15. Should Plaintiff seek to amend the Complaint, Plaintiff must file the
amended complaint within fourteen (14) days from the date of this Report and Recommendation.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court is to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of April,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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