Burns v. Zadach et al

Filing 7

REPORT AND RECOMMENDATIONS that complaint be dismissed re 1 Complaint filed by Ellison Robert Burns, Sr., and Denying as moot 6 MOTION for Extension of Time filed by Ellison Robert Burns, Sr. Objections to R&R due by 12/22/2008. Signed by Magistrate Judge G. R. Smith on 12/8/2008. (mah)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVIS ION

ELLISON ROBERT BURNS, SR., Plaintiff, v.

) ) ) ) ) Case No. CV408-197

) STEVEN ZADACH, President Georgia) Stevedore Association, MAURY B. ) ROTHSCHILD, Esq., Ellis, Painter, ) Ratterree and Adams, LLP, Georgia ) Stevedore Association attorneys and ) any and all other attorneys ) representation for Georgia Stevedore ) Association, SAVANNAH MARITIME ) ASSOCIATION, INC., any and all 1414 SAVANNAH, GA, WILLIE SEYMORE, President I.L.A. Local 1414, BRUCE WILLIAMS, Vice any other I.L.A. attorneys representation, Defendants. ) attorneys representation, I.L.A. LOCAL) ) )

) Chairman of Board also all I.L.A. and ) ) ) ) )

REPORT AND RECOMMENDATION On October 3, 2008, plaintiff filed the instant Title VII action against defendants. (Doc. 1.) This Court granted in forma

pauperis status but denied his request for appointment of counsel on October 22, 2008. (Doc. 5.) The Court also, however, noted that plaintiff had failed to submit an EEOC right-to-sue letter issued and dated within the 90-day period preceding the filing of his complaint. (Id. at 6.) The Court therefore ordered plaintiff to submit a right-to-sue letter within 20 days of its Order or risk dismissal of his claim. (Id. at 7.) Plaintiff has since filed a motion for extension of time, in which he states that he has "recently" filed a claim with the EEOC and seeks a time-extension while he awaits a right-to-sue letter to result from that claim. (Doc. 6.) As the filing of a complaint with the EEOC and the receipt of a denial and a right-to-sue-letter are prerequisites to the filing of such an action in the United States District Court, plaintiff's recent filing will not enable him to comply with Title VII's procedural requirements or with this Court's Order. 20 C.F.R. § 1614.407. As a result, plaintiff's motion for extension of time (doc. 6) is DENIED as moot, and his complaint

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should be DISMISSED without prejudice for failure to exhaust administrative remedies prior to initiating this action. 1 SO REPORTED AND RECOMMENDED this 8th day of December, 2008.

s/ G. R. SMITH

UNITED STATES MAGISTRATE JUDGE SOUThERN DISTRICT OF GEORGIA

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In the event plaintiff@ s recently-filed complaint is denied by the

EEOC, he may then file with this Court the right-to-sue letter that accompanies the notice of denial along with a new form complaint.

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