Lanier v. Sizemore, Inc. et al

Filing 9

ORDER directing Plaintiff to file an amended complaint within 30 days from the date of this order. REPORT AND RECOMMENDATIONS dismissing the claims against Davis, Sizemore, and McQilvray re 1 Complaint filed by Keith Lanier. (Objections to R&R due by 5/9/2019). Signed by Magistrate Judge Christopher L. Ray on 4/25/19. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
KEITH LANIER,
Plaintiff,
v.
SIZEMORE, INC., et al.,
Defendants.

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CV618-003

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ORDER AND REPORT AND RECOMMENDATION
Plaintiff has filed a complaint for employment discrimination in this
court against his former employer and three individuals. Doc. 1. The
Court granted his request to pursue his case in forma pauperis (IFP). Doc.
6.

The Court now screens the Complaint pursuant to 28 U.S.C.

§ 1915(e)(2), which requires the immediate dismissal of any pro se
complaint that fails to state at least one actionable claim.1
As an initial matter, Plaintiff’s claims against the three individual
defendants—Allen Davis, Preston Sizemore, Jr. and David McQilvray—

Because the Court applies Fed. R. Civ. P. 12(b)(6) standards in screening a complaint
pursuant to § 1915A, Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001),
allegations in the Complaint are taken as true and construed in the light most
favorable to the plaintiff. Bumpus v. Watts, 448 F. App’x 3, 4 n.1 (11th Cir. 2011).
Conclusory allegations, however, fail. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(discussing a Rule 12(b)(6) dismissal).
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should be DISMISSED. Relief in Title VII cases is against the employer,
not against individual employees. Busby v. City of Orlando, 931 F.2d 764,
772 (11th Cir. 1991). As a result, the proper defendants in this suit are
the employers or supervisory employees in their official capacities as
agents of the employer. Id. To the extent plaintiff names these three
defendants in their official capacities, the claims are redundant because
the employer has already been named. Busby, 931 F.2d at 776; Wheeles v.
Nelson’s Elec. Motor Servs., 559 F. Supp. 2d 1260, 1267 (M.D. Ala. 2008)
(“However, when a plaintiff names both the employer and the individual
supervisor in his official capacity, the supervisor may be dismissed from
the action.”).
The remainder of plaintiff’s complaint is also deficient. To avoid
dismissal for failure to state a claim upon which relief can be granted, the
allegations in the complaint must “state a claim for relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That
is, “[f]actual allegations must be enough to raise a right to relief above the
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speculative level.” Twombly, 550 U.S. at 555. While Rule 8(a) of the
Federal Rules of Civil Procedure does not require detailed factual
allegations, “it demands more than an unadorned, the defendant
unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A complaint is
insufficient if it “offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action,’” or if it “tenders ‘naked assertions’
devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S.
at 555, 557). In short, the complaint must provide a “‘plain statement’
possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.’”
Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)). Here, plaintiff
states that he was terminated after he allowed a patient he was guarding
to escape. Doc. 1 at 8. He then states that “I feel my rights was violation
of the way other officer of younger age, race, color and gender was treating
in similar situation.” Id. However, plaintiff fails to provide any facts
supporting his allegations that he was treated differently because of his
race, gender, age, or color. In fact, plaintiff fails to tell us anything about
any of those categories at all.
Although he fails to state a viable claim, “when a more carefully
drafted complaint might state a claim, a district court should give a pro se
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plaintiff at least one chance to amend the complaint before the court
dismisses the action.” Jenkins v. Walker, 620 F. App’x 709, 711 (11th Cir.
2015) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled
in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 &
n. 1 (11th Cir. 2002) (en banc)); see also Fed. R. Civ. P. 15(a)(2) (courts
should grant leave to amend “freely . . . when justice so requires”);
Seckinger v. Bank of Am., N.A., No. CV415-306, 2016 WL 1381814 at *2
(S.D. Ga. Apr. 6, 2016). That’s the case here. Lanier’s claim might survive
preliminary review if he included facts supporting his allegations that
defendant terminated him because of his age, gender, race, or color. As a
result, plaintiff is DIRECTED to file an amended complaint within 30
days from the date of this order correcting the deficiencies noted in this
order or face a recommendation of dismissal.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B)
and this Court’s Local Rule 72.3. Within 14 days of service, any party
may file written objections to this R&R with the Court and serve a copy
on all parties.

The document should be captioned “Objections to

Magistrate Judge’s Report and Recommendations.”
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Any request for

additional time to file objections should be filed with the Clerk for
consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO ORDERED AND REPORTED AND RECOMMENDED, this
25th day of April, 2019.
________________________
______________________________
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CHRISTOPHER L. RAY
HRISTOPH
RI OPHER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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