Wallace v. DaVita Inc

Filing 18

ORDER RULING ON REPORT AND RECOMMENDATION adopting the Report and Recommendation of Magistrate Judge Bristow Marchant dismissing this action without prejudice and without issuance and service of process. Signed by Honorable Richard M Gergel on 7/24/2013. (sshe, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Brenda Lee Wallace,
Plaintiff,
v.
DaVita, Inc.,
Defendant.

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CIA No. 2:I3-1032-RMG

ORDER

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge recommending that this Court dismiss this action without prejudice and without issuance
and service of process. (Dkt. No. 16). For the reasons set forth below, the Court adopts the
R&R as the order of the Court.
Background

Plaintiff filed this matter pro se and in forma pauperis alleging violation of Title VII of
the Civil Rights Act of 1964,42 U.S.C. §§ 2000e, et seq. This case was referred to a Magistrate
Judge for pre-trial handling pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2)(e),(g) DSC. Plaintiff's initial complaint contained little information, but indicated
she intended to bring a claim for retaliation. (Dkt. No.1). In response, the Magistrate Judge
issued an order directing Plaintiff to provide sufficient facts concerning her claim.

The

Magistrate Judge warned Plaintiff that failure to provide specific allegations could result in
dismissal of her claim. (Dkt. No. 10). Plaintiff then filed another complaint in which she
provided somewhat more facts. (Dkt. No. 1-2). The Magistrate Judge then preformed an initial
review of the complaint pursuant to the provisions of28 U.S.C. § 1915. The Magistrate Judge
then issued an R&R recommending that this Court dismiss Plaintiff's complaint without

prejudice and without issuance of service of process because the complaint failed to state a claim
on which relief may be granted. (Dkt. No. 16) (citing 28 U.S.C. § 1915(e)(2)(B)(ii». Plaintiff
filed no timely objections to the R&R.
Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Under 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss an action filed in forma

pauperis if it determines that the action: "(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief."
In reviewing these pleadings, the Court is mindful of Plaintiff's pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See. e.g., De'Lonta v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintiff's clear failure to allege facts that set forth a
cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).

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Discussion

The Magistrate Judge correctly detennined that Plaintiff failed to state a claim for
retaliation under Title VII. To state a claim for retaliation, Plaintiff must allege that she engaged
in some "protected activity." Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258-59
(4th Cir. 1998).

Protected activity includes opposition to treatment which the Plaintiff

reasonably believes to be a violation of Title VII. Jordan v. Alt. Res. Corp., 458 F.3d 332, 352
(4th Cir. 2006). In Plaintiffs second complaint she stated specifically the names of those to
whom she complained, the names of the people who disciplined her after she complained, and
the damages she suffered as a result of Defendant's actions. (Dkt. No. 1-2). However, Plaintiff
fails to allege any facts explaining how her "complaints" were ''protected activity." Therefore,
Plaintiff has failed to state a claim for which relief can be granted, and her complaint is properly
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(ii).
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R of the
Magistrate Judge as the order of the Court. (Dkt. No. 16). Accordingly, the Court dismisses this
action without prejudice and without issuance and service of process.
AND IT IS SO ORDERED.

Richard Mark
g 1
United States District Court Judge
July W, 2013
Charleston, South Carolina

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