Glidden v. Furgal et al

Filing 82

ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 68 Text Report and Recommendations, granting 50 Motion to Dismiss Individual Defendants And To Substitute The Department Head, dismissing defendants David Furgal, Craig Valentine, Chanel Frazier, Sandra Harrison, and Sheila Edmunds with prejudice and directing the be returned to the Magistrate Judge for further proceedings on the merits regarding the remaining defendant John Potter, Postmaster General. Signed by Honorable Joseph F Anderson, Jr on 10/01/09. (bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA

P h i llip E. Glidden,

) ) P l a i n t if f , ) v. ) ) David Furgal; Craig Valentine; Chanel Frazier; ) S a n d ra Harrison; Sheila E. Edmunds; and ) Jo h n E. Potter, Postmaster General, ) ) D e f e n d a n ts . ) _____________________________________ )

C/A No.: 3:08-1532-JFA-PJG

ORDER

T h e pro se plaintiff, Phillip E. Glidden, initiated this action on April 10, 2008 against th e individual defendants alleging claims of discrimination under Title VII of the Civil R ig h ts Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"). Specifically, the p la in tif f contends he was subjected to verbal abuse and intimidation while he served as an e m p lo ye e of the United States Postal Service. D e f en d a n ts filed a motion to dismiss on August 26, 2008. The court issued an order p u rs u a n t to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying plaintiff of the s u m m a ry dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. The plaintiff responded to the motion. T h e Magistrate Judge assigned to this action 1 prepared a Report and Recommendation

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. (continued...)

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o n February 20, 2009 ("First Report"), wherein she suggested that the defendants' motion to dismiss should be granted because the plaintiff had not exhausted his administrative r e m e d ie s . The Magistrate Judge further opined that the individual defendants were not p ro p e r parties in an employment discrimination action. The plaintiff was advised of his right to file objections to the First Report. On March 1 1 , 2009, after the time expired to file objections, the undersigned adopted the First Report, g ra n te d the individual defendants' motion to dismiss, and entered judgment accordingly. The a c tio n was dismissed without prejudice and with leave to refile against the Postmaster G e n e ra l within 90 days of receiving the Commissioner's final decision on his appeal. T h e same day the order dismissing the action was entered, the plaintiff filed a late o b je c tio n to the Report and to the defendants' motion to dismiss. The court interpreted the p la in tif f 's filings as a Motion to Alter or Amend the Judgment under Rule 59 of the Federal R u le s of Civil Procedure. The court then vacated its March 11, 2009 order of dismissal and r e m a n d e d the case to the Magistrate Judge for further pretrial proceedings on the merits. O n April 6, 2009, the individual defendants filed a renewed motion to dismiss and to su b stitu te John Potter, Postmaster General, as the sole defendant. The plaintiff responded to th e motion and filed an amended complaint naming the Postmaster General as a defendant, ye t retaining the other individual defendants as parties. The plaintiff did not have leave of

(...continued) Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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c o u rt or consent of the opposing party to amend the complaint as required by Fed. R. Civ. P. 1 5 (a). O n July 24, 2009, the Magistrate Judge issued a second Report and Recommendation (" T e x t Report") suggesting dismissal of the individual defendants "for the reasons stated in the defendants' memorandum in support of their renewed motion to dismiss [doc. # 50-2]; th e court's previous Report and Recommendation [doc. # 39]; and the district court's prior o rd e r granting the motion to dismiss [doc. # 41]." The Magistrate Judge suggested that John P o tte r, Postmaster General, was the only proper defendant in this case. The plaintiff was advised of his right to file objections to the Text Report. The p lain tiff has not filed any objections to the Text Report as of the date of this order or within th e prescribed time limits. A f te r reviewing the record, the applicable law, and the Text Report, the court finds it appropriate to grant the defendants' renewed motion to dismiss the individual defendants. A cc o rdin g ly, the individual defendants David Furgal, Craig Valentine, Chanel Frazier, S a n d ra Harrison, and Sheila Edmunds are dismissed with prejudice. This case shall be r e tu r n e d to the Magistrate Judge for further proceedings on the merits regarding the re m a in in g defendant, John Potter, Postmaster General. IT IS SO ORDERED.

O ctob er 1, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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