Nelson v. Gibson

Filing 8

ORDER adopting 6 Report and Recommendations. Signed by Judge Jon Phipps McCalla on 11/24/2014. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GERALD G. NELSON,
Plaintiff,
v.
SLOAN D. GIBSON, Acting
Secretary for Veteran Affairs,
Defendant.

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No. 2:14-cv-02659-JPM-tmp

ORDER ADOPTING REPORT AND RECOMMENDATION

Before the Court is the Magistrate Judge’s Report and
Recommendation, filed August 26, 2014.

(ECF No. 6.)

In the

Report and Recommendation, the Magistrate Judge recommends
dismissal of the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failing to state a claim
upon which relief may be granted.

(ECF No. 6 at 6.)

“It is

further recommended that, should the court dismiss the
complaint, the plaintiff be granted leave to file an amended
complaint, within thirty (30) days from the date this report and
recommendation is adopted, that satisfies the requirements of §
1915(e)(2)(B).”

(Id.)

Pursuant to Federal Rule of Civil Procedure 72(b)(2),
“[w]ithin 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific
written objections to the proposed findings and

recommendations.”

Fed. R. Civ. P. 72(b)(2).

“When no timely

objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.”

Fed. R. Civ. P. 72(b) advisory

committee notes; accord Higgins v. Shinseki, No. 2:11-2728-JPMdkv, 2013 WL 1966590, at *1 (W.D. Tenn. May 10, 2013) (McCalla,
J.).
On August 27, 2014, Plaintiff filed a “Description of
Nature of Claims/Defenses.”

(ECF No. 7.)

The Description of

Nature of Claims/Defenses does not explicitly object to the
Magistrate Judge’s Report and Recommendation.

(See id.)

Therefore, the Court interprets the Description of Nature of
Claims/Defenses as an amended complaint, rather than objection
to the Magistrate Judge’s Report and Recommendation.
Accordingly, the Court reviews the Magistrate Judge’s Report and
Recommendation for clear error.

See Fed. R. Civ. P. 72(b)

advisory committee notes.
Plaintiff Gerald G. Nelson filed a Complaint on August 25,
2014.

(ECF No. 1.)

According to the Complaint, Plaintiff’s

action was “brought pursuant to Title VII of the Civil Rights
Act of 1964 for employment discrimination.”
PageID 1.)

(ECF No. 1 at

Plaintiff’s sole allegation was that Defendant

“harrasses [sic] me after filing a complaint with EEOC regarding
initial incident of following me to my car. Since then, there
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has been ongoing harrassment [sic], discrimination and
retaliation.” (Id. at PageID 2.)

The entirety of Plaintiff’s

prayer for relief was that the Court direct Defendant to
“restore the plaintiff’s shift that was taken from him after an
[Equal Employment Opportunity (“EEO”)] complaint was filed; to
relieve plaintiff of unfair actions in response to claim filed
against defendant.”

(Id. at PageID 3.)

Based on the above allegations, the Magistrate Judge found
Plaintiff’s Complaint to have failed to “allege sufficient
factual content from which a court, ‘informed by its judicial
experience and common sense, could draw the reasonable
inference’ that Gibson has discriminated against Nelson on the
basis of his race or retaliated against Nelson for engaging in
protected EEO activity.”

(ECF No. 6 at 5 (quoting Keys v.

Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012)).)

For the

reasons stated in the Report and Recommendation, the Court
agrees with the Magistrate Judge that Plaintiff has failed to
state a claim upon which relief may be granted under Rule
12(b)(6).

Accordingly, the Court hereby ADOPTS the Report and

Recommendation (ECF No. 6) in its entirety.

The Court hereby

ORDERS that Plaintiff shall have thirty (30) days from entry of
this order to file an amended complaint that satisfies the
requirements of § 1915(e)(2)(B). If Plaintiff intends to rely on
Plaintiff’s Description of Nature of Claims/Defenses (ECF No.
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7), he must file a document incorporating those allegations and
specifically state that he asserts the allegations in said
document as the amended complaint.
IT IS SO ORDERED, this 24th day of November, 2014.

/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE

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