Ingram v. Guardsmark Security Company

Filing 9

ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS for 7 Order, Report and Recommendations; DISMISSING WITHOUT PREJUDICE. Signed by Judge Jon Phipps McCalla on 11/13/2015. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TAMARA E. INGRAM,
Plaintiff,
v.
GUARDSMARK SECURITY COMPANY,
Defendant.

)
)
)
)
)
)
)
)

No. 2:15-cv-02346-JPM-cgc

ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION; DISMISSING
WITHOUT PREJUDICE

Before the Court is the Magistrate Judge’s “Report and
Recommendation Pursuant to 28 U.S.C. § 1915” (the “Report and
Recommendation”), filed on October 6, 2015.

(See ECF No. 7.)

In the Report and Recommendation, the Magistrate Judge
recommends “that the Court dismiss the action with prejudice for
lack of standing and for failure to state a claim upon which
relief may be granted.”

(Id. at 6.)

On October 20, 2015, Plaintiff timely filed her Objection
to the Report and Recommendation (ECF No. 8).
P. 72(b)(2).
Objection.

See Fed. R. Civ.

Defendant did not file a response to Plaintiff’s
See id.

For the reasons stated below, the Court ADOPTS in part the
recommendation in the Report and Recommendation (ECF No. 8) and
dismisses the action without prejudice.

I.

BACKGROUND
This action involves claimed violations of Americans with

Disabilities Act of 1990 (“ADA”), as codified 42 U.S.C.
§§ 12112-12117.

(See Compl. ¶ 1, ECF No. 1.)

In a Complaint filed on May 22, 2015, Tamara Ingram
(“Plaintiff”), who is proceeding pro se, asserts that she filed
charges against Defendant with the Equal Employment Opportunity
Commission (“EEOC”) in May 2013.

(Id. ¶ 12.)

She further

asserts that she received a Notice of Right to Sue (“RTS”) from
the EEOC on April 8, 2015.

(Id. ¶ 14.)

Plaintiff alleges that

Defendant discriminated against her mother based on disability
because after the death of her mother, Defendant failed to make
a payment from her mother’s 401K plan or life insurance.

(Id.

¶¶ 9, 10.)
On May 22, 2015, Plaintiff filed a Motion for Leave to
Proceed In Forma Pauperis (ECF No. 2) and a Motion to Appoint
Counsel (ECF No. 3).
II.

ANALYSIS
Federal Rule of Civil Procedure 72(b)(2) provides that

“[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).

“The district judge

must determine de novo any part of the magistrate judge’s
2

disposition that has been properly objected to.”

Fed. R. Civ.

P. 72(b)(3).
The portions of the Report and Recommendation as to which
no specific objections were timely filed are reviewed for clear
error.

See Fed. R. Civ. P. 72(b) advisory committee notes;

Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509
(6th Cir. 1991) (noting that when a party makes a general
objection, “[t]he district court’s attention is not focused on
any specific issues for review, thereby making the initial
reference to the magistrate useless”).

“A general objection to

the entirety of the magistrate’s report has the same effects as
would a failure to object.”

Howard, 932 F.2d at 509.

Moreover,

the failure to properly file objections constitutes a waiver of
appeal.

See Howard, 932 F.2d at 508; United States v. Walters,

638 F.2d 947, 949-50 (6th Cir. 1981).
Plaintiff fails to make any specific objection to the
Magistrate Judge’s Report.

Rather, Plaintiff merely states that

she is “very disappointed [sic] about the outcome” because her
“mother worked very hard for her benefits.”

(ECF No. 8 at 1.)

Plaintiff also attaches to her Complaint documentation
reflecting that her mother received awards for her work
performance, that her mother had a mortgage loan, and a memo
discussing the same assertions Plaintiff has made in this case.
(ECF No. 8-1 to 8-7.)

The only reference to the Magistrate’s
3

Report and Recommendation is in the title “Objection to this
Report.”

(See ECF No. 8.)

Because Plaintiff makes only general objections to the
dismissal of her Complaint, the Court reviews the Magistrate’s
Report and Recommendation for clear error.
at 509.

See Howard, 932 F.2d

On clear-error review, the Court hereby ADOPTS the

Report and Recommendation (ECF No. 7) as to the recommendation
that this case should be dismissed based on Plaintiff’s lack of
standing.

Because Plaintiff lacks standing, however, the Court

is without jurisdiction to review the merits of this case.

See

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94
(1998) (“Without jurisdiction the court cannot proceed at all in
any cause.”).

Accordingly, the Court declines to adopt the

recommendation that Plaintiff’s claim be dismissed for failure
to state a claim upon which relief may be granted.

“[A] lack of

‘standing’ in [the] constitutional sense, like the lack of
subject matter jurisdiction generally, mandates a dismissal
without prejudice.”

B. & V. Distrib. Co. v. Dottore Cos., LLC,

278 F. App’x 480, 487 (6th Cir. 2008).

Plaintiff’s Complaint

(ECF No. 1) is therefore DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 13th day of November, 2015.

/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE
4