Marigny v. Department Of Veterans Affairs et al

Filing 11

ORDER adopting Report and Recommendations re 8 Report and Recommendations; ORDER dismissing Case without Prejudice. Signed by Judge Jon Phipps McCalla on 8/8/2017. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
GLORIA MARIGNY,
Plaintiff,
v.
DEPARTMENT OF VETERANS
AFFAIRS, et al.,
Defendants.

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No. 2:17-cv-02312-JPM-tmp

ORDER ADOPTING THE REPORT AND RECOMMENDATION; ORDER
DISMISSING CASE WITHOUT PREJUDICE

Before the Court is the Magistrate Judge’s Report and Recommendation, filed May 24,
2017. (ECF No. 8.) In the Report and Recommendation, the Magistrate Judge recommends
“that Marigny’s complaint be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii),
without prejudice and with leave to amend the complaint within 15 days of an order adopting this
recommendation.” (Id. at PageID 23.)
On June 7, 2017, Plaintiff timely filed her Objection to the Report and Recommendation
(ECF No. 9). See Fed. R. Civ. P. 72(b)(2). Defendant did not file a response to Plaintiff’s
objection. For the reasons stated below, the Court ADOPTS the Report and Recommendation
and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint.
I.

BACKGROUND
This action involves claimed violations of Title VII of the Civil Rights Act of 1964

(“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). (See ECF No. 1 at
PageID 1.)

In a Complaint filed on May 4, 2017, Gloria Marigny (“Plaintiff”), who is proceeding pro
se, asserts that she filed charges against Defendant with the Tennessee Human Rights
Commission and the Equal Employment Opportunity Commission (“EEOC”) in 2015, 2016, and
2017. (ECF No. 1 ¶¶ 11-12.) Plaintiff has not yet received a Notice of Right to Sue (“RTS”)
from the EEOC. (See ECF No. 1 at ¶ 14; ECF No. 9 at PageIDs 26-27.) Plaintiff alleges that
Defendant discriminated against her by giving her misleading information, making derogatory
statements about her, and making false allegations of wrongdoing on Plaintiff’s part, among
other allegations. (Compl. ¶ 10, ECF No. 1.)
On May 4, 2017, Plaintiff filed her pro se Complaint. (ECF No. 1.) On the same day,
Plaintiff moved to proceed in forma pauperis (ECF No. 2), which was granted in an Order dated
May 10, 2017. (ECF No. 7.) The Magistrate Judge filed a Report and Recommendation on May
24, 2017, recommending the case be dismissed sua sponte for failure to state a claim. (ECF No.
8.) Plaintiff timely filed her objection to the Report and Recommendation (ECF No. 9) and filed
a Motion to Amend/Correct the Complaint to add Spring Gate Nursing Home as a party. (ECF
No. 10.)
II.

LEGAL STANDARD
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 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;

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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 (citing United States v. Walters,
638 F.2d 947, 950 (6th Cir. 1981)).
III.

ANALYSIS
Plaintiff fails to make any specific objections to the Report and Recommendation. In

Plaintiff’s Objection, she reiterates the facts alleged in her Complaint regarding her Title VII and
ADEA claims. (ECF No. 9.) Additionally, Plaintiff reiterates that she has not yet received a
Notice of Right to Sue from the EEOC, citing failures on the part of “Louise” and “Willie
Fuller.” (ECF No. 9 at 2-3.) Plaintiff also claims to “have document[s] and records to support
the allegations,” (ECF No. 9 at 4), but does not attach any document or record or specify what
they may contain. Plaintiff does not otherwise address the lack of factual basis for her claims.
(See ECF No. 9.)
Because Plaintiff does not make any specific objections to the proposed findings and
recommendations in the Magistrate Judge’s report, the Court reviews the Report and
Recommendation for clear error. See Howard, 932 F.2d at 509. On clear-error review, the Court
hereby ADOPTS the Report and Recommendation (ECF No. 8) and DISMISSES WITHOUT
PREJUDICE Plaintiff’s Complaint for failure to state a claim.
The Court also notes that the failure to obtain a right-to-sue letter from the EEOC also
merits dismissal without prejudice of Plaintiff’s Title VII claim. See Rivers v. Barberton Board

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of Education, 143 F.3d 1029, 1031 (6th Cir. 1998) (“Receipt of a right-to-sue letter from the
EEOC is a condition precedent to filing a Title VII action.”); Dixon v. Ohio Department of
Rehabilitation & Correction, 181 F.3d 100 (6th Cir. 1999) (holding that the failure to obtain a
right-to-sue letter merits dismissal without prejudice).
IV.

CONCLUSION
Accordingly, Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE sua sponte

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court declines to adopt the portion of the Report
and Recommendation granting Plaintiff leave to amend the Complaint within 15 days of the
entry of the instant order. The Court declines to set a deadline for Plaintiff to file a new
Complaint in order to allow Plaintiff time to obtain a right-to-sue letter from the EEOC and
adequately plead her claims.
IT IS SO ORDERED, this 8th day of August, 2017.

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

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