Baston v. Parkland Hospital

Filing 11

ORDER WITHDRAWING 9 FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND ISSUING SECOND QUESTIONNAIRE TO PLAINTIFF. (Ordered by Magistrate Judge David L. Horan on 10/10/2017) (ams)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BRANDON BASTON,
Plaintiff,
V.
PARKLAND HOSPITAL,
Defendant.

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No. 3:17-cv-2259-K-BN

ORDER WITHDRAWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION AND ISSUING SECOND
QUESTIONNAIRE TO PLAINTIFF
This pro se employment-discrimination action has been referred to the
undersigned United States magistrate judge for pretrial management under 28 U.S.C.
§ 636(b) and a standing order of reference from United States District Judge Ed
Kinkeade.
On September 29, 2017, the undersigned issued findings of fact, conclusions of
law, and a recommendation that the Court should dismiss this action without prejudice
as time-barred but that the Court should allow Plaintiff Brandon Baston time to
amend his complaint to assert his right to equitable tolling (the “FCR”). See Dkt. No.
9. That recommendation was based on Baston’s verified responses to the Court’s
questionnaire in which he affirmed that he filed his charge of discrimination on
September 21, 2016, outside the 300-day window for presenting claims of
discrimination (that last took place on September 30, 2015) to the appropriate state
agency. See Dkt. No. 8 at 5 & 10; see also id. at 14 (unsigned and undated charge of
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discrimination attached to the verified questionnaire responses). As explained in the
FCR, verified responses to interrogatories issued to “[t]o aid in the determination of
whether an IFP complaint is frivolous ... become part of the plaintiff’s pleadings.” Talib
v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998) (citing Eason v. Holt, 73 F.3d 600, 602 (5th
Cir. 1996)).
Baston has filed an objection to the FCR, asserting that he filed his charge on
June 20, 2016 but also including a signed and dated discrimination charge reflecting
a date of June 9, 2016 – either date would fall within the aforementioned 300-day
window. See Dkt. No. 10 at 1 & 3. A plaintiff “cannot amend his complaint in an
objection to a Magistrate Judge’s recommendation,” Brown v. Potter, No. 2:09-CV-613WKW[WO], 2009 WL 4667043, at *1 (M.D. Ala. Dec. 2, 2009) (citing Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004) ( “A plaintiff may not amend her
complaint through argument in a brief opposing summary judgment.”)).
But, because Baston is proceeding pro se, the undersigned WITHDRAWS the
FCR [Dkt. No. 9] and issues the following questionnaire.
Baston shall answer the following questions in the space provided for answers
and may attach additional pages only if necessary. He shall verify the answers to these
questions under penalty of perjury on the signature line at the conclusion of these
questions and return the completed form to the undersigned United States magistrate
judge no later than October 31, 2017. Failure to provide answers to all questions may
result in the dismissal of the complaint for failure to prosecute under Federal Rule of
Civil Procedure 41(b).
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SO ORDERED.
DATED: October 10, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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QUESTION NO. 1: When did you submit your claims to the Equal Employment
Opportunity Commission (“EEOC”) or the applicable state agency?
ANSWER:

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QUESTION NO. 2: Explain to the Court why you previously provided two
different dates as the date on which your submitted your claim to the EEOC or the
applicable state agency.
ANSWER:

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VERIFICATION
STATE OF TEXAS
COUNTY OF ___________________

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No. 3:17-cv-2259-K-BN

I understand that a false statement or answer to any interrogatories in this
cause of action will subject me to penalties for perjury. I declare (or certify, verify or
state) under penalty of perjury that the foregoing answers are true and correct (28
U.S.C. § 1746).

SIGNED on this ________ day of _______________, 2017.

____________________________________
Brandon Baston, Plaintiff

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