The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
KAREN CHRISTIAN, )
)
Plaintiff, )
v. ) No. 2:19-cv-02365-JTF-cgc
)
DELTA AIRLINES, HORSESHOE )
CASINO and CAESARS )
ENTERTAINMENT, )
)
Defendants. )
_____________________________________________________________________________
ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AND DISMISSING CASE
_ _____________________________________________________________________________
Before the Court is Plaintiff Karen Christian’s pro se Complaint against Defendants Delta
Airlines, Horseshoe Casino and Caesars Entertainment (“Defendants”) filed on June 4, 2019.
(ECF No. 1.) Plaintiff also filed a Motion seeking leave to proceed in forma pauperis, (ECF No.
2), which was granted on July 31, 2019. (ECF No. 7.) The Magistrate Judge, upon screening
Plaintiff’s Complaint, entered a Report and Recommendation suggesting dismissal of the
Complaint for failure to state a claim. (ECF No. 7.) No objections were filed by Plaintiff. For the
reasons below, the Court ADOPTS the Magistrate Judge’s Report and Recommendation to
DISMISS Plaintiff’s Complaint.
FACTUAL HISTORY
In the Report and Recommendation, the Magistrate Judge provides, and this Court adopts
and incorporates, proposed findings of fact in this case. (ECF No. 7, 2.)
LEGAL STANDARD
Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts
by permitting the assignment of certain district court duties to magistrates.” United States v.
Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear
and determine any pretrial matter pending before the Court, except various dispositive motions.
28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a
recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.
72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who
disagrees with a magistrate’s proposed findings and recommendation may file written objections
to the report and recommendation. Fed. R. Civ. P. 72(b)(2).
The district court reviews a magistrate judge’s proposed findings and recommendation.
The standard of review that is applied depends on the nature of the matter considered by the
magistrate judge. See Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003) (citations omitted)
(“A district court normally applies a ‘clearly erroneous or contrary to law’ standard of review for
nondispositive preliminary measures. A district court must review dispositive motions under the
de novo standard.”). Upon review of the evidence, the district court may accept, reject, or modify
the proposed findings or recommendations of the magistrate judge. Brown v. Board of Educ., 47
F. Supp. 3d 665, 674 (W.D. Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also
receive further evidence or recommit the matter to the [m]agistrate [j]udge with instructions.”
Moses v. Gardner, No. 2:14-cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn.
Mar. 11, 2015). “Within 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.
28 U.S.C. § 1915(e)(2) Screening
Pursuant to Local Rule 4.1, service will not issue in a pro se case where the pro se plaintiff
has been granted leave to proceed in forma pauperis until the complaint has been screened under
28 U.S.C. § 1915(e)(2)(B). LR 4.1(b). Specifically, courts are required to screen in forma
pauperis complaints and dismiss any complaint, or portion thereof, if the allegation of poverty is
untrue or if the action (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be
granted, or (iii) seeks monetary relief against a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2).
Standard of Review for Failure to State a Claim
In assessing whether Plaintiff’s Complaint states a claim upon which relief may be granted,
the standards under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as stated in Ashcroft v.
Iqbal, 556 U.S. 662, 678–79 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57
(2007), are applied. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). “Accepting all well-pleaded
allegations in the complaint as true, the Court ‘consider[s] the factual allegations in [the] complaint
to determine if they plausibly suggest an entitlement to relief.’” Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011) (alteration in original) (quoting Iqbal, 556 U.S. at 681). Additionally, although
not free from basic pleading requirements, pro se pleadings are “held ‘to less stringent standards
than formal pleadings drafted by lawyers,’ and should therefore be liberally construed.” Curtin,
631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Even so, pro so
litigants must adhere to the Federal Rules of Civil Procedure, and the Court cannot create a claim
that has not been spelled out in a pleading. Falkner v. United States, No. 11-2982-STA-cgc, 2012
U.S. Dist. LEXIS 93372, at *16 (W.D. Tenn. July 6, 2012).
ANALYSIS
The Court agrees with and adopts the Magistrate Judge’s recommendation that Plaintiff’s
Complaint be dismissed for failure to state a claim upon which relief can be granted. Plaintiff’s
Complaint fails to state a claim upon which relief can be granted because Plaintiff did not file the
Complaint within ninety (90) days of receiving her Right to Sue Letter from the EEOC. Title VII
requires a Plaintiff to file a claim within ninety (90) days of receiving a Right to Sue Letter. 42
U.S.C. § 2000e-5(f)(1). “[T]he ninety-day filing requirement . . . is not a jurisdictional requirement
but, instead, is a timing requirement similar to a statute of limitations, subject to waiver, estoppel
and equitable tolling.” Truitt v. County of Wayne, 148 F.3d 644, 646–47 (6th Cir. 1998) (emphasis
omitted). Here, Plaintiff asserts in her Complaint that she received her Right to Sue Letter from
the EEOC in January of 2013. (ECF No. 1, 5.) Plaintiff also asserts she originally filed a charge
with the EEOC in October of 2013, (ECF No. 1, 5), and her best recollection is that the alleged
discriminatory acts occurred in May of 2018. (ECF No. 1, 3.) Plaintiff’s timeline is inconsistent,
and it does not appear to the Court that, relying upon the stated dates, Plaintiff filed this lawsuit
within the requisite ninety-day period of receiving a Right to Sue letter. Accordingly, dismissal
for failure to state a claim upon which relief can be granted is appropriate.
The Court also agrees with the Magistrate Judge’s recommendation that the Court certify,
pursuant to 28 U.S.C. § 1915(a)(3), that Plaintiff may not appeal the above determination in forma
pauperis because such an appeal would not be taken in good faith. (ECF 7.) Plaintiff did not
object to the Report and Recommendation. Under 28 U.S.C. § 1915(a)(3), “An appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28
U.S.C. § 1915(a)(3). “The good faith standard is an objective one” and considers whether the
litigant seeks appellate review of any nonfrivolous issue. Beard v. Memphis, TN Crim. & Judicial
Sys., No. 17-2184-STA-cgc, 2017 U.S. Dist. LEXIS 100175, at *8 (W.D. Tenn. June 16, 2017).
Additionally, courts hold that it would be inconsistent for a district court to determine that a
complaint should be dismissed prior to service on the defendant, while simultaneously finding that
the claim has sufficient merit to support an appeal in forma pauperis. Id. at *9. The same
considerations that favor dismissal of Plaintiff’s Complaint also compel the conclusion that an
appeal here would be frivolous and, thus, not taken in good faith. See id. at *8. Accordingly, this
Court certifies, pursuant to 28 U.S.C. § 1915(a), that an in forma pauperis appeal in this case by
Plaintiff would not be taken in good faith, and thus, may not be taken.
CONCLUSION
Upon a de novo review, the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation to DISMISS Plaintiff’s claim with prejudice for failure to comply with the
ninety-day requirement as codified in 42 U.S.C. § 2000e-5(f)(1). The Court CERTIFIES that
Plaintiff may not appeal the determination herein in forma pauperis.
IT IS SO ORDERED this 25th day of November 2019.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE