The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
EZELL ARMSTRONG, )
)
Plaintiff, )
)
v. ) Case No. 2:19-cv-02592-JTF-cgc
)
FEDEX EXPRESS, )
)
Defendant. )
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
DENYING PLAINTIFF’S OBJECTIONS, AND DISMISSING CASE
Before the Court is Plaintiff Ezell Armstrong’s pro se complaint against Defendant FedEx
Express that was filed on September 4, 2019. (ECF No. 1.) Plaintiff also filed a Motion seeking
leave to proceed in forma pauperis (ECF No. 2), which was granted on September 25, 2019. (ECF
No. 7.) After screening Plaintiff’s complaint under 28 U.S.C. § 1915(e)(2), the Magistrate Judge
entered a Report and Recommendation (“R. & R.”) on June 1, 2020, advising the Court to dismiss
the complaint for failing to state a claim upon which relief could be granted. (ECF No. 8.) Plaintiff
filed objections on June 19, 2020. (ECF No. 9.) For the following reasons, the Court ADOPTS the
R. & R., DENIES Plaintiff’s objections, and DISMISSES Plaintiff’s complaint with prejudice.
FACTUAL HISTORY
In the R. & R., the Magistrate Judge provides, and this Court adopts and incorporates,
proposed findings of fact in this case. (ECF No. 8, 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 standard of review that is applied by the district court depends on the nature of the
matter considered by the magistrate judge. See Baker, 67 F. App’x at 310 (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.”). However, “[w]hen 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. The district court is not required to review, and
indeed “should adopt[,] the findings and rulings of the Magistrate Judge to which no specific
objection is filed.” Brown v. Bd. of Educ. of Shelby Cty. Sch., 47 F. Supp. 3d 665, 674 (W.D.
Tenn. 2014) (citing Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 472, 88 L.Ed.2d 435 (1985)).
This is consistent with the purposes of 28 U.S.C. § 636, particularly to preserve judicial economy
and protect against the “duplication of time and effort” caused when “both the magistrate and the
district court perform identical tasks.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,
509 (6th Cir. 1991).
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
Plaintiff alleges that Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621
(the “ADEA”). (ECF No. 1.) After a thorough analysis of the complaint, the Magistrate Judge
advised that Plaintiff’s claims should be dismissed because they do not contain a “short and plain
statement” showing that he is entitled to relief. (ECF No. 8, 3-4) (quoting Fed. R. Civ. P. 8(a)).
Specifically, the R. & R. found that Plaintiff failed to allege facts that satisfy the required elements
of his Title VII and ADEA claims. See (Id. at 3) (“Plaintiff [] does not allege any facts which allow
this Court to infer that he was discriminated against because of his race. Plaintiff makes no factual
allegations about any similarly situated comparators or that he was replaced by someone outside
of his protected class.”). See also (Id. at 4) (“Plaintiff [] makes no factual allegations which allow
this Court to infer that Plaintiff was discriminated against on the basis of his age.”).
Plaintiff’s objections elaborate on the facts alleged in the complaint but still do not remedy
the deficiencies identified in the R. & R. Generally, when the court is tasked to consider whether
a complaint should survive a Rule 12(b)(6) dismissal, it must focus only on the allegations in the
pleadings and cannot consider additional evidence brought forth in the plaintiff’s response. Waskul
v. Washtenaw Cty. Cmty. Mental Health, 979 F.3d 426 (6th Cir. 2020). Any new facts must be
alleged in an amended complaint. Id. However, even if the Court were to construe Plaintiff’s
objections as a motion to amend his complaint, the new facts he alleges are still insufficient to
survive a Rule 12(b)(6) dismissal. For example, Plaintiff reiterates that he is black and was “hit by
a [c]aucasian female,” but does not allege that this was done because of his race or that he was
ultimately replaced by someone outside his protected class. (ECF No. 9, 2.) Similarly, Plaintiff
describes that he was “singled out” because he was “too slow,” that he “encountered harassment,”
and was generally treated “unjustly” and spoken to “disrespectfully.” (Id. at 1-2.) While that may
be true, Plaintiff’s complaint and subsequently filed objections still only allege a single reference
to age—the “incident” when he was made to unload boxes while his “younger” colleagues “stood
near.” (ECF Nos. 1 & 8, 1.) As the R. & R. found, these facts are insufficient to establish Plaintiff’s
age discrimination claim. (ECF No. 8, 4.) Accordingly, the Magistrate Judge’s recommendation
to dismiss the complaint should be adopted.
The R. & R. also advises that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that
Plaintiff may not appeal in forma pauperis because such an appeal would not be taken in good
faith. (ECF No. 8, 4-5.) Plaintiff did not object to this 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 *8. Accordingly, this Court certifies, pursuant to 28 U.S.C. § 1915(a), that an in forma
pauperis appeal by Plaintiff in this case would not be taken in good faith, and thus, may not be
taken.
CONCLUSION
Upon de novo review the Court hereby ADOPTS the Magistrate Judge’s Report and
Recommendation, DENIES Plaintiff’s objections, and DISMISSES Plaintiff’s claims with
prejudice.
IT IS SO ORDERED this 11th day of December 2020.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
United States District Judge