Tutwiler v. Memphis Light Gas and Water

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

RAMON TUTWILER, )

)

Plaintiff, )

)

v. ) Case No. 2:21-cv-02011-JTF-tmp

)

MEMPHIS LIGHT GAS AND )

WATER, et al., )

)

Defendants. )

ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING

PLAINTIFF’S COMPLAINT, AND GRANTING LEAVE TO AMEND

Before the Court is Plaintiff’s pro se Complaint, filed on January 4, 2021. (ECF No. 1.)

Upon screening the Complaint, the Chief Magistrate Judge issued a Report and Recommendation

to dismiss Plaintiff’s pro se Complaint on January 27, 2021. (ECF No. 8.) On February 4, 2021,

Plaintiff filed an “attachment” to his pro se Complaint, which the Court construes as Objections.1

(ECF No. 9.) As explained below, the Court ADOPTS the Chief Magistrate Judge’s Report and

Recommendation. Plaintiff’s Complaint is DISMISSED. However, Plaintiff is granted leave to

amend his complaint as provided in this Order.

FINDINGS OF FACT

In the Report and Recommendation, the Chief Magistrate Judge provides, and this Court

adopts and incorporates, the proposed findings of fact in this case. (ECF No. 8, 1–2.) Plaintiff’s

Objections add allegations that were not provided in Plaintiff’s pro se Complaint, as the Complaint

1 While this document is labeled as an “attachment,” to the Complaint, it is not filed with the docket entry associated

with Plaintiff’s Complaint and was filed a month after the Complaint. (See ECF Nos. 1 & 9.)

contained no facts whatsoever. (ECF No. 1.) Viewing these construed objections, Plaintiff is an

MLGW employee who sought a promotion. (ECF No. 9, 1.) Specifically, Plaintiff sought to be

placed in an “Instrument Operator” Position. (Id.) Plaintiff states that he followed the “procedures

and protocols to qualify” for the position. (Id.) According to Plaintiff, selection for the Instrument

Operator Position is based on “Line of Progression and seniority.” (Id.) Pursuant to the line of

progression, Plaintiff states that he was “next in line for the Instrument Operator position if the

current position holder (Steve Gray) did not successfully pass the test[.]” (Id.) Plaintiff indicates

that, in the past, multiple individuals were permitted to test contemporaneously. (Id.) However,

in this instance, Gray tested first, but was unsuccessful. (Id.) From there, Defendant Janes

allegedly instructed Helen Townes to change the testing result for Gray from unsuccessful to

successful, which Townes did. (Id.) Plaintiff has attached a written reprimand corroborating this

changing of test results. (Id. at 2.) Overall, Plaintiff avers that “racial discrimination was used”

to prevent him from getting the Instrument Operator position over Gray. (Id. at 1.)

These are the extent of Plaintiff’s factual allegations. As explained below, these averments

may not be considered in assessing the sufficiency of Plaintiff’s Complaint. Moreover, even if

they were considered, they would be insufficient to survive dismissal. Notwithstanding, the Court

will grant Plaintiff leave to amend his Complaint.

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). Regarding those excepted dispositive motions, magistrate judges may

still hear and submit to the district court proposed findings of fact and recommendations for

disposition. 28 U.S.C. § 636(b)(1)(B). 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).

Upon review, the district court may accept, reject, or modify the proposed findings or

recommendations of the magistrate judge. Brown v. Bd. 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 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).

Usually, the district court must review dispositive motions under the de novo standard.

However, a district court is not required to review “a magistrate’s factual or legal conclusions,

under a de novo or any other standard, when neither party objects to those findings.” Thomas v.

Arn, 474 U.S. 140, 150 (1985). A district judge should adopt the findings and rulings of the

magistrate judge to which no specific objection is filed. Brown, 47 F. Supp. 3d at 674.

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 se

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 Chief Magistrate Judge determined that because the Complaint lacks factual

allegations, it should be dismissed. (ECF No. 8, 5.) Additionally, the Report and Recommendation

noted that Plaintiff brings Title VII claims against the three individual defendants—Janes,

Ledbury, and Young. (Id.) The Report and Recommendation then determined that the claims

asserted against these individual defendants must be dismissed because the Complaint alleges no

facts that could subject these defendants to liability. (Id. at 5–6.) Specifically, the Report and

Recommendation found that individual employees and supervisors cannot be held personally liable

under Title VII. (Id. at 5) (quoting Colston v. Cleveland Pub. Library, 522 F. App’x 332, 336 (6th

Cir. 2013)). Plaintiff’s construed objections do not address this conclusion in the Report and

Recommendation. Accordingly, as to Defendants Janes, Ledbury, and Young, Plaintiff has failed

to state a claim upon which relief may be granted. Plaintiff’s Title VII claims against Defendants

Janes, Ledbury, and Young are DISMISSED with prejudice.

The Court notes that it does not consider Plaintiff’s construed objections in assessing the

sufficiency of the Complaint. See Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (“Assessment

of the facial sufficiency of the complaint must ordinarily be undertaken without resort to matters

outside the pleadings.” (citing Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir.

2010))); Kinder v. Nw. Bank, No. 1:10-cv-405, 2012 U.S. Dist. LEXIS 96847, at *2 (W.D. Mich.

July 13, 2012) (“Although [28 U.S.C. § 636] requires this Court to review objections de novo, it

does not allow parties to raise, in their objections, new arguments or issues that were not presented

to the magistrate judge.”) (citations omitted).

Moreover, even if the Court were to consider the allegations provided in Plaintiff’s

construed objections in evaluating the Complaint, they are insufficient to withstand dismissal.

“[T]he Supreme Court established a ‘plausibility’ standard in Twombly and Iqbal for assessing

whether a complaint’s factual allegations support its legal conclusions, and that standard applies

to causation in discrimination claims.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012)

(citations omitted). While Plaintiff’s Complaint is not required to provide “detailed factual

allegations,” the Complaint should present enough “factual content” from which the Court could

reasonably infer that MLGW discriminated against Plaintiff “with respect to [his] compensation,

terms, conditions, or privileges of employment, because of” his race or color. Id. (citations

omitted). Plaintiff’s construed objections do not allege the race or color of himself or of anyone

identified. Similarly, Plaintiff makes the conclusory assertion that racial discrimination is

responsible for the events alleged in his construed objections. (ECF No. 9, 1.) Legal conclusions

in a complaint “are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Plaintiff’s

construed objections do not set forth enough factual content for the Court to reasonably infer that

discrimination was the reason for the alleged actions taken with respect the Instrument Operator

position. See id. (“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

pleader is entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2))).

Because Plaintiff’s Complaint lacks any factual allegations, and because Plaintiff’s

construed objections, even if properly considered as part of the Complaint, lack the factual content

necessary to state a claim, Plaintiff’s Complaint is DISMISSED. However, with the exception of

the claims against Defendants Janes, Ledbury, and Young, this dismissal is without prejudice.

Although Plaintiff has not requested leave to amend his Complaint, the Court will grant Plaintiff

leave to amend. See Gordon v. England, 354 F. App’x 975, 981–82 (6th Cir. 2009); see also

Brown v. Matauszak, 415 F. App’x 608, 614–16 (6th Cir. 2011). Accordingly, Plaintiff is

permitted to file an amended complaint as provided below.

CONCLUSION

Upon de novo review, the Court hereby ADOPTS the Chief Magistrate Judge’s Report and

Recommendation with modification. Plaintiff’s claims against Defendants Janes, Young, and

Ledbury are DISMISSED with prejudice. Plaintiff’s Title VII claim against Defendant Memphis

Light, Gas and Water is DISMISSED without prejudice. Plaintiff is granted leave to amend his

complaint as to his Title VII claim against Memphis Light, Gas and Water. Any amended

complaint must be filed within thirty (30) days of the entry of this order. If no amended complaint

is timely filed, the Court will dismiss this case in its entirety with prejudice and enter judgment

accordingly.

IT IS SO ORDERED this 26th day of August, 2021.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE