# Tutwiler v. Memphis Light Gas and Water

> District Court, W.D. Tennessee · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10440664

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10440664. Public record. Not legal advice.