Filed: Apr. 28, 2017
Latest Update: Apr. 28, 2017
Summary: REPORT AND RECOMMENDATION DAVID A. BAKER , Magistrate Judge . On October 14, 2014, Plaintiff Edward Thomas, pro se, filed a civil complaint in this court against Defendant City of Montgomery, alleging claims of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Equal Protection Clause and the Due Process Clause of the United States Constitution under 42 U.S.C. 1981. On March 9, 2017, Defendant filed a mot
Summary: REPORT AND RECOMMENDATION DAVID A. BAKER , Magistrate Judge . On October 14, 2014, Plaintiff Edward Thomas, pro se, filed a civil complaint in this court against Defendant City of Montgomery, alleging claims of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and the Equal Protection Clause and the Due Process Clause of the United States Constitution under 42 U.S.C. 1981. On March 9, 2017, Defendant filed a moti..
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REPORT AND RECOMMENDATION
DAVID A. BAKER, Magistrate Judge.
On October 14, 2014, Plaintiff Edward Thomas, pro se, filed a civil complaint in this court against Defendant City of Montgomery, alleging claims of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Equal Protection Clause and the Due Process Clause of the United States Constitution under 42 U.S.C. § 1981. On March 9, 2017, Defendant filed a motion to dismiss the Amended Complaint for failure to state a claim. (Doc. 53). On March 31, 2017, Plaintiff filed a "Response to Motion to Dismiss Amended Complaint" in which he stated that he "voluntarily dismisses his amended complaint (doc. no. 52)." (Doc. 55 at 1). For the reasons stated herein, it is the RECOMMENDATION of the undersigned that Plaintiff's motion to voluntarily dismiss his amended complaint be GRANTED and the case be DISMISSED.
I. JURISDICTION
Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Plaintiff's federal causes of action. The parties do not contest personal jurisdiction or venue, and the court finds sufficient information of record to support both. See 28 U.S.C. § 1391. On January 5, 2017, the above-styled matter was referred to the undersigned for review by United States District Myron H. Thompson. (Doc. 48); see also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th Cir. 1990).
II. BACKGROUND AND MATERIAL FACTS1
Plaintiff is an African-American employee of Defendant as a "Foreman 1" in the Maintenance Department. (Doc. 52 at 6, ¶ 10). Plaintiff generally alleges that he was subjected to retaliation, discriminatory work assignments, denied training, and physically assaulted by a coworker on the job because of his race. (Doc. 52 at ¶¶ 1-6). The Amended Complaint advances a number of claims including assault, deprivation of due process, racial discrimination, hostile work environment, and disparate treatment under § 1981, § 1983, and Title VII. (Doc. 52 at ¶¶ 7-11).
On March 9, 2017, Defendant filed a motion to dismiss the Amended Complaint for failure to state a claim, specifically arguing that the Defendant was not named as a party in the Amended Complaint2 (Doc. 52 at ¶¶ 1-4; Doc. 53 at ¶ 2) and that Plaintiff's claims are barred by the statute of limitations (Doc. 53 at ¶¶ 3-5).
Plaintiff filed a response to Defendant's motion stating, in its entirety: "COMES NOW, the Plaintiff, Edward Thomas, pro se and in accordance with the F. R. Civ. P., and voluntarily dismisses his amended complaint (doc. n. 52)." (Doc. 55). This court entered an order admonishing Plaintiff that "such a motion to dismiss the amended complaint, were the court to grant it, would dismiss the case entirely and this action would be over" and ordered Plaintiff to "file a further response on or before April 18, 2017, to clarify his intentions as to his amended complaint." (Doc. 56). Plaintiff has not filed any further response to this court's order.
III. CONCLUSION AND RECOMMENDATION
Accordingly, for the reasons as stated, it is the RECOMMENDATION of the Magistrate Judge that Plaintiff's motion to voluntarily dismiss his Amended Complaint (Doc. 55) be GRANTED pursuant to Rule 41(a)(2), Fed. R. Civ. P., that the case be DISMISSED, and that Defendant's motion to dismiss be found MOOT (Doc. 53).
It is ORDERED that the parties shall file any objections to the said Recommendation pursuant to and within the time provided by Rule 72(b)(2), Fed. R. Civ. P. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982).
DONE and ORDERED.
