Ushery v. Subway
Filing
11
REPORT AND RECOMMENDATIONS recommending that Plaintiff's case be DISMISSED for want of prosecution and for failure to obey an Order of the Court, or in the alternative, that Defendant's motion to dismiss 8 be GRANTED and this case CLOSED. Objections to R&R due by 10/21/2013. Signed by Magistrate Judge Stephanie K. Bowman on 10/3/2013. (km1) (Additional attachment(s) added on 10/3/2013: # 1 Certified Mail Receipt) (km1).
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PRINCELLA USHERY,
Case No. 1:13-cv-265
Plaintiff,
Weber, J.
Bowman, M.J.
v.
SUBWAY,
Defendant.
REPORT AND RECOMMENDATION
The Court previously issued an order to Plaintiff to show cause for her failure to
timely respond to Defendant’s motion to dismiss. (Doc. 9) The Order further advised
Plaintiff that her complaint would be dismissed if she failed to timely comply with the Show
Cause Order. Id. To date, Plaintiff has filed no response. For the reasons that follow, the
undersigned recommends that plaintiff's complaint be dismissed for lack of prosecution or,
in the alternative, that Defendant’s motion to dismiss be granted pursuant to Fed.R.Civ.P.
12(b)(6) because Plaintiff's complaint fails to state a cognizable claim for relief.
The record reflects that Defendant filed its motion to dismiss on July 29, 2013; the
accompanying Certificate of Service identified that the motion was served upon plaintiff via
regular U.S. mail. (Doc. 8). Plaintiff failed to file a response to the motion to dismiss and,
on September 5, 2013 , the undersigned entered an order for Plaintiff to show cause why
the motion to dismiss should not be construed as unopposed and granted for the reasons
stated in the motion. (Doc. 9). To date, Plaintiff has not filed a response to the Show
Cause Order or to Defendant’s motion to dismiss.
Plaintiff's failure to prosecute this matter and to obey an Order of the Court warrants
dismissal of this case pursuant to Fed.R.Civ.P. 41(b). See Jourdan v. Jabe, 951 F.2d 108,
109–10 (6th Cir.1991). District courts have the power to sua sponte dismiss civil actions
for want of prosecution to “manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R.R., 370 U.S. 626, 630–31, 82 S.Ct.
1386, 8 L.Ed.2d 734 (1962). See also Jourdan, 951 F.2d at 109. Though plaintiff is
proceeding pro se, as stated by the Supreme Court, “we have never suggested that
procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes
by those who proceed without counsel.” McNeil v. United States, 508 U.S. 106, 113
(1993). Accordingly, the undersigned recommends that Plaintiff's case be dismissed for
want of prosecution and for failure to obey a Court Order.
In the alternative, the undersigned finds that dismissal of Plaintiff’s complaint is also
warrant under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff’s complaint
appears to assert claims for employment discrimination in violation of Title VII against
Subway, her former employer. Plaintiff’s complaint, however, fails to identify the type of
discrimination she as allegedly subjected to, the time-frame for such actions, and fails to
alleged any specific adverse action taken by Subway. In light of the foregoing, Plaintiff’s
complaint fails to state a plausible claim for discrimination claim under the standard recently
outlined by the United States Supreme Court. Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) (a complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state
a claim upon which relief can be granted if it does not plead “enough facts to state a claim
to relief that is plausible on its face.”). Thus, to survive a motion to dismiss, the factual
allegations in the complaint “must be enough to raise a right to relief above the speculative
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level.” Id. at 1965. Plaintiff’s complaint fails to do so.
Furthermore, federal courts do not have subject matter jurisdiction to hear Title VII
claims if the claims were not included in the EEOC charge or the claims could not
reasonably have been expected to grow out of the EEOC charge. Strouss v. Mich. Dep't
of Corr., 250 F.3d 336, 342 (6th Cir.2001). Here, Plaintiff failed to attach a copy of the
charge she filed with the EEOC and/or the Ohio Civil Rights Commission. As such, the
undersigned cannot determine what type of discrimination was alleged in the charge and
if she has properly exhausted her administrative remedies.
A failure to exhaust
administrative remedies is an appropriate basis for the dismissal of a Title VII or ADA claim.
Williams v. Northwest Airlines, 53 F. App'x 350, 351 (6th Cir.2002).
Accordingly, the undersigned RECOMMENDS that Plaintiff's case be DISMISSED
for want of prosecution and for failure to obey an Order of the Court or, alternatively,
Defendant’s motion to dismiss (Doc. 8) be GRANTED; and this case be CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PRINCELLA USHERY,
Case No. 1:13-cv-265
Plaintiff,
Weber, J.
Bowman, M.J.
v.
SUBWAY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within 14 DAYS of the filing date of
this R&R. That period may be extended further by the Court on timely motion by either side
for an extension of time. All objections shall specify the portion(s) of the R&R objected to,
and shall be accompanied by a memorandum of law in support of the objections. A party
shall respond to an opponent’s objections within 14 DAYS after being served with a copy
of those objections. Failure to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).
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