United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION FOR DISMISSAL
T. Fowlkes, Jr. United States District Judge.
the Court is the Report and Recommendation entered by the
Magistrate Judge in the above-styled case. (ECF No. 7.) On
August 10, 2017, Plaintiff Gwendolyn Williams's filed her
pro se Complaint alleging violations of the Age
Discrimination in Employment Act of 1967
(“ADEA”), accompanied by her Motion seeking leave
to proceed in forma pauperis. (ECF Nos. 1 & 2.)
Pursuant to Administrative Order 2013-15, this case was
assigned to the Magistrate Judge for management of all
pretrial matters. On September 22, 2017, the Magistrate Judge
issued a Report and Recommendation suggesting that the
information in Plaintiff's in forma
pauperis (“IFP”) affidavit
satisfies her burden of demonstrating that she is unable to
pay the civil filing fee but that this Court should dismiss
Plaintiff's Complaint for failure to state a claim on
which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). (ECF No. 7, 2-5.) The Magistrate Judge
also recommended that this Court, pursuant to 28 U.S.C.
§ 1915(a)(3), certify that an IFP appeal by
Plaintiff would not be taken in good faith and, thus, may not
be taken. (Id. at 6.) Plaintiff did not file any
Objections to the Report and Recommendation, and the deadline
for doing so has passed.
FINDINGS OF FACT
in her Report and Recommendation, is the Magistrate
Judge's determination that proposed findings of fact are
not necessary in this case. Compare Fed. R. Civ. P.
72(b)(1), with ECF No. 7. Rather, the Magistrate
Judge issued her Report and Recommendation based on
Plaintiff's Motion seeking leave to proceed IFP,
Plaintiff's Complaint, and the applicable law. The Court,
for purposes of its analysis, similarly incorporates the
to 28 U.S.C. § 636(b), 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). The district court
may accept, reject, or modify the proposed findings or
recommendations of the Magistrate Judge. 28 U.S.C. §
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. The district
court is not required to review-under a de novo or
any other standard-those aspects of the report and
recommendation to which no objection is made. 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.
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 IFP until the complaint has
been screened under 28 U.S.C. § 1915(e)(2)(B). LR
4.1(b). Courts must screen IFP 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).
To state a claim, courts hold as follows:
[A] complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief. A
complaint must have enough facts to state a claim to relief
that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Davidson v. Fed. Bureau of Prisons, No. 17-5429,
2017 U.S. App. LEXIS 24272, at *6 (6th Cir. Nov. 29, 2017).
Courts must remain conscious that pro se pleadings,
though not free from basic pleading requirements, are
“held ‘to less stringent standards than formal
pleadings drafted by lawyers, ' and should therefore be
liberally construed.” Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011) (quoting Martin v.
Overton, 391 F.3d 710, 712 (6th Cir. 2004)).
de novo review of the Magistrate Judge's Report
and Recommendation, this Court agrees with the Magistrate
Judge's recommendation to dismiss Plaintiff's ADEA
claim for failure to state a claim upon which relief may be
granted, pursuant to 28 U.S.C. § 1915(e)(2)(ii), because
Plaintiff did not allege that she was qualified for her
position or that a substantially younger employee replaced
her. (ECF No. 7, 5.) The ADEA prohibits an employer from
failing or refusing to hire, discharging, or discriminating
“against any individual with respect to h[er]
compensation, terms, conditions, or privileges of employment,
because of such individual's age.” 29 U.S.C. §
623(a)(1). To establish a prima facie case of age
discrimination under the ADEA a plaintiff normally must show
that she is a member of a protected class, that she suffered
an adverse employment action, that she was qualified for the
job, and that was replaced by a substantially younger
individual. O'Conner v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996); Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008).
At the pleading stage, an employment discrimination complaint
is not required to allege facts to support a prima facie case
of discrimination, but it must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Swierkiewicz v. Sorema,
534 U.S. 506, 508 (2002) (quoting Fed. Rule Civ. Proc.
Plaintiff fails to state a claim for age discrimination upon
which relief may be granted. Plaintiff has not alleged that
she was qualified for her position or that a substantially
younger employee replaced her. Moreover, Plaintiff has not
alleged any facts from which the Court can infer that she was
discriminated against because of her age, other than the fact
that she was over forty years old when the alleged
discrimination took place. Gillespie v. Magee, No.
17-2726-JPM-dkv, 2017 U.S. Dist. LEXIS 180332, at *8 (W.D.
Tenn. Oct. 11, 2017), adopted by 2017 U.S. Dist.
LEXIS 180332 (W.D. Tenn., Oct. 11, 2017). Thus, this Court