United States District Court, D. South Carolina, Greenville Division
C. COGGINS, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss. ECF No. 30. Plaintiff filed a letter opposition, and
Defendant filed a Reply. ECF Nos. 33, 34. In accordance with
28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2),
(D.S.C.), this matter was referred to United States
Magistrate Judge Bristow Marchant for pre-trial proceedings
and a Report and Recommendation (''Report'').
On June 26, 2018, the Magistrate Judge issued a Report
recommending that the Motion be granted in part and denied in
part. ECF No. 35. Defendant filed objections to the Report.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. See Mathews v. Weber, 423 U.S. 261 (1976).
The Court is charged with making a de novo determination of
any portion of the Report of the Magistrate Judge to which a
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate
Judge with instructions. See 28 U.S.C. §
Court will review the Report only for clear error in the
absence of an objection. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (stating that ''in the absence of timely filed
objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.'' (citation omitted)).
Magistrate Judge recommends granting in part and denying in
part Defendant's Motion to Dismiss. Significantly, the
Magistrate Judge finds that, while Plaintiff's Complaint
fails to state a plausible cause of action with respect to
discrimination and retaliation, Plaintiff attached his Charge
of Discrimination (“Charge”) to his Complaint
which contains more factual allegations. Accordingly, the
Magistrate Judge finds that, reading Plaintiff's Complain
in conjunction with his Charge, Plaintiff has alleged
sufficient facts to survive the Motion to Dismiss with
respect to Plaintiff's discrimination and retaliation
claims. In the alternative, the Magistrate Judge recommends
allowing Plaintiff to amend his Complaint in the event that
this Court determine his pleading is deficient.
partial objections to the Report, Defendant argues that
Plaintiff's Complaint fails to meet the applicable
pleading standard recognized by this Court with respect to
his discrimination and retaliation claims. It contends that
these claims should have been dismissed with prejudice
because it is improper to allow the Charge to essentially
stand in for a Complaint. In the alternative, Defendant asserts
that the Court should dismiss this action without prejudice
so that Plaintiff can file an amended complaint that sets
forth factual allegations to support his discrimination and
action, Plaintiff's factual allegations in his Complaint
consist of the following sentence: “The company UPS
discriminated against me retaliation against me and harrase
me.” He does provide additional information in the
Charge that he attaches to the Complaint. Further, the Court
notes that, as a pro se Plaintiff, he is entitled to liberal
construction of his pleadings.
even under this liberal standard, Plaintiff's Complaint
is insufficient. The Supreme Court has made clear that Rule
8's “plain statement” requirement demands
“more than labels and conclusions.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). And
“liberal construction [of a pro se party's
pleadings] does not require a court to conjure allegations on
a litigant's behalf.” Martin v. Overton,
391 F.3d 710, 714 (6th Cir.2004); see also Sayadian v.
Facebook, Inc., No. CV GLR-15-3339, 2016 WL 192538, at
*2 (D. Md. Jan. 15, 2016) (“Even affording
Sayadian's Complaint the most liberal construction, the
Court finds that it fails to state a claim on which relief
may be granted. Sayadian's Complaint consists of nothing
more than a threadbare recitation of the elements of his
causes of action that is completely devoid of factual
enhancement.”). Moreover, while it may be appropriate
to look to the Charge to supplement a deficient complaint,
the Court finds that to allow this case to proceed in its
current condition would be tantamount to allowing the Charge
to stand in for the Complaint rather than supplement.
upon the foregoing, Plaintiff's Complaint is subject to
dismissal as it fails to state a claim upon which relief may
be granted against Defendant. Plaintiff is directed
to file an Amended Complaint to correct the defects
identified above within 15 days of this Order.
Plaintiff is reminded that an amended complaint replaces the
original complaint and should be complete in itself. See
Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th
Cir. 2001) (“As a general rule, an amended pleading
ordinarily supersedes the original and renders it of no legal
effect.”) (citation and internal quotation marks
omitted); see also 6 Charles Alan Wright et al.,
Federal Practice and Procedure § 1476 (3d ed.
2017) ("A pleading that has been amended under Rule
15(a) supersedes the pleading it modifies and remains in
effect throughout the action unless it subsequently is
modified. Once an amended pleading is interposed, the
original pleading no longer performs any function in the case
. . . ."). If Plaintiff fails to file an amended
complaint, this action will be subject to dismissal for
failure to prosecute and failure to comply with an Order of
Court adopts in part the Report to the extent it recommends
allowing Plaintiff to amend his Complaint. The remainder of
the Report is held in abeyance. Defendant's Motion to
Dismiss is held in abeyance.
Clerk of Court is directed to mail Plaintiff a blank
complaint for employment discrimination along with a copy of