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Parker v. Owens

United States District Court, W.D. North Carolina, Charlotte Division

March 8, 2018

ANTHONY PARKER, Plaintiff,
v.
SHAWN OWENS, Defendant.

          ORDER OF DISMISSAL

          MAX O. COGBURN, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on review of a Memorandum and Recommendation issued in this matter. In the Memorandum and Recommendation, the magistrate judge advised the parties of the right to file objections within 14 days (plus three days for service by mail inasmuch as plaintiff is proceeding pro se), all in accordance with 28, United States Code, Section 636(b)(1)(c). Objections have been filed within the time allowed.

         FINDINGS AND CONCLUSIONS

         I. Applicable Standard

         The Federal Magistrates Act of 1979, as amended, provides that “a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are raised and no factual issues are challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute “when a party makes general or conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.” Id. Moreover, the statute does not on its face require any review at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final determination and outcome of the case, and accordingly the Court has conducted a careful review of the magistrate judge's recommendation.

         II. Discussion

         The Court has given careful consideration to each Objection and conducted a de novo review as warranted.

         Plaintiff, proceeding pro se, has filed documents entitled “Objections to Order Dated Febraury [sic.] 12, 2018' (#11) and “Reply to Defendants' [sic.] Limited Partial Objection to Courts' [sic.] Memorandum and Recommendation and Order” (#15). Defendant has filed a Response in Opposition to Plaintiff's Objections to Order Dated February 12, 2018” (#13). Defendant has also filed its own “Limited Partial Objection to the Court's Memorandum and Recommendation and Order” (#12).

         The Court is mindful of the latitude extended to the pleadings of pro se litigants. Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a pro se] petitioner's inartful pleading liberally”). However, courts cannot act as the pro se plaintiff's advocate or develop claims which the plaintiff failed to raise clearly on the face of his complaint. Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to assume the role of advocate for the pro se plaintiff).

         Turning first to plaintiff's Objections, plaintiff first contends that the magistrate judge lacked authority to “conduct civil proceedings and order entry of judgment” without the consent of the parties. Plaintiff is simply wrong as to the jurisdiction of magistrate judges, who are specifically authorized to preside over civil proceedings and enter orders on non-dispositive issues and recommendations on dispositive motions. 28 U.S.C. 636(b). While plaintiff is correct that a magistrate judge cannot enter judgment in a civil matter without the consent of the parties, 28 U.S.C. § 636(c), the magistrate judge has not entered a judgment in this case, but recommended that the undersigned dismiss his federal claims, as permitted under § 636(b)(1)(B). This objection is overruled.

         Plaintiff's second objection appears to be to Judge Cayer's determination that federal question removal to this Court was appropriate. Plaintiff contends that this Court lacks jurisdiction to determine whether he has stated claims because those claims should be heard in state court. Plaintiff cites to the “violation of public policy requirement” under the NCEEPA as the reason this Court lacks jurisdiction to resolve his federal claims. While it is also unlawful under state law to discriminate against employees, and there may well have been ways to craft a complaint that avoided federal law, the removal in this case was occasioned by plaintiff's inclusion in his complaint of two federal causes of action, to wit, causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. This Court has original jurisdiction over those federal claims and defendant had an absolute right to remove those claims to this Court. The fact that plaintiff has also brought a claim under the NCEEPA, and other state law claims, in no manner impairs defendant's right to remove. Finally, review of the docket reveals that defendant timely removed the state action to this Court. Plaintiff's Objection to Judge Cayer's finding that this action was properly removed is overruled.

         While no objection is made to Judge Cayer's substantive finding, to wit, that there is no viable claim for supervisory liability under Title VII, the ADEA, or the NCEEPA, this Court fully concurs. Supervisors are not liable in their individual capacities under Title VII. Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998). There is no individual liability under the ADEA. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994). Likewise, North Carolina does not recognize a claim against a supervisor sued in an individual capacity for wrongful discharge in violation of public policy. Cox v. Indian Head Industries, Inc., 187 F.R.D. 531, 536 (W.D. N.C. 1999).

         Finally, the Court has considered defendant's objection to Judge Cayer's recommendation that this Court decline to exercise supplemental jurisdiction and remand those claims to state court. Judge Cayer explained that declining supplemental jurisdiction where all federal claims have been dismissed is consistent with the general principle that federal jurisdiction is limited. Chesapeake Ranch Water Co. v. Board of Comm'rs of Calvert County, 401 F.3d 274, 277 (4th Cir. 2005) (having dismissed federal claims, district court properly declined supplemental jurisdiction of state claims). Defendant argues that judicial economy suggests that this Court should exercise supplemental jurisdiction, consider its Motion to Dismiss as to plaintiff's remaining state law claims, and dismiss those claims. Defendant argues that remanding the remaining claims to state court would require additional expense for the individual defendant and possibly require him to defend against these charges in state and federal court simultaneously. He also cites related litigation filed by plaintiff which remains pending in this Court, to wit, Parker v. Curtis Wright Corp., 3:17cv639-MOC-DCK. It appearing that Judge Cayer was likely unaware of the pendency of the second Parker case because it was assigned to another magistrate judge, the Court will now exercise its discretion and take up the remainder of the motion as to the remaining supplemental claims even though Judge Cayer's recommendation is fully consistent with case law.

         In determining whether a claim can survive a motion under Rule 12(b)(6), the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) that the “no set of facts” standard only describes the “breadth of opportunity to prove what an adequate complaint claims, not the minimum adequate pleading to govern a complaint's survival.” Id. at 563. The Court specifically rejected use of the “no set of facts” standard because such standard would improperly allow a “wholly conclusory statement of claim” to “survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts' to support recovery.” Id. at 561 (alteration ...


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