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Smith v. Charter Communications

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

March 13, 2019

HARVEY SMITH, Plaintiff,



         THIS MATTER is before the Court on review of a Memorandum and Recommendation issued in this matter. In the Memorandum and Recommendation, the Honorable David S. Cayer, United States Magistrate Judge, advised the parties of the right to file objections within 14 days (plus three days for service by mail, as plaintiff is proceeding pro se), all in accordance with 28 U.S.C. § 636(b)(1)(c). Objections have been filed within the time allowed.[1]

         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 Judge Cayer'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, 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 Judge Cayer's recommendation.

         II. Background

         This action arises from an employment dispute between plaintiff, Harvey Smith, and his employer, Charter Communications. In his Complaint, Mr. Smith alleged Charter leadership has engaged in a pattern of discriminatory, harassing, and retaliatory conduct since approximately February 2015. He claims such behavior prevented him from moving forward or laterally within the company, caused an altercation that lead to his suspension in November 2016, and ultimately brought about his termination on March 21, 2017. In all, the Complaint contained six (6) claims based on Title VII of the Civil Rights Act (“Title VII”) and the Americans with Disabilities Act (“ADA”). Charter denied these allegations. On June 5, 2018, the parties participated in a mediated settlement conference using the district's Pro Se Settlement Assistance Program. The outcome of the mediation was an impasse. Plaintiff has since attempted to amend his Complaint twice and defendant has filed a Motion to Dismiss.

         On August 27, 2018, Magistrate Judge David S. Cayer issued a Memorandum and Recommendation (#26) in which he concluded that Defendant's Motion for Partial Dismissal of the First Amended Complaint and Motion to Dismiss the Second Amended Complaint (#21) should be granted. Plaintiff has filed an Objection to Memorandum and Recommendations (#29).

         Defendant has filed a Response in Opposition to Plaintiff's Objection (#32).[2] The Court has carefully considered each objection and conducted a de novo review of the recommendations to which objection has been made.

         III. Discussion

         A. Claims Contained in the First Amended Complaint

         The Court is mindful of the latitude extended to the pleadings of pro se litigants. Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding courts should construe a pro se petitioner's inartful pleading liberally). Courts cannot, however, 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).

         While it is clear from plaintiff's Objection that he disagrees with Judge Cayer's recommendation that this action be partially dismissed, the objections are at best general or conclusory objections that mirror plaintiff's earlier pleadings and do not direct this Court to any precise error committed by Judge Cayer. As such, the Court is not able to address any specific objections to the magistrate judge's recommendation, directly. But being mindful of the latitude extended to pro se litigants and the Court's duty to review the magistrate judge's recommendation de novo, the Court has carefully considered plaintiff's contentions and construed his pleadings liberally.

         Following the unsuccessful mediation, plaintiff filed a Motion to Amend (#14) seeking leave from the Court to add claims for libel, slander, IIED, tortious interference with prospective advantage, assault, and interference and retaliation under FMLA. Due to the passage of time, plaintiff could have amended his pleadings only with leave of the Court. Fed.R.Civ.P. 15(a)(2). Judge Cayer granted the Motion as to claims for defamation and FMLA interference and retaliation but denied it in all other respects because the proposed Amended Complaint did not state facts sufficient to support such claims. The Court instructed Plaintiff to file an Amended Complaint within fifteen (15) days of the Order, making the deadline to amend August 1, 2018.

         Despite being granted leave to include FMLA claims, plaintiff's First Amended Complaint included no FMLA claims, but attempted to assert claims for which leave had not been granted, including claims under Section 1981, the North Carolina Civil Rights Act, IIED, NIED, and punitive damages. The only claim contained in the First Amended Complaint for which leave to amend had been granted was plaintiff's claim for libel. Thus, the only new claim plaintiff has properly asserted is his claim for libel. The Court fully concurs in Judge Cayer's determination that the only new claim plaintiff has properly asserted is one for libel.

         B. Abandonment of Claims Asserted in the Original Complaint

          More problematic, plaintiff also failed to reassert the six claims under Title VII and the ADA from his initial Complaint in his First Amended Complaint. Arguing that the claims in the original Complaint should be dismissed, defendant argued in its Reply in Support of its Motion to Dismiss (#25), as follows:

Plaintiff's First Amended Complaint fails to include any allegations regarding FMLA interference or retaliation and fails to re-allege any of the six Title VII and ADA claims Plaintiff asserted in his initial Complaint. Accordingly, those claims must also be dismissed as no longer before the Court. See Young v. City of Mt. Ranier, 238 F.3d 567, 573 (4th Cir. 2001) (“The general rule … is that an amended pleaded supersedes the original pleading, rendering the original pleading of no effect. ...

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