United States District Court, N.D. Alabama, Southern Division
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
employment discrimination action was filed on April 25, 2016,
by the pro se Plaintiff, Janie Sue Akins, against
the Defendant, her former employer, the Jefferson County
Department of Human Resources. (Doc. 1). The case comes
before the Court on the Defendant's motion, filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss the Plaintiff's claims for failure
to state a claim upon which relief may be granted. (Doc. 20).
The motion also alleges that the Plaintiff's action
should be dismissed pursuant to Rule 41(b), for failure to
comply with prior orders of this Court. For the reasons
stated herein, the motion will be GRANTED.
30, 2016, this Court entered the following Order:
On May 25, 2016, the Plaintiff was ordered to file an Amended
Complaint within 21 days. (Doc. 4 at 1). In that same
order, the Plaintiff was warned that “[f]ailure to file
an amended complaint within the time prescribed may result in
the dismissal of all claims for want of prosecution.
See Fed. R. Civ. P. 41 (b).” (Doc. 4 at 2).
More than 21 days have elapsed and no Amended Complaint has
been filed. Accordingly, this action is DISMISSED with
prejudice pursuant to Fed.R.Civ.P. 41(b).
(Doc. 9 at 1) (emphasis in original). On July 19, 2016, this
The Plaintiff has now filed a document entitled “Motion
to Not Reassign or Dismiss This Case.” (Doc.
10) (emphasis in original). In that document, the Plaintiff
states that computer problems prevented her from receiving
service of the orders entered in this case when they were
entered. She also explains that she only recently, on July 5,
2016, received “the court documents, ” but does
not specify which documents are referenced. She states that
“she was not knowledgeable of [the Court's orders]
until after the requested date.” (Doc. 10 at 1). She
requests that her case not be dismissed or reassigned, that
this Court provide future notices to her via regular mail,
and that this court reconsider its denial of appointed
The Court treats the motion as a motion to alter or amend
made pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. The motion is GRANTED to the extent that the order
dismissing this case is hereby VACATED, and this case is
REINSTATED. The Plaintiff is hereby ORDERED to file her
Amended Complaint within 21 days after the date of this
Order. The failure to file an Amended Complaint within the
time prescribed may result in the dismissal of all claims for
want of prosecution. See Fed.R.Civ.P. 41 (b). The Clerk of
Court is hereby ORDERED to send service copies off all Orders
in this case to the pro se Plaintiff by U.S. Mail.
The Plaintiff's motion is DENIED to the extent she again
seeks the appointment of counsel and that she asks that this
case not remain reassigned to the undersigned.
(Doc. 11 at 1-2) (emphasis in original and footnote omitted).
On August 9, 2016, this Court entered an Order which stated,
in pertinent part:
of filing an Amended Complaint, the Plaintiff has filed a 4
page, single spaced letter, in 10-point font, which has been
docketed as an Amended Complaint. This letter does not have
the case caption, and fails to comply with the
magistrate's directive that
[t]he amended complaint must refer to the federal statute or
statutes being invoked, comply with the FEDERAL RULES OF
CIVIL PROCEDURE, and be suitable for service on the defendant
or defendants named therein. In the amended complaint, the
plaintiff must clearly set forth the facts concerning any
incident about which she complains. Specifically, she must
(1) identify each defendant she alleges participated in the
violation of her rights; (2) describe what each defendant did
that amounted to a violation of her rights; (3) state when
and where the incidents underlying the violation of her
rights occurred; (4) describe how the acts and/or omissions
of each defendant resulted in harm to her; (5) identify the
nature of that harm (e.g., loss of money, income, or
property, or interference with her right to engage in or
refrain from some activity); and (6) state the relief she
seeks (e.g., compensatory and/or punitive damages or some
form of injunctive relief, including any request for
attorneys' fees, costs, and expenses). Conclusory and
general assertions are insufficient to state a claim on which
relief may be granted. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The amended complaint must include all
of the plaintiff's claims in this action and must not
refer back to the original complaint. Only claims set forth
in the amended complaint will be considered.
(Doc. 4 at 2). Most importantly, the letter fails to give any
dates so that the Court can determine whether this action is
timely filed. The letter also fails to refer to the federal
statute or statutes being invoked, so that the Court can
determine whether it has jurisdiction.
Be that as it may, the Court will allow the Plaintiff one
more opportunity to clearly, and in an organized and
understandable fashion, set out a proper Complaint. The new
Complaint should be filed into the record within 21 days
after the date of this order. It must be double spaced, in 14
point type, have a case caption identical to the one at the
beginning of this Order and otherwise comply with the
requirements of the Federal Rules of Civil Procedure.
Further, it should have numbered sections (with discussion)
which correspond to the magistrate's directive in
document 4. The failure to file an Amended Complaint, which
complies with these requirements, within the time prescribed,
may result in the dismissal of all claims for want of
prosecution. See Fed.R.Civ.P. 41 (b).
To the extent that the Plaintiff's letter could be
considered another motion for the appointment of counsel,
that motion is, again, DENIED.
(Doc. 13 at 1-3).
Amended Complaint was due on August 30, 2016. The Plaintiff
filed nothing by the deadlines. On September 2, 2016, the
Plaintiff filed another letter which did not comply with this
Court's previous directives. (Doc. 14). That letter will
not be considered by the Court.
September 6, 2015, a week after the deadline for doing so,
the Plaintiff filed an Amended Complaint. (Doc. 15). The
record reflects that the Defendant was finally served on
January 30, 2017. On February 15, 2017, the Defendant filed a
motion to dismiss. (Doc. 20). On February 16, 2017, this
Court entered an Order which provided:
The Jefferson County Department of Human Resources has filed
a motion to dismiss this case pursuant to Rules 41(b) and
12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 20).
In accordance with this Court's Uniform Initial Order
(doc. 7), entered in this case on June 29, 2016, the pro
se Plaintiff may file any response to the motion no
later than March 8, 2017. The Defendant's reply is due no
later than March 20, 2017.
(Doc. 21 at 1). The Plaintiff has filed no response to the
motion, and the Defendant has filed no reply. The motion is
now ripe for review.
STANDARD OF REVIEW
41(b) of the Federal Rules of Civil Procedure provides that
“[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). Unless otherwise noted, dismissal under
this rule is with prejudice. Id. “A dismissal
[with prejudice] bar[s] the plaintiff from
prosecuting any later lawsuit on the same claim.”
Black's Law Dictionary (10th ed. 2014). The Eleventh
Circuit has noted:
Although dismissal with prejudice is a drastic remedy,
“[t]he court's power to dismiss is an inherent
aspect of its authority to enforce its orders and insure
prompt disposition of lawsuits.” Goforth v.
Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Moreover
while dismissal is an extraordinary remedy, “dismissal
upon disregard of an order, especially where the litigant has
been forewarned, generally is not an abuse of
discretion.” Moon v. Newsome, 863 F.2d 835,
837 (11th Cir.1989).
Hickman v. Hickman, 563 F.App'x 742, 743 (11th
the Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). However, to survive a motion to dismiss
brought under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556)
(“Iqbal”). That is, the complaint must
include enough facts “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citation and footnote omitted). Pleadings that contain
nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557 (citation omitted).
claim has been stated adequately, however, “it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to
dismiss, a court must “take the factual allegations in
the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308
(11th Cir. 2006)).
[Courts] construe pleadings filed by pro se parties
liberally. Alba v. Montford, 517 F.3d 1249, 1252
(11th Cir.2008). This liberal construction, however,
“does not give a court license to serve as de facto
counsel for a party, or to rewrite an otherwise deficient
pleading in order to sustain an action.” GJR Invs.,
Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir.1998) (citations omitted), overruled on other
grounds, v. as stated in Randall v. Scott, 610 F.3d 701,
709 (11th Cir.2010). Moreover, pro se litigants still are
required to conform to procedural rules. Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir.2007).
Hickman, 563 F.App'x at 743.
ALLEGATIONS IN THE AMENDED COMPLAINT
Plaintiff's Complaint appears to make two claims-one for
“DISABILITY” and one for “RACISM.”
Plaintiff vaguely states that her “ADHD disability was
used to terminate [her] job [and] [her] letter of
accommodations request was ignored.” (Doc. 15 at 1).She
then implies, but does not specifically state, that she may
have been late from time to time because of her condition.
She also states that she was pulled over by the police which
she says “appeared to be done on purpose to cause me
late arrival on days I almost made it on time.” (Doc.
15 at 2). The Amended Complaint states:
How could they get away with ignoring my letter of
accommodations for my ADHD disability; it is obvious they
used it against me because all the years I was employed there
it never mattered that I was a few minutes late ...