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Zinnerman v. Appleton Plus People Corp.

United States District Court, M.D. Alabama, Northern Division

November 16, 2017

CALLIE ZINNERMAN, Plaintiff,
v.
APPLETON PLUS PEOPLE CORP., Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b)(1), this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law (Doc. 4, entered 8/4/17). For the reasons discussed below, the Magistrate Judge recommends this case be dismissed for failure to prosecute and remaining motions be DENIED as moot.

         I. Background

         This complaint was filed by Callie Zinnerman (“Plaintiff” or “Zinnerman”) on July 20, 2017. See Doc. 1. Plaintiff - who proceeds pro se - asserts claims under the Title VII, 42 U.S.C. § 2000e and the Age Discrimination Employment Act, 29 U.S.C. § 621. Defendant is Appleton Plus People Corporation (“Defendant” or “Appleton”) where Plaintiff remains an employee. Plaintiff states she is a seventy-one-year-old female of African-American descent. In 2015, Appleton took over the employment of substitute teachers in Montgomery County, Alabama schools. Plaintiff states another teacher who is younger and white does the same job, but is paid more and received additional job opportunities not provided to Plaintiff. The Court granted her motion to proceed in forma pauperis. See Doc. 5.

         On September 7, 2017, Defendant filed its motion to quash service under Federal Rule of Civil Procedure 4. See Doc. 8. Specifically, Defendant asserted service was not executed by an appropriate person and Plaintiff's failure to comply with the requirements of Rule 4(h), that the return of service should be quashed.

         On September 28, 2017, the Court entered a show cause order requiring Plaintiff to respond to the motion to quash on or before October 16, 2017. See Doc. 9. On October 20, 2017, the Court received a notice from the United States Postal Service which indicated the Court's order sent to Plaintiff was returned as undeliverable with a note “returned to sender-unclaimed, unable to forward.” With no additional filings from the Plaintiff, the Court entered an order directing Plaintiff to update the Court with her updated address and to respond to the prior order by November 13, 2017. The Court stated:

The plaintiff is specifically cautioned that if she fails [to] file a response as required by this order, the court will treat her failure as an abandonment of the claims set forth in the complaint and as a failure to prosecute this action and the undersigned will recommend that this case be dismissed.

See Doc. 10. No. response was filed to the second order and Plaintiff has filed no additional pleadings with the Court.

         II. Jurisdiction

         Zinnerman asserts claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) as she brings claims under Title VII and the ADEA. The parties do not contest personal jurisdiction or venue and there are adequate allegations to support both. The Defendant does contest service.

         III. Discussion and Analysis

         All litigants, pro se or not, must comply with the Federal Rules of Civil Procedure. Generally, complaints by pro se plaintiffs are read more liberally than those drafted by attorneys. Osahar v. U.S. Postal Serv., 297 Fed.Appx. 863, 864 (11th Cir. 2008). Although the court is required to liberally construe a pro se litigant's pleadings, “this leniency 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.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quoting GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)); see also Giles v. Wal-Mart Distrib. Ctr., 359 Fed.Appx. 91, 93 (11th Cir. 2009) (internal citations and quotation omitted) (“Although pro se pleadings are held to a less strict standard than pleadings filed by lawyers and thus are construed liberally, this liberal construction 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.”).

         Additionally, because the Plaintiff proceeds in forma pauperis, the Court has an ongoing requirement to conduct a review to determine whether the claims are frivolous, malicious, or fails to state a claim on which relief may be granted under to 28 U.S.C. § 1915(e)(2)(B). The statute provides, in pertinent part: “the court shall dismiss the case at any time if the court determines that . . . the action or appeal - (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)(B).

         Ultimately, this case merits dismissal for failure to prosecute. On September 28, 2017, the Court entered its order that Plaintiff show cause why the Defendant's motion to quash should not be granted. See Doc. 8. No. response was filed and the order was sent back as “return to sender-unclaimed, unable to forward.” On October 27, 2017, the Court entered an order directing that Plaintiff shall update the Court with her current address by November 13, 2017 and a second opportunity to address the administration of this case. See Doc. 10. The plaintiff was specifically cautioned that the failure to comply with this order would result in the ...


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