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Burks v. Mobile County Public Schools System

United States District Court, S.D. Alabama, Southern Division

April 2, 2019

ANITA BURKS, Plaintiff,
v.
MOBILE COUNTY PUBLIC SCHOOL SYSTEM, Defendant.

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the Court on the Report and Recommendation entered on January 8, 2019 (d0c. 4). After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, and for the reasons set forth herein, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated January 8, 2019, is ADOPTED as the opinion of this Court. Accordingly, this action is dismissed without prejudice, prior to service of process, for failure to prosecute and comply with this Court's Order and as frivolous and failing to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)&(ii).

         Plaintiff Anita Burks filed a wrongful termination lawsuit against Defendant Mobile County Public School System (doc. 1).[1] Plaintiff alleges that she was improperly terminated while she was on “approved medical leave due to an on-the-job injury”. She alleges that Defendants violated the Family Medical Leave Act (Id.).[2] Plaintiff moved to proceed without prepayment of fees (doc. 2). The motion was denied and she was ordered to pay the filing fee no later than October 26, 2018 (doc. 3). The fee was not paid. Thereafter, the Magistrate Judge entered a Report and Recommendation for dismissal without prejudice for failure to prosecute by failing to comply with the Court's order (doc. 4).

         The Report and Recommendation was mailed to Plaintiff. However, the postal service returned the mail noting: “Return to Sender”, “Undeliverable as Addressed”, and “Unable to Forward” (doc. 5). Review of the docket indicated that the Report and Recommendation was sent to “Mobile, Al 36544” instead of “Irvington, Al 36544”. The Court directed the Clerk to re-mail the Report and Recommendation to two addresses found in the record. Specifically,

P.O. Box 1017 8615 - Lot A Beverly Rd. Extension
Irvington, Al 36544 St. Elmo-Irvington, Al 36544

         Review of the docket also indicated that, although not returned, the order denying Plaintiff's motion to proceed without prepayment of fees and ordering her to pay the filing fee had been sent to the same incorrect address. Thus, it appears that Plaintiff's first notice of the denial of her motion may have been receipt of the second mailing of the Report and Recommendation.

         Plaintiff timely filed an objection to the Report and Recommendation (doc. 7). Plaintiff requests the Court refrain from dismissing her case and seeks reconsideration of her financial status. In that regard, Plaintiff states that she provides support[3] to her high school aged son, and that she has utilities (“light/gas bills be $350.00 $300.00 monthly or more”), insurance, medical, and food expenses (doc. 7). She states that her “income is really not enough funds to take care of my household” (Id.). In her motion, Plaintiff reports providing $250.00 per month support for her son, $98.13 and $289.00 per month for insurance, and $350.00 per month for power (doc. 2). Adding the estimated cost of $250.00 per month for gas, the expenses for which Plaintiff has provided an estimated monthly amount total approximately $1, 237.00. Plaintiff did not include an estimate for purchase of food and clothing, yearly repairs, or the monthly payment toward the $800.00 title loan against her vehicle.

         With respect to income, Plaintiff reports $725.00 per month from her pension and $800.00 per month spousal support. She also reports receipt of $2, 401.85 from the Alabama Board of Adjustment for mileage and medical out of pocket.[4] Annualizing the Board of Adjustment payment ($200.00) and adding that to her pension and spousal support, totals an estimated monthly income of $1, 725.00.

         Subtracting the estimated expenses from the estimated monthly income yields approximately $488.00. As the Magistrate Judge determined, Plaintiff does not lack the means to pay the $400.00 filing fee. Therefore, the recommendation that this action be dismissed without prejudice for failure to comply with the Court's order to pay the filing is adopted as the opinion of the Court.

         Additionally, the Court looks to whether the action is due to be dismissed as frivolous or malicious, or fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) “When faced with a motion to proceed in forma pauperis, “the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing this action; and second, whether the action is frivolous or malicious, ” fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” Scott v. Lawson, 2017 WL 3327063, at *2 (S.D. Ala. June 20, 2017), report and recommendation adopted, 2017 WL 3326765 (S.D. Ala. Aug. 3, 2017) (citing 28 U.S.C. § 1915(e)(2)(B)).

         Plaintiff alleges that she was wrongfully terminated in violation of the Family Medical Leave Act and the “contract agreement” while she was on approved medical leave due to an on-the-job injury. She disputes that resigned from her teaching position. Plaintiff alleges that she received a letter from the School System stating that she resigned, but the resignation form attached to the letter did not have her signature. She alleges that the “Board Committee approved a blank form without signature” (doc. 1, p. 2).

         According to the exhibits attached to her complaint, Plaintiff was injured in the classroom on April 1, 2015 (doc. 1-2, p. 37). Plaintiff was placed on medical leave and her leave approval was renewed several times. Relevant to her complaint, on August 15, 2016, the School System mailed a letter to Plaintiff indicating that leave was approved from August 6, 2016 through October 31, 2016 (doc. 1-2, p. 25, 30). However, on August 29, 2016, the School System mailed Plaintiff a letter indicating that she had been cleared to return to work on August 22, 2016 (doc. 1-2, p. 3, 33). On September 20, 2016, someone wrote on the letter “Burks has not responded or returned to work. Place on the voluntary resignation list per Mr. Hack” (Id.) The letter is stamped “submitted to Board September 28, 2016.” (Id.)

         Plaintiff appears to have been on FMLA at that time. On September 16, 2016, the School System wrote Plaintiff that she was on a “period of leave without pay” beginning August 10, 2016, that she was expected to return to work November 2016, and that she was granted leave under the FMLA, which would end ...


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